of Punjab & Ors Vs. M/S. Surinder Kumar
& Co. & Ors  INSC 1595 (11 December 1996)
O R D
have heard learned counsel on both sides.
appeals by special leave arise from the judgment and order of the Division
Bench of the Punjab and Haryana High Court, dated May 29, 1996 in CWP Nos. 18522-18524/95.
respondents had the leasehold right to vend the Indian made liquor at Ludhiana. They had located shops at 44
places to sell under L-2 and L-14 licence of Indian made foreign liquor in
retail. They had the licence for the financial year April 1, 1995 to March
31, 1996. The Excise
Department officials had noted, on inspection, certain illegalities or
irregularities committed in conducting the business and selling in retail the
Indian made foreign liquor. On account thereof, by proceedings dated August 21, 1995, the competent officer cancelled
the licence granted to the respondents.
aggrieved by the cancellation order, the respondents filed CWP Nos.12543, 12546
and 12547/1995. Therein, the respondents impleaded Shamsher Singh Dullo,
Minister for Excise and Taxation, as one of the respondents alleging mala fides
in the cancellation of licence granted to the respondents. The Division Bench
of the High Court by order dated September 15, 1995 allowed the Writ Petition
and remitted the matter to the Appellate Authority to decide the appeal within
15 days from the date of the presentation f the appeal since the respondents had
alternative remedy of an appeal provided under the Punjab Excise Act, 1914 (for
short the `Act'). The order reads as under:
the respondent Minister against whom allegations of male fide are alleged is no
more a Minister. The petitioner has got an alternative remedy of appeal against
the impugned order, The petitioner is relegated to the alternative remedy. The
respondents undertake not to raise any objection with respect to the limitation
for filing appeal if the same is filed within one week. The petitioner may
apply for stay of the petitioner may apply for stay of the operation of
impugned order before the appellate authority and the same shall be considered
by the appellate authority. The appellate authority is further directed to
decide the appeal within 15 days from the date of presentation of the appeal.
In view of this, the writ petition is disposed of." On filing the appeal,
the Appellate Authority, while upholding that the respondents had committed
illegalities and irregularities in conducting the business in violation of the
provisions of the Act and the rules made thereunder, felt it expedient instead
of cancelling the licence, to treat the period from cancellation of licence
till the filing of the writ petitions and grant of stay by the High Court, to
be period of substantive suspension as a measure of penalty. Feeling aggrieved
by the order passed by the Appellate Authority, the present writ petitions came
to be filed. The Division Bench of the High Court in the impugned order set aside
the order and remitted the case to the Excise and Taxation Commissioner to
decide the matter on the grounds of mala fides alleged against the Minister
afresh in the light of the averments made and the contentions on either side.
Thus, these appeals by special leave.
seen that in the batch of the Writ Petitions, admittedly, the Minister was made
co-respondent and allegations of mala fides came to be made against him. The
High Court did not decide that questions. On the other hand, a reading of the order
would indicate that the High Court instead directed the respondents to avail
the alternative remedy of appeal before the Appellate Authority and Appellate
Authority was directed to go into the merits of the matter and decide it
according to law. It is seen that Appellate Authority did go in the merits,
found that the respondents committed ilegalities and irregularities in
conducting the business of vending the Indian made foreign liquor. However, in
the matter of imposition of penalty the Appellate Authority had felt it
expedient, instead of cancelling the licence, to confine the period from August
22, 1995 till September 22, 1995, the date on which the High Court granted
interim suspension of the operation of the cancellation order as
"suspended". It could be seen that in the second batch of Writ
Petitions the Minister was not made a party. It is the settled legal position
that the High Court could not have been gone in the mala fides and it could not
decide the matter on merit on the question of mala fides. In such a situation
can the Division Bench direct the Appellate Authority to go into the question
of mala fides.
seen that in the first round of litigation when the High Court had not gone
into the question of mala fides, though the Minister was impleaded as a party,
it had remitted the matter for disposal on merits. Obviously, the words
"might and ought" used in Section 11 of the C.P.C. stand in the way
and, therefore, it operates as res judicata for raising the same question in
the present writ petitions.
High Court could not have gone into that question, much less giving direction
to the Appellate Authority, namely, the Excise and Taxation Commissioner, to go
into that question.
Das, learned counsel for the respondents, contends that the respondents had not
committed any serious irregularities or illegalities warranting even suspension
of the licence for the period mentioned by the Appellate Authority.
Unfortunately, that question was not considered by the Division Bench and it
had not given any finding thereon. No appeals are filed by the respondents.
Under those circumstances, we cannot go into that question. Thus, we hold that
the view taken by the Division Bench is clearly unsustainable.
appeals are accordingly allowed and the Writ Petitions stand dismissed. No