BISHNU RAM BORAH Vs. PARAG SAIKIA

JUDGEMENT

(1.) This appeal by special leave directed against the judgment and order of the Gauhati High Court dated November 4, 1982 concerns the propriety of the grant of a liquor licence. By the judgment the High Court quashed an order of the Board of Revenue dated February 11, 1982 affirming the grant of licence in respect of Jorhat Country Spirit Shop No. 1 made by the Deputy Commissioner, Sibsagar, Jorhat, by his order dated August 28, 1981, and instead of remitting the matter to the Board of Revenue for a decision afresh, the High Court directed the Deputy Commissioner to settle the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant up to March 31, 1984.

(2.) The short question that arises in the appeal is whether it was proper exercise of jurisdiction by the High Court under Art. 226 of the Constitution to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the liquor licence. Further, a question arises whether it was impermissible for the High Court to have embarked upon an inquiry into the facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue based on appreciation of evidence that one set of rival claimants i.e. Parag Saikia and Prafulla Barua, respondents Nos. 1 and 2 were entitled to grant of such privilege in preference to the appellants under the note beneath R. 223 (2) of the Assam Excise Rules, 1945 (for short 'Rules').

(3.) The facts of this case present a rather disturbing feature. Jorhat Country Spirit Shop No. 1 is a big excise shop within the meaning of R. 232 of the Rules. Under cl. (a) thereof, the settlement of such a country liquor shop has to be made with a pair of tenderers constituting two or more partners. Five joint, tenders were received in response to the notification issued by the Deputy Commissioner Sibsagar, Jorhat, calling for tenders of the country liquor shop for the financial year 1983-84. The Deputy Commissioner, Sibsagar, Jorhat, in consultation with the Advisory Committee constituted for that purpose as required under R. 208 by his order dated August 28, 1981 settled the shop with the two appellants Bishnu Ram Borah and Bipin Chandra Borah. One set of the unsuccessful tenderers were respondents Nos. 1 and 2 Parag Saikia and Prafulla Barua. Of them, Parag Saikia respondent No. 1 herein was held by the Deputy Commissioner to be a mere benamidar of a prominent businessman of Dibrugarh while respondent No. 2 Prafulla Barua was a student studying for his B. Sc. degree and staying in a hostel at Golaghat, which is a place some 30 miles away from Jorhat. The Board of Revenue, Assam, by its order dated February 11, 1982 upheld the settlement of the country liquor shop with the appellants. Being aggrieved by the decision of the Board, two sets of unsuccessful tenderers viz. respondents Nos. 1 and 2 and the interveners Daya Ram Borah and Prabin Kumar Borah filed petitions under Art. 226 of the Constitution before the Gauhati High Court being Civil Rules Nos. 215 of 1982 and 1163 of 1982 (reported in 1983 Tax LR NOC 114). The High Court instead of taking up both the writ petitions together, heard and decided the writ petition filed by respondents Nos. 1 and 2 and by its judgment dated November 4, 1982 quashed the order of the Board of Revenue and remitted the appeal to the Board for a decision afresh in the light of the observations made by it. The Board however by its order dated December 3, 1982 maintained the settlement of the country liquor shop with the appellants. Thereupon, respondents Nos. 1 and 2 again moved the High Court under Art. 226 for, appropriate writ, direction or order in the matter of grant of the liquor licence. The High Court by its judgment dated May 7, 1983 (reported in 1983 (2) Gauhati LR 78) quashed the order of the Board of Revenue and instead of remitting the matter to the Board for a decision afresh issued a writ of mandamus by which it directed the Deputy Commissioner to settle the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant up to March 31, 1984. While making the direction the High Court observed that in case it was found that respondents Nos. 1 and 2 were benamidars of anybody, it would be open to the settling authority i. e. the Deputy Commissioner to cancel liquor licence'. Further, it observed that 'the grant would be subject to the result of the decision in the writ petition filed by the interveners i. e, Civil Rule No. 1163 of 1982'.