AMAR NATH DOGRA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal, by special leave, is diseased against the judgment of the Judicial Commissioner, Himachal Pradesh, affirming a decree of the Senior Sub-Judge. Mandi, dismissing the appellant's suit.

(2.) The facts giving rise to this appeal are briefly as follows:There was a public auction on February 25, 1952 at Mandi in Himachal Pradesh for the grant of a monopoly vend-licence to sell by retail countryliquor for the year April 1, 1952 to March 31, 1953. The appellant was the highest bidder for Rs. 1,28,600/- and his bid was accepted. In accordance with the terms and conditions of the auction, 16th of the amount of the bid had to be deposited by him within a month. This sum amounting to Rs. 21,460/- was so deposited. The appellant who had started working his licence made payments of the monthly instalments of Rs. 10,714/- each for the months of April and May. Subsequently thereto there were disputes raised by the appellant that the Excise authorities had defaulted in performing certain of the obligations undertaken by them, in the matter of the supply of liquor etc. and there was correspondence relating to it. There appear to have been attempts by the authorities to remedy the situation but apparently the appellant was not satisfied with the steps taken, with the result that he stopped his sales of liquor and there after served a notice under S. 80 of the Civil Procedure Code dated September 2, 1952 on government making a claim for damages for alleged breach of certain of the stipulations. After receipt of this notice the Collector of Excise directed the suspension of the appellant's licence under S. 36 of the Punjab Excise Act 1914 and thereafter proceeded under S. 39 of that Act to take over the management of the vend-shops which theretofore were under the management of the appellant. As the appellant did not pay the monthly instalments due from and after June, 195, the Collector also took steps for the recovery of these instalments. The appellant then filed a suit No. 345 of 1952 or the file of the Sub-Judge of Mandi on November 26, 1952 (along with certain others in whose names one other liquor licence had been taken and who were evidently similarly situated) for a permanent injunction restraining the State of Himachal Pradesh from realising the balance of the licence-fees due from him. Several technical objections were raised to the maintainability of that suit and thereafter the suit was withdrawn on May 12, 1953, with liberty granted under O. 23, R. 1, Civil Procedure Code to file a fresh suit. In pursuance of this liberty the suit out of which the appeal before us arises was instituted in the Court of the District Judge, Mandi, on May 5, 1953, which was substantially one for damages for breach of contract.

(3.) The Union of India against whom the suit was brought, raised several defences both on the merits as well as of a technical nature, the latter being mainly two:(1) that the suit was bad for want of a proper notice under S. 80 of the Civil Procedure Code, and (2) that the suit was barred under the Punjab Land Revenue Act as applied to Himachal Pradesh as well as under the Punjab Excise Act, 1914 and the Rules made thereunder. The learned District Judge upheld the technical objections raised but also recorded his findings on the merits and the findings on most of the items of claim were against the appellant. The appellant's suit was dismissed. An appeal was thereupon taken by the appellant to the judicial Commissioner, Himachal Pradesh who substantially agreed with every one of the findings of the learned District Judge both on the technical objections to the suit as well as on the merits in so far as they were against the appellant. He further reversed the finding on one of the items of the claim which the trial Judge had found in appellant's favour. The appeal was accordingly dismissed. The appellant thereafter applied for a certificate of fitness under Art. 133(1) (b) for preferring an appeal to this Court but the same having been rejected, he applied for and obtained special leave from this Court and that is how the appeal is now before us.