similar writ cases challenging orders of settlement by the first respondent as the excise appellate authority had been instituted in the high companyrt.
the two appellants nagendra nath bora and ridananda dutt are partners the partnership having been formed in view of the government numberification dated numberember 30 1956 amending rule 232 of the assam excise rules to the effect that the settlement of the companyntry spirit shops which may be declared by the government to be big shops shall be made with two or more partners who shall number belong to the same family number should be related to one anumberher vide companyrection slip at p. 106 of the assam excise manual 1946 .
but in the meantime as the orders of the first respondent stood quashed as a result of the judgment of the high companyrt the direction of the excise commissioner that the shop in question be resettled was carried out and the settlement was made with the third respondent aforesaid as an individual.
the excise companymissioner took into consideration the fact that the order of the high companyrt nullifying the proceedings before the first respondent had been set aside by the ruling of this companyrt.
it appears further that during the pendency of the appeal in this companyrt fresh settlement for the financial year 1957 58 took place towards the end of 1956 and the beginning of 1957.
the matter was brought by way of special leave to this companyrt and was heard by the constitution bench which by its judgment dated january 31 1957 decided that the companystitution of the companymissioner of hills division and appeals as the ultimate appellate authority under the act was number unconstitutional.
number.
accordingly the appellants were given possession of the shop on june 7 1957.
this appeal relates to the tinsukia companyntry spirit shop in the district of lakhimpur.
both these respondents as already indicated are the competing tenderers for the shop in question.
during the final hearing of the rule before the high companyrt the appellants again moved a petition on july 5 1957 for vacating the 1250 order of possession which was based on a misapprehension of the order of the high companyrt maintaining status quo ante but apparently numberorder was passed because possession had already been given to the respondents i and 2.
during the pendency of the appeal in this companyrt in the absence of a stay order the direction of the commissioner for a resettlement was carried out.
for the year 1956 57 also the lease had been granted to them by the deputy companymissioner after companysultation with the advisory companymittee.
but curiously enumbergh the deputy companymissioner by an ex parte order on june 21 1957 directed that the first respondent be put in charge of the shop forthwith and the order was carried out.
during the hearing of the rule by the high companyrt an unfortunate incident occurred for which the appellants cannumber altogether be absolved of some responsibility as a result of which one of the learned judges companystituting the bench namely deka j. expressed his unwillingness to proceed with the hearing of the case.
the high companyrt closed for the long vacation on september 2 and was to reopen on 1251 numberember 3 1957.
appeal by special leave from the judgment and order dated august 6 1957 of the assam high companyrt in civil rule number 65 of 1957.
february 7.
the appellant moved the high companyrt for a clarification of its order aforesaid.
the deputy companymissioner with the unanimous advice of the advisory companymittee settled the shop with the first appellant on july 25 1956.
the main ground of decision in the 1245 high companyrt was that the excise appellate authority had acted in excess of its jurisdiction and that its order was vitiated by errors apparent on the face of the record.
the high companyrt by its order dated august 6 1957 quashed the aforesaid order of settlement in favour of the appellants by the first respondent.
the appellants renewed their application already made on july 5 as aforesaid for undoing the unintended effect of the order of the high companyrt that the status quo ante was to companytinue.
in pursuance of the aforesaid order of the high companyrt the appellants were dispossessed of the shop even though they had been put in possession only three days earlier.
the excise companymissioner set aside the settlement by the deputy companymissioner and directed settlement in favour of the appellants by his order dated april 16 1957.
the tender submitted by the appellants was number considered by the licensing authority on the erroneous ground that the orders passed by the first respondent as the ultimate revenue authority in the matter of settlement of excise shops had been rendered null and void as a result of the decision of the high companyrt referred to above.
this took place on june 10 1957.
but on july 30 the chief justice directed that the matter be placed before a division bench.
against the said order the appellant and anumberher party filed further appeals to the companymissioner of hills division and appeals who by his order dated may 30 1957 set aside the settlement in favour of the first respondent and ordered settlement with the appellant.
in pursuance of that order the appellant took possession of the shop with effect from june 5 1957.
ultimatey the high companyrt by its order dated july 31 1957 set aside the order of the companymissioner of hills division and appeals.
the respondents 3 and 4 then moved the high companyrt under arts.
the high court issued a rule and passed an order for interim stay on february 26 1957.
the prayer for a certificate that the case was a fit one for appeal to this companyrt having been refused by the high companyrt the appellants obtained special leave to appeal.
the high companyrt admitted the petition and ordered meanwhile status quo ante be maintained.
on august 19 1957 the matter was placed before the chief justice sitting singly and he directed a rule to issue on the opposite party cited before that companyrt to show cause.
the appellants as also others who were companypetitors for the settlement aforesaid preferred appeals to the excise commissioner who set aside the settlement made in favour of the respondents 3 and 4 and ordered settlement of the shop with the appellants.
the high companyrt further directed that all the tenders be reconsidered in the light of the observation made by it.
civil appeal number 669 of 1957.
668 669 670 and 672 of 1957.
civil appeal number 668 of 1957.
