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2009(1) Supreme 647
SUPREME COURT OF INDIA
Markandey Katju and R.M. Lodha, JJ.
Asit Kumar Kar — Petitioner (s)
versus
State of West Bengal & Ors. — Respondent (s)
Writ Petition (Civil) No(s). 110 of 2008
with
Writ Petition (C) Nos. 118, 119, 144 to 164, 272 to 275 of 2008
Decided on : 21-01-2009
Constitution of India, 1950 — Article 32 — Recall Petition — Writ petition filed by All Bengal Excise Licensees Association challenging policy of State of West Bengal granting additional licences for foreign liquor and country made spirit- During pendency of writ petition, and before it was withdrawn, an interim order passed by High Court staying grant of licences — Contempt petition was filed alleging that licences were granted in violation of stay order of High Court, but that contempt petition was dismissed- Against that order dismissing the contempt petition, a special leave petition was filed — In that contempt petition, Court accepted apology of the alleged contemnors, but having done so, it directed cancellation of licences — Challenge there against-Held aforesaid direction in paragraph 40 of judgment was passed without hearing persons whose licences were ordered to be cancelled — It is a basic principle of justice that no adverse orders should be passed against a party without hearing him — This is the fundamental principle of natural justice and it is a basic canon of jurisprudence — Instantly petition under Article 32 was treated as a recall petition because order passed in decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. cancelling certain licences was passed without giving opportunity of hearing to persons who had been granted licences — In these circumstances, directions in paragraph 40 of aforesaid judgment recalled-Writ petitions disposed of with said directions. (Paras 7 to 12)
Facts of the Case :
1. Writ petition was filed by All Bengal Excise Licensees Association herein in the instant case challenging policy of State of West Bengal granting additional licences for foreign liquor and country made spirit. During pendency of writ petition, and before it was withdrawn, an interim order was passed by High Court staying grant of licences. Contempt petition was filed alleging that licences were granted in violation of stay order of High Court, but that contempt petition was dismissed. Against that order dismissing the contempt petition, a special leave petition was filed. In that contempt petition, Court accepted apology of the alleged contemnors, but having done so, it directed cancellation of licences.
2. Present writ petition has been filed against said order.
Findings of the Court :
Held direction in paragraph 40 of judgment was passed without hearing persons whose licences were ordered to be cancelled. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. Instantly petition under Article 32 was treated as a recall petition because order passed in decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. cancelling certain licences was passed without giving opportunity of hearing to persons who had been granted licences .In these circumstances, directions in paragraph 40 of aforesaid judgment were recalled. Writ petitions were disposed of with said directions.
Result : Writ petitions disposed of.
Key Points: - Writ petitions under Article 32 treated as recall petitions to recall directions passed without hearing affected parties (!) (!) - Fundamental principle of natural justice: no adverse orders against a party without hearing him (!) - Court recalled the directions in paragraph 40 of the earlier judgment All Bengal Licensees Association v. Raghabendra Singh & Ors. and disposed of the writ petitions with those directions (!) - Interim High Court stay of licences during pendency; licences cancelled by contempt order challenged; recall petition addressed the lack of hearing in cancellations (!) (!) (!) - The order cancelling licences in paragraph 40 was passed without hearing; petition treated as recall under Article 32 to address due process (!) (!) - The Court clarified that if grievances exist regarding licence grants or policy, they may be challenged in appropriate proceedings before the proper court (!)
ORDER
1. These writ petitions have been filed under Article 32 of the Constitution of India.
2. It appears that the All Bengal Excise Licensees Association had filed a writ petition in the High Court of Calcutta challenging the policy of the State of West Bengal of granting additional licences for foreign liquor and country made spirit. That Petition was filed through the General Secretary of the Association. Subsequently, the writ petition was withdrawn.
3. During the pendency of the writ petition, and before it was withdrawn, an interim order had been passed by the High Court staying the grant of licences. A contempt petition was filed before the High Court alleging that licences were granted in violation of the stay order of the High Court, but that contempt petition was Dismissed. Against that order dismissing the contempt petition, a special leave petition was filed in this Court which was decided by this Court in the judgment Reported as All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11) SCC 374.
4. In that contempt petition, the Court accepted the apology of the alleged ontemnors, but having done so, in paragraph 40 of the judgment it directed cancellation of the licences for the auctions held on 20.03.2005, 21.03.2005 and 22.03.2005 and directed that their businesses shall be stopped forthwith.
6. The aforesaid direction in paragraph 40 of the judgment was passed without hearing the persons whose licences were ordered to be cancelled. In fact even the impleadment applications of such persons were rejected.
7. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence.
8. In the Seven Judge Constitution Bench of this Court, A.R. Antuley v. R.S. Nayak & Anr.1 1988 (2) SCC 602] it has been observed in paragraph 55 thereof:
“so also the violation of the principles of natural justice renders the act a nullity”.
9. One of the counsel relied upon another Five Judge Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra2 [2002 (4) SCC 388]. It is true that in paragraph 9 of the said judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party.
10. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences.
11. In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court.
12. The writ petitions are disposed of with these directions.
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