2009 JTR(SC) 83
2009 Supp AIR(SC) 282 ; 2009 AIR(SCW) 2784 ; 2009 2 AWC 1628 ; 2009 2 CalLJ(SC) 30 ; 2009 2 CalLT(SC) 73 ; 2009 4 CHN(SC) 7 ; 2009 1 JT 654 ; 2009 Supp1 KLT 1087 ; 2010 8 RCR(Civ) 111 ; 2009 1 Scale 745 ; 2009 2 SCC 703 ; 2009 1 SCC(Cri) 851 ; 2009 1 SCC(L&S) 541 ; 2009 2 SCJ 454 ; 2009 1 SCR 469 ; 2009 2 WBLR 366 ; 2009 1 Supreme 647
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
IMPORTANT POINT
It is a basic principle of justice that no adverse orders should be passed against a party without hearing him.
Act Referred :CONSTITUTION OF INDIA : Art.32
(A) The proceedings were instituted under Article 32 of the Constitution of India, invoking the right to move the Supreme Court for enforcement of fundamental rights. The impugned order cancelling licenses was passed by the High Court after a contempt petition was dismissed, directing cancellation of licenses awarded at specific auctions and cessation of business without providing an opportunity of hearing to the affected licensees. This invokes the principles of natural justice as enshrined in the Constitution, and the Supreme Court exercised its powers under Article 32 to issue a recall order to rectify the violation.
(B) No party can be adversely affected without being heard; violation of natural justice renders an order a nullity; a recall petition lies to correct orders passed without affording an opportunity of hearing; Article 32 cannot be used to set aside a prior judgment as invalid, but can be used to recall orders that are procedurally flawed.
Facts of the case:
All Bengal Excise Licensees Association filed a writ petition in the High Court challenging the State of West Bengals policy of granting additional foreign liquor and country made spirit licenses, which was later withdrawn. An interim stay was passed by the High Court. Licenses were granted in violation of the stay, a contempt petition was dismissed, and a special leave petition resulted in an order canceling specific licenses and stopping business without hearing the licensees. This petition was filed under Article 32 challenging that order.
Findings of Court:
The Supreme Court held that the cancellation of licenses and cessation of business without hearing the affected parties violated natural justice. The earlier judgment is not invalidated but the specific directions are recalled. The parties may challenge the policy or grant of licenses through appropriate proceedings.
Issues:
Whether an order cancelling licenses passed without hearing the affected parties is valid.
Whether the Supreme Court can recall such an order under Article 32.
Ratio Decidendi:
An order that adversely affects parties without giving them an opportunity of hearing is a nullity on grounds of natural justice, and the Supreme Court, in exercise of its powers under Article 32, may recall such a procedurally flawed order.
(A) The proceedings were instituted under Article 32 of the Constitution of India, invoking the right to move the Supreme Court for enforcement of fundamental rights. The impugned order cancelling licenses was passed by the High Court after a contempt petition was dismissed, directing cancellation of licenses awarded at specific auctions and cessation of business without providing an opportunity of hearing to the affected licensees. This invokes the principles of natural justice as enshrined in the Constitution, and the Supreme Court exercised its powers under Article 32 to issue a recall order to rectify the violation.
(B) No party can be adversely affected without being heard; violation of natural justice renders an order a nullity; a recall petition lies to correct orders passed without affording an opportunity of hearing; Article 32 cannot be used to set aside a prior judgment as invalid, but can be used to recall orders that are procedurally flawed.
Facts of the case:
All Bengal Excise Licensees Association filed a writ petition in the High Court challenging the State of West Bengals policy of granting additional foreign liquor and country made spirit licenses, which was later withdrawn. An interim stay was passed by the High Court. Licenses were granted in violation of the stay, a contempt petition was dismissed, and a special leave petition resulted in an order canceling specific licenses and stopping business without hearing the licensees. This petition was filed under Article 32 challenging that order.
Findings of Court:
The Supreme Court held that the cancellation of licenses and cessation of business without hearing the affected parties violated natural justice. The earlier judgment is not invalidated but the specific directions are recalled. The parties may challenge the policy or grant of licenses through appropriate proceedings.
Issues:
Whether an order cancelling licenses passed without hearing the affected parties is valid.
Whether the Supreme Court can recall such an order under Article 32.
Ratio Decidendi:
An order that adversely affects parties without giving them an opportunity of hearing is a nullity on grounds of natural justice, and the Supreme Court, in exercise of its powers under Article 32, may recall such a procedurally flawed order.
Nagendra Rai, Jayant Bhushan, C.A. Sundaram, Shanti Bhushan, Chetan Sharma, Krishnan Venugopal, Sr. Advs., Anand, D. Bharat Kumar, Ms. M. Indrani, Abhijit Sengupta, Abhijeet Chatterjee, Subodh Kr. Pathak, Manish, Arman Sharma, Ms. Shimpy Garg (for D.K. Sinha), Ms. N. Annapoorani, Dharmendra Kumar Sinha, Vishal Arun, Azim H. Laskar, Sachin Das, Krishnandu Sarkar, Aman V., Ashutosh Dubey, Dheeraj, R.D. Puri, MS. Rajshri Dubey, P.N. Puri, Saurabh Mishra, A.N. Mukherjee, Dip Narayan Mishra, Chanchal K. Ganguli, Ms. Rohini Musa, Abhishek Gupta, Zafar Inayat, Anandh Kannan and Anurag Pandey, Advocates for appearing parties.
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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