KA RON LANONG Vs. THE STATE OF ASSAM
LAWS(GAU)-1958-8-4
HIGH COURT OF GAUHATI
Decided on August 29,1958

Ka Ron Lanong Appellant
VERSUS
The State Of Assam Respondents


Referred Judgements :-

HOUSE OF LORDS (1) MATTHEY V. CURLING [REFERRED TO]
FIBROSA SPOLKA AKCYJNA V. FAIRBAIRN LAWSON COMBE BARBOUR LTD. [REFERRED TO]
CHANDLER V. WEBSTER CASE [REFERRED TO]
SANKARAN V. DISTRICT BOARD OF MALABAR [REFERRED TO]
DENNY,MOTT AND DICKSON LTD. V. JAMES B. FRASER AND CO. LTD. [REFERRED TO]
KRELL V. HENRY [REFERRED TO]
FRENCH MARINE V. COMPAGNIE NAPOLITAINE D'ECLAIRAGE ET DE CHAUFFAGE PAR LE GAZ [REFERRED TO]
CRICKLEWOOD PROPERTY AND INVESTMENT TRUST LTD. V. LEIGHTON'S INVESTMENT TRUST LTD. REPORTED IN [REFERRED TO]
HURNANDRAI FULCHAND V. PRAGDAS BUDHSEN [REFERRED TO]
CONSTANTINE STEAMSHIP LINE LTD. V. IMPERIAL SMELTING CORPORATION LTD [REFERRED TO]
BRITISH MOVIETONEWS LTD. V. LONDON AND DISTRICT CINEMAS,LTD. [REFERRED TO]
HIRJI MULJI V. CHEONG YUE [REFERRED TO]
PARSHOTAM DAS SHANKAR DAS V. MUNICIPAL COMMITTEE,BATALA [REFERRED TO]


JUDGEMENT

Sarjoo Prosad, C.J. - (1.)THIS appeal relates to a money claim for recovery of a sum of Rs. 22,500/ - on account of refund of licence fees, paid in advance to the defendant. Added to it is a claim for Rs. 1,500/ - as compensation for illegal detention of the money.
(2.)THREE liquor shops for retail sale of country spirit, situate in Laban, Mawkhar and Police Bazaar in the town of Shillong were settled by the defendant, the State of Assam, with the plaintiff -appellant for the year 1948 -49, under different licences. The aggregate licence fee payable for all the three shops in question amounted to a sum of Rs. 2,70,000/ -, while the proportionate monthly fee came to Rs. 22,500/ -. The terms of the licence will be adverted to at a later stage as they naturally have an important bearing on the decision of the case.
But an essential term in the licence was that the plaintiff had to depend for his supply of liquor for sale in the retail shops aforesaid upon certain licensed still owners of Umjajew, about 29 in number; and in order to get the supplies, the plaintiff had to deposit the price thereof at rates specified by the Government in the office of the Deputy Commissioner on the third of every month. The plaintiff was prohibited from selling liquor of any other variety except the kind of liquor locally called kiad thnam, supplied by the said licensed distillers. The plaintiff claimed that the licence fee payable by the plaintiff was determined on the basis of the average supply of liquor by each of the distillers at the rate of 200 to 300 bottles of liquor per month and that the plaintiff's position under the licences was that of a Government Agent for the sale of liquor, the liquor being supplied by the Government through their other agents, the still owners.

These claims as mentioned in paragraphs 2 and 3 of the plaint were categorically admitted, in paragraph 7 of the defendant's written statement. On the grant of the licences, the plaintiff had also to deposit by way of security, a sum of Rs. 22,500/ - equal to the monthly instalment of the fees payable and also deposit a similar amount by way of one month's fees in advance on the first of each month. These deposits were made in pursuance of the terms of the licences, failure to comply with which involved the penalty of forfeiture.

It is stated that during the material period, Shillong was a rationed area in respect of rice, among other commodities, and the said distillers of Umjajew used to receive their supply of rice for purposes of distillation from an authorised permit -holder of the Government. In June, 1948, the Government failed to supply rice to the distillers owing to scarcity of rice in the locality and on that account from 19th June, 1948, to 21st July, 1948, the distilleries ceased to function and did not supply any liquor to the plaintiff for sale in the shops in question.

As a result of this non -supply of liquor, the plaintiff had no alternative but to close his shops in the aforesaid period after giving due notice to the Government. The plaintiff alleges that the State Government was solely responsible for the non -supply of liquor to the plaintiff's shops through the distillers, their agents, which resulted in the closure of his business during the period in question. He accordingly made repeated prayers to the Government for remission of the licence fee to which the plaintiff was entitled, but the prayer was eventually rejected on 22 -11 -1949 and the defendant realised the entire licence fee out of the security amount and the advance deposits. The plaintiff, therefore, instituted the suit for the above reliefs after serving a notice on the defendant under Section 80 of the Code of Civil Procedure. The original plaintiff died after the institution of the suit and his heir under the customary law has been substituted.

The suit was resisted by the defendant mainly on the ground that there was neither any condition in the licence nor any understanding given by the Deputy Commissioner at the time of the settlement of the shops in question that Government ' would supply rice to the still owners at Umjajew. The defendant, therefore, claimed that they were not bound by any failure of the arrangement in the supply of rice to the distillers and the resultant closure of the distilleries during the period in question. According to the defendant, they tried to help the distillers and the vendor, but the overall scarcity of rice made their attempts infructuous. They, therefore, denied liability for the closure of plaintiff's shops. The defendant further asserted that under the letter of the Excise Commissioner dated 11 -12 -1947, which also laid down the conditions of settlement of the excise shops in question, the defendant was not liable for any compensation for the closure of plaintiff's shops during the relevant period due to unforeseen circumstances. The defendant also stated that the plaintiff's shops actually reopened on the 21st of July, 1948, and the defendant was entitled to realise the entire licence fee even for the period in claim without any remission for the advance deposits.

(3.)ON the above pleadings a number of issues were framed by the learned Subordinate Judge, who tried the suit. It is unnecessary to refer to those issues. The main question, which the learned Subordinate Judge had to decide, was whether the plaintiff was entitled to the remission of licence tee during the period 19th June, 1948 to 21st July, 1948, as claimed by him. This question was covered by Issues 6, 8 and 9, all of which material issues he decided against the plaintiff. He held that there was no condition in the plaintiff's licences or in the licences issued to the distillers that the liquor to be supplied to the plaintiff for sale was to be prepared from rice supplied by the Government.
Therefore, there was no legal responsibility cast on the defendant, when owing to unavoidable circumstances there was failure of supply of rice to the distilleries and there was resultant closure of the plaintiff's shops during the period. The learned Subordinate Judge also appears to have thought that the remission claimed was a matter of favour or grace from the Government and not a matter of legal claim and when Government refused to grant the favour, the claim could not be enforced in a Court of Law.

He also held that the plaintiff was bound by the terms and conditions contained in the letter of the Excise Commissioner under which no compensation was payable to the plaintiff for the upkeep of his establishment during the period that the shops were closed. He also opined that there was some kind of waiver or estoppel against the plaintiff, because he allowed the adjustment for the dues o £ July from the money already in deposit pending the final decision of the Government on the claim of remission. The correctness of the judgment under appeal has been challenged on all the above points and it has been contended that the findings are both misconceived and not borne out by the record.



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