GULAB SINGH Vs. STATE OF H.P.

JUDGEMENT

(1.) The third respondent got licence for running vends for the sale of Indian Made Foreign liquor and country liquor in Mandi District during the financial year 1986 -87. The petitioner herein entered into a contract on 1st day of May, 1986 with the third respondent for having sale agency for the year 1986 -87, the details of which are set out in the contract. A copy of the contract has been produced before us as Annexure R -1. The petitioner did not pay the amount due to the third respondent and a claim was made by the third respondent. The matter was referred to the Arbitrator .under Section 73 of the H.P. Co -operative Societies Act, 1968. The Arbitrator passed an award for Rs. 30,000/ -in favour of the third respondent. Claiming that more would be due to the third respondent an appeal was filed by the third respondent to the Joint Registrar (Development) Co -operative Societies. By an order dated 29th of March, 1990, the Joint Registrar allowed the appeal and granted an award of Rs. 1,50,910/ - including interest, arbitration charges and fee making a total of Rs. 1,74,429.07 paise minus Rs. 23,518.42 paise allowed as a relief to the petitioner herein.

(2.) This writ petition has been filed by the petitioner challenging the said award passed by the Joint Registrar. The first contention of the petitioner is that I the contract between the petitioner and the third respondent would amount to transfer of the licence obtained by the third respondent and it is, therefore, illegal and void. The third respondent is not entitled to enforce the said contract and claim any amount from the petitioner, as has been done in the arbitration proceedings. Consequently, according to the learned Counsel for the petitioner, the award passed by the Arbitrator as well as the Joint Registrar is unsustainable and it has to be quashed.

(3.) This objection was not raised before the Arbitrator or before the Joint Registrar. It is for the first time raised by the petitioner in this Court. The objection cannot be said to be purely a question of law as it depends upon the terms of the contract between the petitioner and the third respondent. The question of fact whether the contract would amount to transfer of licence or merely an appointment of agent to run the business must be decided by the Arbitrator in the first instance as a fact finding authority and later by the appellate authority, namely, the Joint Registrar. Such question not having been raised by the petitioner herein before the fact finding authority, it is not open to him to raise that question for the first time under Article 226 of the Constitution of India, as this Court is not sitting in appeal over the order of the Joint Registrar or the award of the Arbitrator.