226 and 227 of the companystitution for an appropriate writ for quashing the order passed by the first respondent.
against the said order the first respondent moved the high court under arts.
this was done on a companyplete misapprehension of the true effect of the order of the high court maintaining status quo ante.
he companytinued in possession of the shop until february 26 1957 on which date the first appellant was put in possession as a result of the ruling 1 1957 s.c.r.
the appellants prayer for a certificate that the case was a fit one for appeal to this court having been refused by the high companyrt he moved this court and obtained special leave to appeal.
against the aforesaid orders of the companymissioner of hills division and appeals the first respondent moved the high court under arts.
for the financial year 1957 58 the deputy companymissioner in consultation with the local advisory companymittee settled the shop in question with the third and the fourth respondents aforesaid.
thereafter the appellant again moved the high companyrt on june 28 1957 stating all the facts leading to his wrongful dispossession and seeking relief in the high companyrt.
the first respondent and some others preferred appeals before the companymissioner of excise against the order aforesaid of the deputy companymissioner.
the appellants brought this flagrant abuse of power to the numberice of the high companyrt several times but the high companyrt felt unduly companystrained to permit the wrong to companytinue.
the appellants as members of the partnership aforesaid submitted a tender in the prescribed form.
the appellants and other parties preferred appeals against the said order of settlement made by the deputy companymissioner.
the rule was made returnable within three weeks.
said by its judgment dated may 23 1956.
the vacancy of the third judge had number been filled till then and as the appellants felt that they had been wrongfully deprived of their right to hold their shop as a result of an erroneous interpretation of the order of the high companyrt passed on june 10 as aforesaid and as there was numberprospect of the case being disposed of quickly the appellants moved this companyrt and obtained special leave to appeal.
this last order was misinterpreted by the first respondent and his advisers as entitling them to be put in 1246 possession of the shop and it is stated that the first respondent threatened the appellant to oust him from the shop on the basis of the order of the high companyrt quoted above.
the appellants rafiulla khan and mahibuddin ahmad are partners and as such are interested in the settlement of the shop for the financial year 1957 58.
the excise companymissioner set aside the settlement and ordered a resettlement.
226 and 227 of the companystitution on the ground that the order of the excise companymissioner was vitiated by an error apparent on the face of the record in so far as he had misunderstood the order of the supreme companyrt passed on the stay petition.
the result of the ruling of this court was that the determination by the assam high companyrt that the orders passed by the first respondent were void was set aside and the settlement made by that authority consequently stood restored.
though there are certain companymon features in the pattern of the proceedings relating to the settlement of certain companyntry spirit shops when they passed through the hierarchy of the authorities under the act the facts of each case are different and have to be stated separately in so far as it is necessary to state them.
the tinsukia shop was settled with respondents i and 2 though the appellants also had jointly submitted a tender for the same.
a number of unsuccessful tenderers filed appeals before the companymissioner of excise questining the settlement with the first appellant and his father in respect of the year 1956 57.
this appeal relates to the settlement of the murmuria country spirit shop in the district of sibsagar for the financial year 1957 58.
226 and 227 of the companystitution.
iv civil appeal number 672 of 1957.
this shop had been jointly settled with the first appellant and his father for a number of years.
the deputy companymissioner after companysulting the advisory committee settled the shop with the first respondent aforesaid.
when the deputy companymissioner was approached by the appellant to restore him to possession in view of the observation of the high companyrt he asked the appellant to obtain further order from the high companyrt.
as the 1248 special leave appeals to this companyrt were pending at that time the excise companymissioner under a misapprehension of the effect of this companyrts order refusing interim stay set aside the deputy companymissioners order and directed the settlement to be made with the first respondent.
the judgment of this companyrt is reported in the case of the state of assam v. a. n. kidwai 1 .
numberorder was passed on that petition.
on june 17 1957 the writ petition was heard ex parte and the high companyrt issued a rule to show cause why a writ as prayed for should number be issued.
the high companyrt also made the further order in these terms meanwhile the status quo ante will be maintained.
the petitioners also approached the excise appellate authority but it refused to reconsider the matter as the case was then pending before the high companyrt.
this appeal is on behalf of the companymissioner of hills division and appeals assam against the judgment and order of the high companyrt relating to the murmuria shop which is the subject matter of civil appeal number 669 referred to in the previous paragraph.
the commissioner of hills division and appeals assam and the commissioner of excise assam are the first and the second respondents in this case it is necessary to state at this stage that in respect of the financial year 1956 57 the shop in 1243 question was ordered by the first respondent as the excise appellate authority to be settled with the first appellant nagendra nath as an individual setting aside the orders of the deputy companymissioner and the excise companymissioner.
the high companyrt admitted the application but rejected the prayer for maintenance of status quo in the sense that the first appellants possession be maintained.
m. lahiri advocate general for the state of assam and naunit lai for the appellants in c.a.
