GUMAN MAL LODHA, J. - (1.) A gross misuse and abuse of power, extreme violation of law and flagrant disregard of rule of law, is the minimum, which can be said about the conduct of the respondents in arbitrarily closing down the licenced shop of the petitioner without prior intimation or letter notifying the cancellation of the licence.
(2.) THE justifications sought to be made by raising an untenable bogey of public interest makes the case of the respondents worst. THE tragedy is that in spite of the pronouncement of the Supreme Court in a number of decisions, the highlight of them being Smt. Maneka Gandhi vs. Union of India (1) the law enforcing machineries which are supposed to protect the law, have become law breakers themselves, in this case. The petitioner was an excise licensee at Sikar. With the introduction of the prohibition in the district of Sikar, the excise authorities gave licences by creating a permit system. The petitioner being an old licensee, obtained the licence for selling country-liquor on the permit system. This licence was ordered to be given by the Commissioner of Excise, Government of Rajasthan, Udaipur, vide his letter dated May 24, 1980, to the District Excise Officer, Jaipur (Rural), the copy of which is Annexure-2. The letter dated July 5, 1980 is Annexure-3, and the licence is Annexure-4. , The District Excise Officer, Jaipur (Rural), vide his letter dated July 8, 1980 stated that country-liquor licence tor the year 1980-81 for the Sikar had been granted in favour of Topan Dass, petitioner. The petitioner started selling country-liquor on permits. But, hardly three days had passed when during the night intervening 11th and 12th July, 1980, the District Excise Officer, Sikar, raided the shop in the name of search and closed the shop for good. The petitioner was completely surprised on this highhanded action of the respondents, and when he wanted to know the reason of that, he was told that the action had been taken as per the order of the District Excise Officer, Jaipur (Rural). The telegrams sent by the petitioner were of no avail. In spite of repeated and persistent approach, which included a personal interview with the Excise Commissioner, and submission of a representation no reason was intimated to him. Thereafter, finding no other alternative, the petitioner has sought redress under Article 226 of the Constitution of India before this Court. The respondents have not disputed the facts, so far as the midnight raid on the shop of the petitioner is concerned, which they have named as an inspection, but, their case is that the petitioner was being suspected to be a person doing that liquor business benami, the real owner being Kesumal, who was an old defaulter, and therefore, under the orders of the State Government they conducted the night operation resulting in closing of the shop. The Rajasthan Excise Act was enacted as early as in 1950, immediately after the integration of the State and formation of the Rajasthan State, and even before the erstwhile State of Rajasthan used to have excise laws. It is a comprehensive piece of legislation, which provides for the grant and cancellation of licences both. A licence once granted can be cancelled on the happening of certain events or in other words, on certain omissions or commissions by the licensee which has been mentioned by the legislature under Sections 34 and 35 of the Rajasthan Excise Act, 1950 (hereinafter referred to as the "Act"), Section 34 of the Act reads as under : - "34. Power to cancel and suspend licences-(1) Subject to such restrictions as the (State Government) may prescribe, the authority granting any licence, permit or pass under this Act may cancer or suspend it - (a) if it is transferred or sublet by the holder thereof without the permission of the said authority: or (b) if any duty or fee payable by the holder thereof be not duly paid; or (c) in the event of any breach by the holder of such licence, permit or pass or by his servants, or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions of such licence, permit or pass; or (d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue or of any cognizable and non-bailable offence or any offence punishable under the Dangerous Drugs Act 1930 (Central Act II of 1930) or any law relating to merchandise marks or of any offence punishable under Section 482 to 489 (both inclusive) of the Indian Penal Code; or (e) where a licence, permit or pass has been granted on the application of the grantee of an exclusive privilege under this Act, on the requisition in writing of such grantee; or (f) if the conditions of the licence, permit or pass provide for such cancellation or suspension at will. (2) When a licence, permit or pass held by any person is cancelled under sub-section (1). the authority aforesaid may cancel any other licence, permit or pass granted to such person under this Act or any other law for the time being in force relating to Excise, Revenue or under the Opium Act, 1978 (Central Act I of 1978). (3) The holder of licence, permit or pass shall not be entitled to any compensation for the cancellation or suspension thereof under this Section nor to a refund of any fee paid or deposit made in respect thereof." The authority who grants the licence, alone can cancel the licence and none else. The learned counsel for the respondents argued that that stage would come later on as at the moment, some excise departmental enquiries are being conducted by the excise authorities, to find out