India Tourism Development ... vs Delhi Administration & Others
2013 Latest Caselaw 5806 Del

*    IN THE HIGH COURT OF DELHI AT NEW                       DELHI

%            Judgment reserved on:   25th September, 2013
             Judgment pronounced on: 17th December, 2013

+                 W.P.(C) 2249/1992

INDIA TOURISM DEVELOPMENT CORPORATION LTD....PETITIONER
               Through: Mr.   Siddharth    Garg   with
                        Mr.Sugam Seth and Ms.Nidhi
                        Mehrotra, Advocates.

                         Versus

DELHI ADMINISTRATION & OTHERS                    ..... RESPONDENTS
               Through: None.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA, J.

1. Petitioner by the present petition has sought quashing

of the order dated 08.05.1992 passed by the

Commissioner of Excise and the memorandum dated

09.06.1992 issued by the Collector of Excise raising a

demand on the petitioner for a sum of Rs.9,68,750/ -

pursuant to the order dated 08.05.1992.

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2. The petitioner, India Tourism Development

Corporation, a Government of India Undertaking

incorporated under the Indian Companies Act, 1956,

had applied for and obtained L-3 and L-5 licence for

sale of liquor in the Bar located on the ground floor of

the Hotel Janpath. The licence was granted for

running and serving liquor in "ORBIT BAR". The

excise licence was for the period 1.4.1983 to

31.3.1984. The exact words used in the licence read:

     S.No.       Name of the Bar           Name       of       attached
                                           Restaurants/ Dining Hall.

        1.       'OPEN HOUSE'              Open House Restaurant

        2.       'ORBIT BAR'               Attached Dining Hall of Orbit,
                                           Mandarian and Gulnar Restt.

3. The case of the petitioner is that the said Orbit Bar

was located on the ground floor in the centre of Hotel

Janpath and on three sides around the Bar, there was

space for restaurants and on the fourth side there was

a passage. The entire area where the bar and the

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restaurants were situated were interconnected and

there was no door fixed to separate them from each

other. The petitioner at the time of application for

grant of liquor licence had submitted a plan wherein

the areas including the bar area were distinctly shown.

On the basis of the said application, the licence in the

category of L-5 was granted and the licence

specifically mentioned "Orbit Bar" attached to dining

hall of "Orbit, Mandarin and Gulnar Restaurants".

4. The case of the petitioner is that the petitioner and

their staff have always run the liquor bar in question in

accordance with the licence. The bar was inspected

on several occasions by the officers of the

respondents and entries with respect to the inspection

were duly recorded in the register maintained by the

hotel. At no stage, any contravention, irregularity or

violation was found or recorded. Learned counsel for

the Petitioner drew our attention to the Inspection

reports covering the period between 22.03.1980 to

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31.12.1984 annexed to the petition as Annexure „C‟

from pages 24 to 65. This is the accepted and

admitted position. The respondents have not

contested the said assertion.

5. The petitioner was issued a show cause notice to

show cause as to why two of the three restaurants

attached with Orbit Bar be not deleted from their

licence or as to why licence fee of Rs.1 lac in respect

of the two additional restaurants be not charged from

them.

6. By order dated 01.04.1985, the Collector of Excise

adjudicated on the show cause notice and directed:-

"The written contentions put before me are not tenable in view of the fact that the three restaurants viz., 'Hall of Orbit', 'Mandarin' and 'Gulnar' restaurants are being run independently as separate units and that billing of each restaurants is also done separately.

However, since the management has now

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decided to start a new restaurant in place of the earlier two restaurant, namely, 'Hall of Orbit' and 'Gulnar' after renovations are carried out and intends to keep only one restaurant by name 'Mandarian' attached with their "Orbit Bar", in the meantime, it is ordered that the two restaurants, namely, 'Hall of Orbit' and' 'Gulnar' be deleted from the L-5 licence forthwith. Excise Inspector (Hotel) be required to ensure that no liquor is served in the restaurants which are now ordered to be deleted in future and that as and when the proposed restaurants are started after the renovation are carried out as stated by the representative of the licencee, this fact may be brought on record."

7. Perusal of the order shows that the Collector noticed

that three restaurants were attached to the „Orbit Bar‟

at the time of grant of the licence, as there was

separate billing and they were being run as

independent units. The order records that the earlier

attachment was inadvertently allowed. The Collector

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of Excise vide said order directed that the two

restaurants, namely, Orbit and Gulnar be deleted from

the L-5 licence forthwith and the Excise Inspector

(Hotel) was required to ensure that no liquor was

served in these restaurants. Entries in the licence to

the contrary were directed to be deleted. The order

does not hold or observe that the "inadvertent error" of

mentioning the two additional restaurants occurred on

account of some fault of the petitioner. The petitioner

was not ordered to pay any additional fee, as was

proposed in the show cause notice for restaurants. To

this extent the show cause notice was dropped.

