Anup Kumar v. State of Kerala and The Excise Commissioner

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 WP(C).No. 2783 of 2019** ## **PETITIONER :** **ANUP KUMAR, AGED 65 YEARS S/O.AYYAPPAN PILLAI, VAISHNAVIYIL HOUSE, 208, GIRINAGAR, KADAVANTHRA, KOCHI-20.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY(TAXES), STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001 2 THE EXCISE COMMISSIONER STATE OF KERALA, THIRUVANANTHAPURAM-695001.** **BY SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2783 of 2019** **2** ## **JUDGMENT** The petitioner, who applied for FL-3 license on 21.10.2017 as evidenced by Ext.P1 representation in respect of Edayarackal Residency, Neyyattinkara, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 01.03.2018 of the 2[nd] respondent Excise Commissioner and Ext.P14 order dated 16.01.2019 of the 1[st] respondent State. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to grant FL-3 license in pursuance of Ext.P1 application in respect of the hotel Edayarackal Residency, Neyyattinkara. 2. On 30.01.2019, when this writ petition came up for admission, this Court passed the following order; _“Ext.P14 order, which is under challenge in this writ petition, is one passed pursuant to the direction contained in Ext.P6 judgment of this Court dated 12.6.2018 in W.P.(C)No.19367/2018._ _2. The reasoning of the 1[st] respondent in Ext.P14_ **WP(C).No. 2783 of 2019** **3** ## _order reads thus;_ _“3. Government have examined the matter in detail and found no reason to interfere with the decision of the Excise Commissioner and accordingly the Revision Petition submitted by Sri.A.Anup Kumar is rejected, as the hotel does not satisfy the distance limit under Rule 13(3), Note 2 of Foreign Liquor Rules.”_ _3. Learned counsel for the petitioner would point out that Ext.P14 order is one passed without notice to the petitioner._ _Learned Senior Government Pleader seeks time to get instructions.”_ 3. On 08.02.2019, when this writ petition came up for consideration, the learned Senior Government Pleader, on instructions, submitted that the 1[st] respondent proposes to withdraw Ext.P14 order, without prejudice to pass a fresh order, after conducting a personal hearing. It was also submitted that a statement on behalf of the 1[st] respondent shall be placed on record by 12.02.2019. 4. Today, when the case is taken up for further consideration, an affidavit on behalf of the 1[st] **WP(C).No. 2783 of 2019** **4** respondent, dated 16.02.2019, is placed on record, wherein it has been stated that since Ext.P14 order is one issued without notice to the petitioner, the Government has decided to review the said order and a hearing notice has been issued to the petitioner, vide letter dated 11.02.2019, whereby a personal hearing is scheduled to be held on 19.02.2019 before the Additional Chief Secretary (Excise). 5. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents. 6. Ext.P14 order passed by the 1[st] respondent is one issued pursuant to the direction contained in Ext.P6 judgment of this Court dated 12.06.2018 in W.P. (C).No.19367 of 2018. By the said judgment, the writ petition was disposed of by directing the 1[st] respondent to take up, consider and pass orders on the revision petition filed by the petitioner against Ext.P5 order dated **WP(C).No. 2783 of 2019** **5** 01.03.2018 of the 2[nd] respondent Excise Commissioner, with notice to the petitioner within a period of two months from the date of receipt of a copy of that judgment. 7. Despite the specific direction contained in Ext.P6 judgment, the 1[st] respondent has chosen to reject the revision petition filed by the petitioner, vide Ext.P14 order, without conducting a personal hearing, in flagrant violation of the principles of natural justice. A reading of Ext.P14 order would also not indicate that the 1[st] respondent has given due consideration of the factual and legal contentions raised by the petitioner. 