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Judgment
Ramachandra Iyer, the Chief Justice
This is an appeal against the judgment of Rajagopalan, J., rejecting the application filed by the appellant for the issue of a writ of mandamus on
the ground that to do so would, in effect, be to compel the respondent, the Joint Chief Controller of imports and Exports, Madras, to disobey the
directions of his superior authority at New Delhi. The facts leading up to the case are these: The appellant was having a business in pulse. He was
in the habit of importing the commodity from foreign countries. Prior to September 1946, there was no ban on the import of pulse from foreign
countries, such imports being allowed under the system known as open general licence system. From that time, how ever, certain restrictions were
imposed, and the import of pulse from foreign countries was permitted only under licences granted on the basis of quota certificates to be issued by
the appropriate authority. The quota for each importer was fixed with reference to certain rules made In that behalf and, generally, on the basis of
his previous years imports. For imports in the State of Madras, the quota certificate as well as the licence had to be obtained from the office of the
Joint Chief Controller of Imports and Exports, Madras. The appellant, claiming to be an established importer, applied to that authority for a quota
certificate and licence. In the application for the latter, he specifically referred to the application for quota certificate and requested the authority to
obtain the same from the branch of the Department dealing with it. This request was ignored by the office of the respondent, who forwarded the
quota certificate to the appellant direct. The application for licence, therefore, remained unsupported by the necessary quota certificate till the
appellant was able to send it to the authority concerned after receipt of the quota certificate. By that time, the Government had revised their policy
in the matter of the grant of licence. On 15th December 1957, the Assistant Chief Controller at Madras informed the appellant that ""as per the
existing instructions,"" no licence could be granted. The appellant took up the matter with the Joint Chief Controller, Madras, but with no avail, as it
was stated that, having regard to the non-availability of sufficient foreign exchange, the licence could not be granted. This order is dated 1st July
1957. We will have to refer to this order again at a later stage. The appellant then challenged that order and pressed his claim before the Chief
Controller, New Delhi-a proceeding, which has been indifferently termed as a revision and appeal. By that time, the Government had been
evidently reconsidering their policy with reference to cases similar to that of the appellant. If under any revised policy the merchants similarly
situated were to obtain licence, the appellant too should get it and it would then really be unnecessary to decide the appeal before the Chief
Controller, New Delhi. This, evidently, was behind in the mind of the Chief Controller, New Delhi, when he sent to the appellant the following
communication, which is dated 16th September 1957:
...I write to say that you should contact the Joint Chief Controller of Imports, Madras, direct, as your case is still under consideration in his office
along with other cases of same type. In case you do not feel satisfied with his decision thereon, you may approach this office again; for which no
separate treasury receipt of Rs. 5 would be necessary.
It will be a matter for consideration whether this letter has the effect of finally disposing of the appeal against the order of the Joint Chief
Controller, dated 1st July, 1957, or it merely left that appeal to be decided later, in case it became necessary 10 do so in the event of the appellant
not being able to obtain what he wanted, as a result of the expected revision of policy in the matter of imports. The appellant took the advice of the
Delhi authorities, and applied to the Joint Chief Controller. Madras, for a licence, but he did net succeed there. That officer communicated his
decision to him by his letter dated 28th November, 1957, which runs thus :
With reference to the above, I am directed to state that the decision to reject your application cited above has been taken in consultation with the
Chief Controller of Imports, New Delhi, and that you may. if so desire, prefer an appeal to him within 30 days of the date of this letter in terms of
paragraph 76 of the Red Book of October, 1957 March, 1958 period.
Against the above order, the appellant filed an appeal to the Chief Controller, New Delhi. On 24th April, 1958, the Chief Controller sent the
following communication to the appellant:
With reference to the correspondence resting with your letter dated 29th March, 1958, on the above subject, I write to say that your case has
been carefully examined in this office, but it is regretted that the decision already communicated to you by the Joint Chief Controller of Imports,
Madras, in his latter......dated 1st July, 1957 cannot be revised.
Aggrieved by the final outcome of his efforts to secure a licence, the appellant filed an application to this Court for the issue of a writ of
mandamus to compel the respondent to issue a licence for enabling him to import pulses for the half year in question. Rajagopalan, J. rejected the
application, and hence this appeal.
If the appellant had applied for a writ of certiorari to quash the order of the Joint Chief Controller, Madras, this Court would, ordinarily
speaking, have no jurisdiction over the matter, as such order should be deemed to have been merged in the final order of the Chief Controller,
New Delhi, over whom this Court will have no jurisdiction. This principle is too well settled to merit any further discussion. In Commissioner of
income tax, Bombay v. Amritlal Bhogilal and Co. 1958 S.C.J. 1001 Gajendragadkar, J. observed:
There can be no doubt that, if an appeal is provided against an order passed by the Tribunal, the decision of the appellate authority is the operative
decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is
effective and can be enforced. In law, the position could be just the same even if the appellate decision merely confirms the decision of the
Tribunal.
Perhaps realising that an application for a writ of certiorari in this Court might not succeed, the appellant has applied for the issue of a writ of
mandamus, ignoring the existence of all the orders so far made. But, in our opinion, the rule which we have stated above will not be different even
in regard to the applications for the issue of a writ of mandamus. For one thing, this Court cannot, by issuing a writ, direct the Joint Chief
Controller, Madras, to ignore the order of a superior authority dated 24th April, 1958, unless that authority is properly brought before us. Apart
from this, the issue of such a writ will place the Joint Chief Controller, Madras, in an embarrassing situation as the effect of it will be to compel him
to disobey the order of the superior officer. A discretionary writ like a writ of mandamus cannot be issued if it were to bring about that result.