8. The petitioner alleges that the order dated 01.04.1985

was duly complied with and names of the two

restaurants were deleted from the L-5 licence and the

sale of liquor in the said two restaurants was ceased

forthwith. No complaint of any nature was received

alleging violation of the said order. The order was

duly complied.

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9. On 05.01.1989 i.e. four years after passing of the

order dated 01.04.1985, another show cause notice

was issued to the petitioner to show cause as to why a

sum of Rs.3.5 lacs plus interest be not recovered from

the petitioner as licence fee for the two restaurants

included in the licence issued.

10. By order dated 18.10.1989, the Collector of Excise

noticing that the petitioner had been inadvertently

allowed service of liquor to three restaurants held that

the licencee was required to deposit licence fee for

two other restaurants, namely, Hall of Orbit and Gulnar

for the period 1980-81 to 1984-85.

11. Impugning the order dated 18.10.1989, the petitioner

filed an appeal before the Excise Commissioner. Vide

order dated 08.05.1992, the appeal of the petitioner

was rejected by the Excise Commissioner holding that

there were two alternatives for the Excise department,

i.e., either to charge licence fee for the period the

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petitioners were running three restaurants under one

Bar licence or to levy penalty. The Excise

Commissioner vide the said order directed the

petitioner to pay licence fee along with interest.

12. Pursuant to order dated 08.05.1992, Collector of

Excise issued the memorandum dated 09.06.1992

raising a demand of Rs.9,68,750/- on the petitioner.

The order dated 08.05.1992 and the memorandum

dated 09.06.1992 are impugned in the present petition.

13. We are of the view that the order dated 08.05.1992

and the consequent memorandum dated 09.06.1992

are not sustainable. The order dated 01.04.1985 was

passed pursuant to the first show cause notice that

had proposed two actions. Firstly, deletion of two out

of three restaurants and secondly recovery of

additional licence fee for the period the three

restaurants were run by the petitioner as attached to

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the ORBIT Bar in terms of the licence granted by the

respondents.

14. The said order passed by the Collector of Excise only

deleted names of the two restaurants that had been

inadvertently allowed and treated as attached with the

„Orbit Bar‟. No penalty or direction for payment of any

licence fee for the said two restaurants was passed.

The order dated 01.04.1985 became final and was

accepted by both parties.

15. Thus the adjudicating authority upon examination and

due consideration, did not think and consider

appropriate to levy penalty, or direct deposit of any

additional licence fee. To this extent proceedings were

dropped, in favour of the petitioner. Apparently the

authority felt that the error or mistake was of the

department and no fault could be attributed to the

petitioner. The order dated 01.04.1985 was complied

with and had become final. The order did not find

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wrong doing on the part of the petitioner but holds that

the restaurants were added inadvertently.

16. The second aspect of the matter is that the petitioner

for the said period was in fact given a licence by the

respondents and the licence had mentioned three

restaurants attached with the Bar. The licence fee

stipulated in the said licence had been duly paid by

the petitioner. Terms of the licence were not violated

and were duly complied. The petitioner cannot be

faulted with for an inadvertent error or mistake on the

part of the respondents by mentioning names of three

restaurants attached to one bar. In case, an error had

occurred on part of the respondents, the correct

course was to rectify the error which, in fact, was done

by the order dated 01.04.1985 when names of two

restaurants out of the three were deleted from the said

licence.

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17. The petitioner cannot be saddled with the liability of

paying the licence fee for two restaurants for the

period when the petitioner had a licence mentioning

the three restaurants attached to the bar. The

respondents have not relied upon or referred to any

statutory provision or rule, in support of their claim.

Apparently, the issue in question was a matter of

policy and there was ambiguity and ambivalence

whether or not separate licence was required. The

billing for liquor was issued from the bar. In case, the

petitioner had been informed and asked to pay

additional licence fee for each restaurant, the

petitioner might not have taken the licence for the

three restaurants. The petitioner during the period

when the licence was in subsistence had duly

complied with the terms and conditions of the licence

and post 01.04.1985 has also complied with the order

dated 01.04.1985. The petitioner, therefore, cannot be

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saddled with a new or additional liability for complying

with the licence which was in force and not violated.

18. As per the respondents there was an inadvertent error

at the time of grant of licence, which error was rectified

vide order dated 01.04.1985. The order dated

01.04.1985 had become final in respect of both

aspects, i.e., deletion of two restaurants from the

licence which had been inadvertently endorsed and

non-imposition of the licence fee in respect of the two

additional restaurants for the period prior to the

deletion vide order dated 01.04.1985. Once the order

of 01.04.1985 qua the two aspects had become final,

the respondents had no power to issue the fresh show

cause notice dated 05.01.1989 and that also after four

years pass the impugned order dated 18.10.1989. As

the order dated 18.10.1989 cannot be sustained, the

demand raised as a consequence of the order dated

18.10.1989 can also not be sustained.