8. In _**Commissioner of Police, Bombay v. Gordhandas Bhanji**_ , _**[1952 KHC 291 : AIR 1952 SC 16 : 1952 SCR 135 : 54 Bom LR 383]**_ the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making **WP(C).No. 2783 of 2019** **6** the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in _**Gordhandas Bhanji's case (supra)**_ , the Apex Court has reiterated in _**Mohinder Singh Gill v. Chief Election Commissioner [1978 KHC 478 : 1978 (1) SCC 405 : AIR 1978 SC 851 : 1978 (2) SCR 272]**_ that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. **WP(C).No. 2783 of 2019** **7** 9. In **Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree** [ **1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 10. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank and others Vs. P.C.Kakkar** [ **2003) 4 SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to **WP(C).No. 2783 of 2019** **8** perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 11. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India and others** **[1992 (4) SCC 605]** that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for **WP(C).No. 2783 of 2019** **9** their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 12. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a **WP(C).No. 2783 of 2019** **10** court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 13. In **B.A.Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515]** , the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is antithesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Articles 14 and 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a **WP(C).No. 2783 of 2019** **11** speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not been considered much less reasons assigned to overrule them. Since the 1[st] respondent has already recalled Ext.P14 order dated 16.01.2019, this writ petition is disposed of recording the said fact and directing the said respondent to re-consider the revision petition filed by the petitioner against Ext.P5 order dated 01.03.2018 of the 2[nd] respondent Excise Commissioner and pass a reasoned order, taking note of the law laid down in the decisions referred to supra. Such exercise shall be undertaken, after issuing fresh notice to the petitioner, as expeditious as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment. **WP(C).No. 2783 of 2019** **12** It is made clear that Ext.P14 order is interfered with only for the reason stated hereinbefore, and the legal and factual contentions raised by the petitioner are left open to be raised before the 1[st] respondent at appropriate stage. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/21/2 **WP(C).No. 2783 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF REPRESENTATION DATED 2110-2017 SUBMITTED BY THE PETITIONER FOR FL-3 LICENSE BEFORE THE EXCISE COMMISSIONER.** - **EXHIBIT P2 TRUE COPY OF CIRCULAR DATED 20-011996 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P3 TRUE COPY OF JUDGMENT IN WPC.NO.34672 OF 2016 DATED 09-05-2017 OF THIS HON'BLE COURT.** - **EXHIBIT P4 TRUE COPY OF JUDGMENT IN WPC. NO.5348 OF 2018 DATED 01-03-2018 OF THIS HON'BLE COURT.** **EXHIBIT P5 TRUE COPY OF ORDER NO.EXC/FL3L/00012/ 2018XC7 DATED 01-03-2018 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 12-062018 IN WPC.NO.19367 OF 2018 OF THIS HON'BLE COURT.** - **EXHIBIT P7 TRUE COPY OF REPLY DATED 01-08-2018 UNDER THE RIGHT TO INFORMATION ACT, 2005.** - **EXHIBIT P8 TRUE COPY OF REPORT OF THE CIRCLE INSPECTOR OF EXCISE, NEYYATTINKARA DATED 05-02-2018.** - **EXHIBIT P9 TRUE COPY OF REPORT OF DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM DATED 12-03-2018.** - **EXHIBIT P10 TRUE COPY OF REPLY DATED 01-10-2018 UNDER THE RIGHT TO INFORMATION ACT, 2005.** - **EXHIBIT P11 TRUE COPY OF REQUEST OF THE ADDITIONAL CHIEF SECRETARY DATED 06-** **WP(C).No. 2783 of 2019** **14** **06-2018. EXHIBIT P12 TRUE COPY OF REPLY OF EXCISE COMMISSIONER, THIRUVANANTHAPURAM DATED 17-07-2018. EXHIBIT P13 TRUE COPY OF JUDGMENT DATED 17-012019 IN COC.NO.2220 OF 2018 OF THIS HON'BLE COURT. EXHIBIT P14 TRUE COPY OF ORDER DATED 16-01-2019 ISSUED BY THE 1ST RESPONDENT.**