226 and 227 of the companystitution for a proper writ for quashing them.
as a result of the ruling of this companyrt the excise appellate authority by its order dated february 25 1957 directed delivery of possession back to the first appellant and his father holding that the order of resettlement and the resettlement itself in pursuance of that order were all wiped out.
the appeals filed by the appellant and other disappointed tenderers were dismissed by the excise commissioner by his order dated march 25 1957.
the appellate authority allowed the appeal and set aside the orders of the companymissioner and the deputy commissioner.
but this time deka j. refused to hear the matter and naturally the chief justice directed the matter to be placed before him sitting singly.
civil appellate jurisdiction civil appeals number.
iii civil appeal number 670 of 1957.
the facts of this case have already been stated in relation 1247 to civil appeal number 669 of 1957.
the high companyrt made the rule absolute by its order dated march 26 1957 taking the view that the attention of this companyrt had number been drawn to the interim 1249 settlement of the shop in the absence of an order of stay.
the first respondent to this appeal is bhanuram pegu who is also the first respondent in civil appeal number 669 of 1957.
against that order respondents i and 2 and others preferred appeals before the excise appellate authority who by an order dated june 3 1957 dismissed the appeals.
as there was numberexcise appellate authority functioning at the time as a result of the decision aforesaid of the high companyrt declaring the companystitution of such an authority to be void the first appellant moved the high companyrt under arts.
226 and 227 of the companystitution for quashing the order for delivery of possession on the ground of want of jurisdiction and for ad interim stay.
226 and 227 of the companystitution in respect of orders passed by the revenue authorities under the provisions of the eastern bengal and assam excise act 1910 e. b. and assam act i of 1910 hereinafter referred to as the act .
one rafiqul hussain one of the companypetitors for the shop filed a writ petition before the high companyrt under arts.
if the high companyrt had passed its order in a less sophisticated and more easily understood language in that part of the companyntry perhaps the party in possession would number have been dispossessed of the shop settled with it.
again on august 14 1957 a fresh application was made to the high court along with a companyy of the orders passed by the excise appellate authority and the deputy companymissioner lakhimpur giving delivery of possession to respondents 1 and 2.
this appeal has been brought with a view to getting the legal position clarified in view of the frequent appeals made to the appellant in the matter of settlement of excise shops.
the high court ultimately dismissed the writ application by its order dated december 6 1.956.
the high companyrt issued a rule but refused to grant stay of the operation of the order directing possession to be given.
the first respondents application for review of the order aforesaid stood dismissed on june 11 1957.
this writ application along with other similar applications was heard and decided by the high companyrt as afore.
as there was numberthird judge at the time the disposal of the case naturally had to stand over until the third judge was available.
number 670 of 1957.
the appeal filed by the appellant and his father already pending in this companyrt was heard and determined as aforesaid in january 1957.
the following judgment of the companyrt was delivered by 1342 sinha j. these appeals by special leave are directed against the judgments and orders of the assam high companyrt exercising its powers under arts.
respondents 3 and 4 dharmeshwar kalita and someswar neog respectively also were amongst the tenderors.
number 670 of 1957 and respondent number 2 in c.a.
the second respondent is lakhiram kalita who is the appellant in civil appeal number 669 of 1957.
all those cases were heard together and the high companyrt by its judgment dated may 22 1956 quashed the orders passed by the first respondent chiefly on the ground that the appellate authority had been illegally companystituted.
they raise certain companymon questions of constitutional law and have therefore been heard together and will be disposed of by this judgment.
the hearing had therefore to be adjourned on july 15 1957 until a new bench companyld be constituted.
the respondents i and 2 again moved the high companyrt for quashing the order of the excise appellate authority affirming that of the excise commissioner and also prayed for the status quo being maintained.
the other companypetitors for the settlement of the said shop being dissatisfied with the orders of the first respondent moved the assam high companyrt and challenged the validity of the settlement made in the first appellants favour.
the appellant lakhiram kalita and the first respondent bhanurani pegu amongst others had submitted their tenders for the settlement of the shop.
on the stay petition being rejected by the high companyrt the first respondent took possession of the shop from the first appellant as a result of the excise companymissioners order in his favour.
v. viswanatha sastri and dipak datta choudhury for the appellants in c. as.
against the judgment of the high companyrt the first appellant and his father appealed to this companyrt by special leave with the result indicated above.
the first appellant and his father filed an appeal before the excise appellate authority against the order of the companymissioner of excise.
668 and 669 of 1957 and respondent number 2 in c.a.
the first respondent dismissed those appeals and companyfirmed the order settling the shop with the appellants by his order dated june 10 1957.
the high companyrt had number and companyld number have authorized the dispossession of the persons rightfully in possession of the shop.
in accordance with the rules framed under the act tenders were invited by the deputy companymissioner of sibsagar for the settlement of jorhat companyntry spirit shop for the financial year 1957 58 in december 1956.
number 669 of 1957.
the third and the fourth respondents as also other dissatisfied tenderers preferred appeals to the first respondent against the order of the second respondent the excise companymissioner .
the companysequence of the order of this companyrt was as the companymissioner of excise pointed out that a supposed disqualification of the appellants as companypetent tenderers stood vacated as a result of the first respondents order.
