- (1.) This appeal by special leave is directed against the order of the High Court of Judicature at Patna rejecting 'in limine' an application for a writ of certiorari filed under Art. 226 of the Constitution.
(2.) The facts giving rise to this appeal may be briefly stated. There is a country liquor shop in Dumka Town. Originally one Hari Prasad Sah was the licensee of that shop, but his licence was cancelled by the Excise Authorities. Thereupon a notice was issued inviting applications for the settlement of the shop. One Jadu Manjhi, along with others, applied for the licence. On March 22,1961, for the settlement of the shop lots were drawn by the Deputy Commissioner, Santal Parganas, and the draw was in favour of Jadu Manjhi. But Hari Prasad Sah, that is a previous licensee, filed an appeal against the order of the Deputy Commissioner, before the Commissioner of Santal Parganas and as it was dismissed, he moved the Board of Revenue, Bihar, and obtained a stay of the settlement of the said shop. On July 13, 1961, the Board of Revenue dismissed the petition filed by Hari Prasad Sah. Meanwhile Jadu Manjhi died and when the fact was brought to the notice of the Deputy Commissioner, he decided to hold a fresh lot on June 19, 1961 and the lot was drawn in favour of the appellant. Hari Prasad Sah filed a petition in the revenue court and obtained a stay of the settlement of the shop in favour of the appellant. Meanwhile one Basantilal Bhagat filed an application under Art 226 of the Constitution in the High Court at Patna and obtained an interim stay; but he withdrew his application on September 8, 1961. The petition filed by Hari Prasad Sah was dismissed by the Board of Revenue on July 13, 1961. On Sept. 11, 1961, the appellant furnished security and the shop was settled on him and a licence was issued in his name. After the expiry of the period of the said licence, it was renewed in his favour for 1962. On June 19, 1961, one Phudan Manjhi, son of Jadu Manjhi, filed a petition before the Deputy Commissioner for substituting his name in the place of his father on the basis of the lot drawn in favour of his father. The Deputy Commissioner rejected the application and Phudan Manjhi preferred an appeal against that order to the Commissioner of Excise; and the Commissioner remanded the case to the Deputy Commissioner to consider the fitness of Phudan Manjhi to get the licence and to consider whether the provisions of R. 145 of the Excise Manual, Vol II, would apply to the facts of his case. One Bhagwan Rajak who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner alleging that there should have been a fresh advertisement for the settlement of the shop according to cl. (13) of R. 101 of the Excise Manual Vol III; and on March 13, 1962, the Commissioner allowed his application and directed the Deputy Commissioner to take steps for a fresh settlement of the shop in accordance with rules. Against the said orders the appellant filed petitions before the Board of Revenue and the said Board, by its order dated May 30, 1962, dismissed the petitions and directed that unless the Deputy Commissioner came to a definite conclusion that Phudan Manjhi was unfit to hold the licence, he should be selected as a licensee in accordance with R. 145 of the Excise Manual, Vol. II. The result of the said proceedings is that the appellant's licence was cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving a preferential treatment to Phudan Manjhi. The appellant filed a petition under Art 226 of the Constitution in the High Court at Patna to quash the said orders. Neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue decided the petition, was made a party. It is represented to us that pursuant to the orders of the Board of Revenue the Deputy Commissioner made an enquiry, came to the conclusion that Phudan Manjhi was not fit to be selected for the grant of a licence, ant that he has not yet made a fresh settlement in view of the tendency of the present appeal.
(3.) Learned Additional Solicitor General, appearing for the appellant, contended that the Board of Revenue acted without jurisdiction in directing a fresh settlement, as neither R. 101 nor R. 145 of the Excise Manual would apply to the facts of the case: R. 101 does not apply as in this case no licence was cancelled for malpractices, and R. 145 is not attracted as Jadu Manjhi was not licensee since no licence was issued in his favour.;