JUDGMENT

SARKARIA, J:— This appeal by special leave is directed against a judgment, dated Aug. 23, 1979, of the High Court of Assam at Gauhati.

2. The material facts are that the Deputy Commissioner, Sibsagar invited tenders for settlement of the Meleng Country Spirit Shop No. 3 of Jorhat Sub- Division for the period June 1, 1979 to March 31, 1980. Fourteen other persons, including respondent 1, also submitted tenders for settlement of the said shop.

3. The Deputy Commissioner (hereinafter called the Primary Authority) on the advice of the Advisory Committee constituted under R.208 of the Assam Excise Rules, by an order dated April 30, 1979, settled the shop with the appellant for the aforesaid period.

4. Mukunda Bore, respondent 1, preferred an appeal under S.9 of the Assam Excise Act before the Assam Board of Revenue. The Board on the application of respondent 1 herein, by an order dated May 31, 1979, stayed the operation of the aforesaid settlement order, dated April 30, 1979, observing that the appellant (respondent 1 herein) was a sitting lessee and had alleged that the financial position of the appellant herein is not good and that the latter had suppressed facts in the tender. With this reasoning, the Board passed an interim order staying the operation of the settlement during the pendency of the appeal.

5. Against the Boards interim order, dated May 31, 1979, Mukunda Bore filed a writ petition in the High Court which, by an interim order dated June 1, 1979, stayed the operation of the interim order, dated May 31, 1979, passed by the Board.

6. The appellant thereafter on June 6, 1979 took possession of the shop on payment of Rs. 6,905.07 which included the cost of liquor, bottles, boxes, carrying charges, vend fee and duty etc., to the former lessee, that is, respondent 1.

7. Subsequently, by a judgment dated Aug. 22, 1979, the Board allowed the appeal of respondent 1, set aside the settlement order of the Primary Authority that had been made in favour of the appellant, and settled the shop with respondent 1 for the remainder of the term.

8. Against this judgment, dated Aug. 22, 1979, the appellant filed a writ petition under Article 226 of the Constitution before the Gauhati High Court, which, by an order dated Aug. 23, 1979, dismissed the petition in limine.

9. It may be observed that Mukunda Bore, appellant herein, had passed B.Sc. Part I Examination. He was an unemployed youth of about 32 years and belonged to Chutia Community which falls in the "more backward community" and was entitled to preferential treatment in the matter of settlement of C.S. shop as provided under R.223 (2) of the Assam Excise Rules, 1945. Respondent 1, Bangshidhar Buragohain, is an Ahom and is recognised by the Rules as "other backward class".

10. In the information on his financial capacity submitted by Mukanda Bore in the Form prescribed under the Assam Excise Rules, he mentioned that his "father will finance him with Rupees 25,900 or more" and in support filed an affidavit of his father, Mukta Ram Bora. Particulars of the funds held by the father were given by him in his affidavit as under:

(1) Rs. 20,000 held under Account No. 9774 lying in deposit at Jorhat Post Office.

(2) A balance of Rs. 5,902.50 in Savings Bank Account No. 8648 of the United Bank of India, Jorhat Branch.

The information supplied by Mukanda Bore or his father in the affidavit did not disclose any other financial source. The Inquiry Officer endorsed the same information in his report regarding the appellants tender.

11. As against this, Bangshidhar Buragohain, respondent herein, filed an affidavit, dated June 26, 1979, pointing out that the deposit of Rs. 20,000 in the Jorhat Post Office held by the father of Mukunda Bore was a term deposit which would mature for encashment only by the middle of 1983 and consequently, this deposit was not readily available for investment in the business. This was countered by a certificate, dated June 19, 1979, issued by the Assistant Post Master,