ABDUL SALAM Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Brief facts may first be noticed. The appellant was acting as a contractor for carriage of food grains by an order of the Director. Food and Supplies, Jammu. A complaint was made to the effect that food grains had been delivered short of consignment. The Deputy Commissioner, Food and Supplies, Jammu, thereupon enquired into the matter and certified that an amount of Rs. 90699/- was due from the appellant on account of the shortage of food grains delivered by him, while acting as the carriage contractor. This amount was sought to be recovered from the appellant as arrears of land revenue. A writ of demand was issued to the appellant calling upon him to make the payment of Rs. 90699/-. The appellant filed a writ petition questioning the recovery principally on the ground that no hearing had been granted to him before the amount was certified as due and recoverable from him as arrears of land revenue. The writ petition was decided against the appellant on 30-9-1969 and the judgment is reported as 1970 Kash LJ 176. The appellant subsequently filed a suit for injunction seeking to restrain the State from making recovery of the said amount That suit failed in the trial court and the first appeal too was dismissed by the appellate court. The appellant then came up in a second appeal to this Court, When the case came up for arguments before a learned single Judge of this Court (Hon. Mufti J. as his Lordship then was), it was argued that the order of recovery was vitiated by the fact that no hearing had been granted to the appellant before the amount was certified as due from him. It was argued that even an administrative order involving civil consequences must, according to the settled principles of law, be made after notice to the person likely to be affected by the order and after affording him a reasonable opportunity to be heard in the matter and in that view the correctness of the view expressed by the Division Bench in Abdul Samad Pandit v. State reported in AIR 1969 J & K 52, to the effect that no hearing was required to be given to the concerned (person) before an amount was certified to be due, as arrears of land revenue, was doubted before the learned single Judge and it was argued that the said judgment ran contrary to the law subsequently declared by the Supreme Court in certain other matters.

(2.) The learned single Judge found that in the earlier writ petition, filed by the appellant against the respondent, the question whether he was entitled to a hearing before the amount was certified to be due from him was specifically pleaded and decided against him.

(3.) On behalf of the State it was argued before the learned single Julge that the decision in the earlier writ petition would operate as res judicata in the subsequent suit and that the appeal was liable to be dismissed on that ground. Counsel for the appellant met the objection by urging that since the decision in the earlier writ petition ran contrary to the principles subsequently laid down by the Supreme Court, holding that even an administrative order involving civil consequences must be made after notice to the person affected by it and after affording him a reasonable opportunity to be heard in the matter, the decision in the writ petition was no decision in the eye of law and as such that decision could not operate as res judicata. The learned Single Judge thereupon formulated the following questions of law :