whether the suspension that the petitioner is a 'Benami, person functioning as a licensee for Kesumal, can be sustained and proved. It is amazing that before the excise authorities themselves are convinced of a particular charge and before issuing a notice to the petitioner to show cause against any alleged omission or commission either about the condition of the licence or regarding the rules made thereunder, the excise authorities by un-writen and un-spoken order, cancelled the licence. It reminds one of that age, when rule of law was unknown and whatever used to fall from the lips of the King, used to be the law of the land. It is a pity that even after three decades of the framing of the Constitution of India, the authorities, who are supposed to be well-conversant with the law, have chosen to act arbitrarily. The legal position that no licence can be cancelled without providing an adequate opportunity to the licensee for showing cause against the alleged omissions or commissions, is not in dispute. In Shabir Hussain vs. State (2) the Board of Revenue was required to consider exactly a similar situation, where a licence was cancelled under Section 34 of the Act. In para 7 of that judgment, placing reliance on Mrs. Leela Jain vs. The State of Rajasthan (3). it was held that the natural justice requires that a party affected must be heard before any order prejudicial to his interest is passed. It was observed that normally no authority is required to support this well-settled principle of natural justice. But, even then, the decision in Leela Jain's case (supra) supports this view. As a matter of fact, as mentioned at the very threshold, the well-known judgment, Smt. Maneka Gandhi vs. Union of India (supra) has extended new dimensions in respect of the principle of natural justice in the field of administration of law and put them on such a high pedestal that even the slightest violation has been made actionable. In Maneka Ghandhi's case Hon'ble P.N. Bhagwati; N.L. Untwalia & S. Murtaza Fazal Ali, JJ. in their classic observations held as under : "Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be does fairness in action demand that an opportunity to be heard should be given to the person affected?" Their Lordships of the Supreme Court in that case further observed as under: - "The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable." It was further observed in that judgment as under : - "It would not be right to conclude that the audi alteram partiem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such provisions were held to be incorporated in the Passports Act, 1967 by necessary implication, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. It must, therefore, be held that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21, and does not fall foul of that Article." Quite a large number of decisions of the High Courts on the Excise Act itself lays down that once a licence is granted to a licensee under the Excise Act, no order of cancellation can be passed without providing an opportunity of hearing. A reasonable opportunity of hearing and showing of cause in an enquiry to be conducted, are the most essential requirements for consideration of the question of cancellation of a licence under Section 34 of the Act.
(3.) IN the instant case, the respondents have arbitrarily closed the shop of the petitioner, and that too for good. The midnight raid and the unlawful attack was made on July 12, 1980 We are now in December, 1980. But, the respondents have not even alleged much less proved that even after this, any enquiry has been conducted. The act of the respondents only shows flagrant disregard and clear violation of law. I would have expected the respondents to be apologetical in such a case, and expressed earnest desire to withdraw the illegal actions, but, what has surprised and shocked me the most, is the defence of an undefendable action, and that too, in the name of public interest. It is not possible to imagine, how public interest would have suffered if a petty licensee would have been given a notice to show cause, before the alleged midnight raid. It is also not clear that how public interest would have suffered if the respondents would have made a regular enquiry and cancelled the licence after providing him a reasonable opportunity to show cause. The minimum that can be said is, that the public functionaries acting under the rule of law, should not forget that they are answerable to the Courts of law, and for any illegal high-handed action. Even if they want to act in the interest of public and bona fidely, they should not forget that arbitrariness is the very antithesis of rule of law. Therefore every action which one can take, should be done properly according to the procedure provided and well-settled canons of law. The result is, that the writ petition is accepted. The respondents are directed to restore the shop in question, along with the goods which they seized from it, to the petitioner forthwith. The respondents are further restrained from interfering in the business of the petitioner to sale country-liquor on permits for the reasons according to the rules, during the tenure of this licence, 1980-81. This would of course, not debar from taking any proceedings for cancellation of the licence by holding a regular enquiry providing an opportunity to the petitioner to show cause, and lead evidence in defence, if there are any allegations against him. The writ petition is, therefore, accepted with costs. ;