A finding of fact based on no evidence or materials on record may be quashed by a writ of certiorari as an error of law apparent on the face of the record.

PATHAK, J:- By this application under Article 226 of the Constitution the petitioner has prayed for a writ quashing the order of the Assam Board of Revenue passed on 17-8-70. Tenders were called for by the settling authority for the settlement of Sonari Country Spirit Shop for the period 1970-73. The petitioner and several other persons including the respondent No. 2 Jogesh Chandra Dutta filed tenders. The shop was settled on 17-12-1969 with the petitioner by the Sub-divisional Officer o£ Sibsagar agreeing with the unanimous ad­vice of the Advisory Committee set up under the provisions of the Assam Excise Act. Against this order of settlement three appeals were preferred before the Assam Board of Revenue. Case No. 21E of 1970 was the appeal preferred by Jogesh Chan­dra Dutta respondent No. 2. The other two appeals were numbered as 36-E and 37-E of 1970. All the three appeals were heard together and by a common judgment and order the learned Board of Revenue set aside settlement of the shop with the petitioner and ordered settlement of the same with res­pondent No. 2.

2. Mr. P. Choudhuri, the learned counsel appearing for the respondent No. 2 raises a preliminary point and submits that the petition praying for a writ of certiorari is not maintainable inasmuch as the pri­mary settling authority, namely the Sub-divisional Officer, has not been made a party. His submission is that unless the primary settling authority Is made a party in the case, no writ of certiorari can be issued. In this connection he has referred to Nazir­uddin Sirajuddin v. P. S. Lawale, AIR 1956 Nag 65.

3. Dr. t. C. Medhi, the learned Advocate-General of Assam appearing on be­half of the petitioner submits that in the instant case the primary settling authority made the settlement in favour of the peti­tioner, but on appeal the Board of Revenue set aside that order. The petitioner prays for restoration of the order of the primary settling authority by quashing the appellate order and the petitioner has no grievance against the sub-divisional Officer's order.

4. In AIR 1956 Nag 65 (supra) the petitioner questioned the order of the ap­pellate authority, which affirmed the order of the primary authority and as a result the petitioner in that case wanted the order of the primary authority as affirmed by the ap­pellate authority to be quashed by the issue of a writ of certiorari. The instant case is thus distinguishable on facts from AIR 1956 Nag 65 (supra).

5. In the instant case the petitioner prays for quashing the order of the Revenue Board and if that is quashed, the order of the primary authority will stand and there­fore in our opinion even though the primary authority has not been made a party in the instant case, a writ of certiorari may issue in the instant case if the petitioner is able to make out a case for such a writ. We may however observe that in such matters it is always advisable that both the primary authority as well as the appellate authority are made parties whether it is an order of affordance or reversal. We therefore rule out the preliminary objection.

6. The learned Advocate-General submits that in the instant case after consi­dering all the facts and circumstances of the case and in conformity with the unani­mous advice of the Advisory Committee constituted under the provisions of the Assam Excise Act, the primary authority settled the country spirit shop with the peti­tioner. The learned Revenue Board found that both the petitioner and respondent No. 2 had the requisite finance for smooth management of the shop and both of them were equally suitable tenderers. The learn­ed Revenue Board, however, took into con­sideration Executive Instruction 109 of the Assam Excise Manual and observed that res­pondent No. 2 being an unemployed edu­cated youth, he should have been given pre­ference and therefore set aside the order ol the Sub-divisional Officer. The learned

Advocate-General submits that the impugn­ed order of the learned Revenue Board is li

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