STATE OF U P Vs. VIJAY KUMAR TALWAR

JUDGEMENT

(1.) The above appeal has been preferred by the defendants of the O.S. No.255 of 1984 against the original judgment and decree dated 31st March, 1990 passed by the 3rd Additional Civil Judge (Sri V.K. Srivastava).

(2.) The Court below has decreed the suit for recovery of Rs.18,18,728-88 by providing that out of the said sum, a sum of Rs.7,10,282/- be adjusted which is due to the defendants towards the balance licence fee.

(3.) Vijai Kumar Talwar instituted the above suit as an indigent person for recovery of the amount mentioned in the relief clause with the allegations that he along with three persons namely Sunder Lal Yadav, Bhagwati Prasad Mishra and Ratan Lal Talwar was licensee of 18 country liquor shops known as "Bareilly Group of Country Liquor Shops" for the Excise Year 1977-78 commencing from 24th April, 1977 to 31st March, 1978. Under the license, the plaintiff asserts that the licensees were entitled to open the shops from 10:00 AM to 10:00 PM. On 18th September, 1977 the Commissioner of Excise has issued a general order restricting the business hours to 8:00 PM. The said order of the Commissioner was challenged by the plaintiff as well as by the other excise licensees by various writ petitions before the High Court. The plaintiffs group filed writ petition No.4046 of 1977 wherein on 16.12.1977 an interim order to the effect that the defendants would not interfere in the plaintiffs' carrying on the business of selling country liquor subject to deposit of licence fee, was passed. The plaintiff could not deposit the licence fee and therefore, could not take the advantage of the interim order and had to close their shop at 08:00 PM in the night as per notification dated 18th of September, 1977. The plaintiff has suffered loss and is entitled for refund of proportionate auction money which according to the calculation as given in para 18 of the plaint comes to Rs.16,70,271.88. The further case of the plaintiff is that the plaintiff is entitled to get the remission. The shops were also ordered to be closed for seven days. Certain other pleas were raised that the shops were ordered to be closed on 12, 13 and 14th June, 1977 on account of Vidhan Sabha election for which the plaintiff is entitled for remission, was also claimed. In para 29 of the plaint, it was stated that the writ petition filed by the plaintiffs group was allowed on 20th February, 1978 but the plaintiff could get the knowledge of the above fact only in the first week of April, 1978.