Mr. M. K. Nambiar, however, tried to get over this difficulty by contending that the order dated 24th April, 1958 of the Chief Controller, New
Delhi, merely affirmed that of the Joint Chief Controller, Madras, dated 28th November, 1957, and that, as the order dated 28th November,
1957, is void and of no legal effect as it did not reflect the judgment of the Joint Chief Controller, Madras, but of somebody else, an affirmation of
the same by the appellate authority would not bring into play the principle of merger and that this Court would have jurisdiction to ignore both of
them and issue a writ of mandamus as if neither existed. The latter part of the submission, viz., that the order of the Joint Chief Controller, Madras,
which expressly stated that it was made in consultation with some other authority, is non est in law, appears to be well founded. There can be little
doubt that the decision of a judicial or quasi judicial authority given under the direction of, or after consultation with, some other person even if that
person be a superior authority will be Invalid as being in violation of the rules of natural justice. This was so laid down in Speak-men v. Plumslead
Board of Works 10 A. C. 229 at 240 In the course of his speech, Earl of Selbourn, L. C. observed:
No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the.
substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word, but he must give the parties an
opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must
act honestly and impartially and not under the direction of some other person or persons to whom the authority is not given by law. (Italics not in
the original).
In his Book on Administration Law, M. W. R. Wade, while examining the meaning of the term ""natural justice"" says that it is the name given to
certain fundamental rules which are so necessary to the proper exercise of power that they are projected from the judicial to the administrative
sphere and that, in its narrower aspect, the rules of natural justice are merely a sub-department of the principle of ultra vires. But at the same time it
must be noted that the principle, viz, the principle of natural justice, covers a wider field as well, namely, certain varieties of cross wrong
procedure. It cannot, therefore, be said that in every case there is a violation of the rules of natural justice, which will no doubt, expose the
impugned order to be quashed by a superior Court, the order should be regarded as non est in law. But it is unnecessary for us to consider these
cases , for, here is a plain case where the officer entrusted with the duty of deciding about the issue of licence did not do so himself but merely
carried out the directions of his superior. Such an order would obviously be void. In Mahadayal Premchandra Vs. Commercial Tax Officer,
Calcutta and Another, the Supreme Court held that, where a person entrusted with the performance of a quasi-judicial act did not exercise his own
judgment, but followed the instructions conveyed to him by another without giving the party affected any opportunity to meet the points urged
against him, the whole procedure was contrary to the principles of natural justice, and, therefore, could be success fully impugned in appropriate
proceedings. The principle so recognised will apply with greater force to a case where the statutory authority practically close his mind and acts at
the dictation of another authority, however superior that authority might be. That would be a void order and to such a case, the rule laid down in
Collector of Customs v. Rahimun (1957) 2 M.L.J. 41=70 L.W 328, will apply. It was held in that case that an order passed in violation of the
rules of natural justice would be a nullity and the doctrine of merger of that order in an appellate order that affirmed it would not apply, for the
simple reason that, as the first order was non est in law, the second could not make it any the more valid.
If the order of the Chief Controller dated 24th April 1958 is to be regarded as passed on the appeal against the order dated 28th November
1957 there can be no doubt that what we have stated above will apply.
That takes us to the first aspect of the contention urged by Mr. Nambiar. The question there is whether the order of the Chief Controller dated
24th April 1958 affirms the invalid order dated 28th November 1957 or some other order. That expressly refers to and affirms the order of the
Joint Chief Collector, Madras, dated 1st July, 1957. Indeed, there is no reference in that order to the order dated 28th November, 1957. It is not
the case of the appellant that the order dated 1st July 1957 is a void order like the one dated 28th November 1957. The only challenge made
against the order of the Joint Chief Collector, Madras, dated 1st July 1957 is that it is incorrect and unjust.
Mr. Nambiar argues that when the order of the Chief Controller, New Delhi, dated 24th April 1958 referred to the order dated 1st July 1957,
there was a mistake it must be taken that what was meant was the order dated 28th Nov. 1957. The reason given in support of the argument is
that, the order dated 1st July 1957 was set aside by the appellate authority on 16th September 1957. The question is, has it been so done? In
terms, that order does not say that the order of the Joint Chief Controller, Madras, dated 1st July 1957 is either affirmed or set aside. As we
indicated earlier, it only suggests to the appellant to go back to the Joint Chief Controller, Madras, as there is an opportunity for him to obtain a
licence in case there is a revision of policy by the Government with regard to merchants similarly situated. More significant than this is the reference
in that order, enabling the appellant to approach the Chief Controller again in case he did not get the relief with the Joint Chief Controller, Madras,
without even paying the usual fees for an appeal to be filed. From these circumstances, it is clear that the order dated 16th September 1957 did
not finally dispose of the appeal from the order of the Joint Chief Controller, Madras, dated 1st July 1957. It is no doubt true that, in the order
dated 28th November 1957 there is a mention of the right of the appellant to approach the Chief Controller by way of appeal. But that is the usual
form. The fact that he subsequently filed an appeal will net militate against the order dated 1st July 1957 being still with the Chief Controller for
being disposed of. When, there fore, that authority by his order dated 24th April 1958, disposed of the appeal, it only amounted to an affirmation
of the order dated 1st July 1957. That order declining to grant licence by the authority at Madras was not vitiated like the one dated 28th
November 1957 and thus non est in law and on being affirmed by the Chief Controller, New Delhi, on 28th November 1957, became merged
with the latter order. We agree with Rajagopalan J. that under the circumstances no writ of mandamus could issue. The appeal fails and is
dismissed with costs.