Decided on April 23,1958

Dinesh Chandra Dowerah Appellant
A.M. Dam Respondents

Cited Judgements :-



C.MEHROTRA,J. - (1.)THIS rule was issued on an application under Articles 226 and 227 of the Constitution praying for issue of a writ of Certiorari or Mandamus or any other appropriate writ against the opposite parties Nos. 1 and 2 - -the Commissioner of Hills Division and Appeals, Assam and the Commissioner of Excise, Assam, Shillong respectively - -restraining them from giving effect to their impugned orders and directing opposite party No. 3 - -the Deputy Commissioner and District Collector, Lakhimpur - -to give effect to his order dated 29 -10 -1957 and further restraining opposite parties No. 4 from selling country spirit from Behia Chetia Country Spirit Shop on and from 1 -4 -1958.
The facts which are set forth in the application are that the sales of the country liquor in non -prohibited areas in Assam including Lakhimpur District are regulated by licenses to be granted by District Collectors on advice of the Advisory body consisting of not more than five local gentlemen. The District Collector and the Deputy Commissioner on the unanimous advice of the Advisory Committee of local people of the standing settled the Behia Chetia Country Spirit Shop for the year 1957 -58 with the petitioners Shri Dinesh Chandra Dowerah and Shri Mohit Chandra Barua. Thereafter when the occasion for the settlement of the said shop for the year 1958 -59 arose, the petitioners and several other persons submitted their tenders for the said settlement. On the advice of the Advisory Committee the Deputy Commissioner granted the settlement of the shop with the petitioners. Then, other persons filed an appeal against the order of settlement granted to the petitioners before the Commissioner of Excise, Assam and the Commissioner by his order set aside the settlement in favour of the petitioners and also came to the conclusion that the opposite parties No. 4 - -Sri Gobardhan Datta and Sri Gopal Chandra Lohar were inexperienced and consequently no settlement could be made with them. He directed fresh proceedings for the settlement of the shop. Two appeals were filed to the Appellate Authority against this decision of the Excise Commissioner - -one by the petitioners and the other by the opposite parties No. 4. Both these appeals were heard by him together and by one consolidated order dated 31 -3 -1958 the Appellate Authority rejected the appeal of the applicants and allowed the appeal fifed by opposite parties No. 4 with the result that the petitioners' tender was rejected and the shop was directed to be settled with the opposite parties No. 4. It is against this order that the present petition under Article 226 of the Constitution has been filed.

(2.)THE main ground on which the petitioners' tender was rejected by the Excise Commissioner was that in the year 1937 Mohit Chandra Barua who is one of the tenderers was holding a Ganja shop in the year 1937 and was detected in giving short weight; his license was cancelled and a further punishment was awarded to him by forfeiture of half of the security money and he was further debarred from getting settlement of excise shops for two years. That was the ground on which the Excise Commissioner held that no settlement could be made with the applicants. On appeal the Appellate Authority on this question has come to the following finding:
'I hold that after so many years and without any other incident since then to question the character of the appellant, that punishment has completely lost all force to discredit him.'

In effect therefore the Appellate Authority held that the cancellation of the license and the forfeiture of the security in the year 1937 of one of the partners were no disqualification for the petitioners being selected for settlement of the shop.

(3.)IN fact in the previous year 1957 -58 the shop had been settled with the present applicants and no complaint was found against them. The appellate authority however found that in the column 10 of the Tender Form the petitioners had failed to mention this fact that in the year 1937 the license of Shri Mohit Chandra Barua had been cancelled and according to the Appellate Authority failure to mention this in the tender form was non -compliance with a mandatory requirement and thus their tender was liable to be rejected and could not be considered. On that finding he rejected the tender of the applicants. As regards the tender given by the opposite parties No. 4 the Appellate Authority came to the conclusion that there was no doubt that they were inexperienced in the trade but in the absence of any rival candidate in the field that was no ground to reject their tender and on that consideration he directed that the settlement be made with opposite parties No. 4.

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