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19. It is settled proposition of law that the quasi judicial

authority cannot review its earlier decision unless th e

power of review is conferred by the statute.

20. The Supreme Court of India in K ALABHARATI

ADVERTISING V. HEMANT VIMALNATH NARICHANIA , (2010)

9 SCC 437, AT PAGE 445 has held as under:

Legal Issues

Review in absence of statutory provisions

12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v.

Narayanrao Khanderao Jambekar AIR 1965 SC 1457 and Harbhajan Singh v. Karam Singh AIR 1966 SC 641.)

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13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji (1971) 3 SCC 844, Major Chandra Bhan Singh v. Latafat Ullah Khan (1979) 1 SCC 321, Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya (1987) 4 SCC 525, State of Orissa v. Commr. of Land Records and Settlement (1998) 7 SCC 162 and Sunita Jain v. Pawan Kumar Jain (2008) 2 SCC 705 this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.

14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of

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clarification/modification/correction is not permissible.

21. The order passed by the Collector of Central Excise

on the first show cause is not a mere administrative

order but is a quasi judicial order. It determined the

question of liability, fine etc.

22. The Supreme Court of India considering the distinction

between the administrative function performed by an

authority and a quasi judicial function in the case of

INDIAN NATIONAL CONGRESS (I) V. INSTITUTE OF SOCIAL

WELFARE , (2002) 5 SCC 685, AT PAGE 699 held as

under:

"20. On the argument of parties, the question that arises for our consideration is, whether the Election Commission, in exercise of its powers under Section 29-A of the Act, acts administratively or quasi-judicially. We shall first advert to the argument raised by learned counsel for the respondent to the effect that in

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the absence of any lis or contest between the two contending parties before the Election Commission under Section 29-A of the Act, the function discharged by it is administrative in nature and not a quasi-judicial one. The dictionary meaning of the word quasi is "not exactly" and it is just in between a judicial and administrative function. It is true, in many cases, the statutory authorities were held to be quasi-judicial authorities and decisions rendered by them were regarded as quasi-

judicial, where there was contest between the two contending parties and the statutory authority was required to adjudicate upon the rights of the parties. In Cooper v. Wilson [(1937) 2 KB 309] it is stated that "the definition of a quasi-judicial decision clearly suggests that there must be two or more contending parties and an outside authority to decide those disputes". In view of the aforesaid statement of law, where there are two or more parties contesting each other's claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory

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authority was held to be quasi-judicial and decision rendered by it as a quasi-judicial order. Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi- judicial authority, such a statutory authority is quasi-judicial authority.

21. But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-judicial decision when such a statutory authority is required to act judicially. In R. v. Dublin Corpn. [(1878) 2 Ir R 371] it was held thus:

"In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent

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authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts."

22. Atkin, L.J. as he then was, in R. v. Electricity Commrs. [(1924) 1 KB 171] stated that when any body of persons has legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision. In the said decision, there was no contest or lis between the two contending parties before the Commissioner. The Commissioner, after making an enquiry and hearing the objections was required to pass order. In a nutshell, what was held in the aforesaid decision was, where a statutory authority is empowered to take a decision

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which affects the rights of persons and such an authority is under the relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and decision rendered by it is a quasi-judicial act.

23. In Province of Bombay v. Khushaldas S. Advani AIR 1950 SC 222 it was held thus: (AIR p.

             260, para 173)

                   "(i)   that   if   a   statute   empowers     an
                   authority, not being a court in the

ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect

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the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially."

24. The legal principles laying down when an act of a statutory authority would be a quasi- judicial act, which emerge from the aforestated decisions are these:

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Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi- judicial."

23. The Collector of Central Excise while adjudicating

upon the first show cause notice was clearly

performing quasi judicial function. There is no power of

review conferred upon the Collector of Central Excise

to review the order dated 01.04.1985 of the nature

passed on the first show cause notice. The collector

thus could not have issued a second show cause

notice and that also after a gap of about 5 years. The

first show cause notice required the Petitioner to show

cause as to why additional license fee be not charged

but the same was not charged and this amounted to

dropping of the show cause notice to that extent. The

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Order dated 01.04.1985 also records that the three

restaurants were inadvertently attached to the bar.

24. In view of the above, we are of the considered opinion

that the order dated 08.05.1992 and the consequent

demand raised by the respondents vide memorandum

dated 09.06.1992 are not sustainable and are hereby

set aside. In case, the petitioner has paid or deposited

any amount pursuant to the interim order of this Court

dated 19.06.1992 for stay of the memorandum dated

09.06.1992, the petitioner shall be entitled to refun d of

the same with interest @ 12% per annum.

25. The petition is, accordingly, allowed with no orders as

to costs.

SANJEEV SACHDEVA, J.

DECEMBER 17, 2013                           SANJIV KHANNA, J.
SV

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