DALICHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a plaintiff's appeal against the judgment and decree of the District Judge, Partapganh, dated 30-3-67 whereby he reversed the decree passed by the Civil Judge, Banswara, in civil suit No. 4 of 1963.

(2.) The relevants facts giving rise to this appeal are these: In pursuance of an advertisement dated 1-3-52 (Ex. 1/A) issued by the Excise and Customs Department. Rajasthan, licence for the sale of the liquor shop at village Bajar, tehsil Bagidiora, district Banswara for the year 1952-53 was auctioned on 17-3-52 in the office of the Deputy Commissioner, Excise and Customs, Udaipur Division, Udaipur. Raghavji son of Chokhaji and Bhimji son of Kacharu jointly gave the highest bid of Rs. 20,000 for the said liquor shop which was accepted. The bidders deposited one-sixth amount of the bid, namely, Rs. 3,330 according to the term No. 8 of the advertisement (Ex. 1/A) and obtained a receipt thereof on 25-3-52. The licence Ex. Z was issued in favour of the bidders, namely, Raghavji and Bhimji on 24-5 52. It being necessary under the terms and conditions of the licence to furnish security for the due performance of the contract, the plaintiff stood surety for the payment at all dues payable to the State under the terms and conditions of the licence Ex. 2 and the advertisement Ex. 1/A. The surety-bond executed by the plaintiff- appellant is Ex. 1, Under the terms and conditions of the licence, the licencees, namely, Raghavji and Bhimji were required to deposit the balance of the licence amount in ten monthly instalments. The licencees paid monthly instalments upto a certain period but thereafter committed defaults with the result that a sum of Rs. 10,006 remained outstanding against the licencees Raghavji and Bhimil The licence period expired on 31-3-53. On 19-4-53 the Assistant Commissioner, Excise, and Customs, Banswara. sent a notice to the plaintiff calling upon him to deposit the amount due from the licencees. On failure of the plaintiff to deposit the amount, the Assistant Commissioner initiated action under the provisions of the Rajasthan Public Demands Recovery Act, 1952, hereinafter called as the Act, and issued a certificate of requisition to the Collector, Banswara for realisation of the amount of Rs. 10,006 from the plaintiff as well as from the licencees Raghavji and Bhimji. The Collector, Banswara, in his turn, issued notice Ex. 4 on 9-12-53 informing the plaintiff that the certificate for Rupees 10,006 had been filed against him in his office and he should therefore either file an objection petition denying his liability within 30 days from the receipt of the notice or deposit the amount in the treasury failing which the certificate shall be executed and the amount recovered under the provisions of the Act. Along with the notice, the Collector, Banswara, also sent a copy of the certificate which is Ex. 5 on the record. The plaintiff in response to the notice Ex. 4 submitted an objection petition Ex. A/6 denying his liability on 5-1-54. It appears that this objection petition was sent to the Sub-Divisional Officer, Banswara, for disposal. It further appears that on 18-2-54 the plaintiff moved another similar objection petition to the Collector with a request that his objection petition should be first decided by the Requisition Officer, namely, the Assistant Commissioner, Excise and Customs, Banswara. It further appears that the application dated 18-2-54 was sent by the Collector to the Assistant Commissioner, Excise and Customs, Banswara, who rejected the same vide his order dated 167- 54 (Ex. A/11). The Assistant Commissioner thereafter realised a sum of Rs. 1,048 from the property of Raghavji and Bhimji. The objection petition dated 5-1-54 was then decided by the Sub- Divisional Officer who, it appears, rejected the same on 19-8-59 and ordered the Tehsildar to recover the amount of Rs. 8,958 from the plaintiff. The plaintiff then preferred an appeal to the Revenue Appellate Authority, Udaipur, challenging the legality of the order of the Sub-Divisional Officer dated: 19-8-59. The R.A.A. dismissed the appeal vide his order dated 22-6-60 (Ex 6). Ultimately, the plaintiff gave a notice under Section 80, C.P.C. and instituted a suit out of which this appeal has arisen, claiming the following reliefs against the State of Rajasthan and the Assistant Commissioner, Excise and Taxation, Banswara, formerly known as Assistant Commissioner, Excise and Customs, Banswara:---

(3.) The suit was resisted by the defendants. The defendants asserted that the certificate for the recovery of the amount was legally issued against the plaintiff and he is liable to pay the amount mentioned therein under the terms and conditions of the surety-bond executed by him. The various pleas raised by the plaintiff in his plaint and the defendants in their written statement would be clear from the following issues framed by the trial court: --