1967 Supreme(Cal) 42

HIGH COURT OF CALCUTTA
B.C. MITRA, J.

Mishri Debi Agarwal - Appellant
Versus
Asstt Collector Of Central Excise – Respondent
Decided On : March 03, 1967

A writ of mandamus will not be issued where the petitioner has suppressed material facts from the court, where there is a serious dispute with regard to the title to the property in question, and where the petitioner has an alternative remedy by a suit.

Headnote:

CENTRAL EXCISE - License for clearance of tea - Grant of license to one partner of dissolved firm - Violation of rules of natural justice - Writ of mandamus - Alternative remedy by suit - Existence of serious dispute regarding title to property - Maintainability of writ petition.

Fact of the Case:

Petitioner, a partner in a firm carrying on business in tea gardens, sought a writ of mandamus directing the respondents to forbear from allowing the respondent No. 3 to obtain clearance of consignment of tea in the manner mentioned in paragraph 17 of the petition and for an injunction restraining the said respondents from allowing the respondent No. 3 to obtain clearance of consignment of tea from Bagdogra Tea Estate and Rungneet Tea Estate. The petitioner's case was that since the inception of the partnership the AL-4 Farms and b-2 Bond required under the Central Excise and Salt Act, 1944, (hereinafter referred to as the Act) for the purpose of obtaining clearance of tea from the garden, were signed on behalf of the said partnership by all the said partners. It was alleged that out of the funds of the said partnership, another tea garden known as rungneet Tea Estate, was purchased by the said firm on April 25, 1963. It was also alleged that on May 14, 1965, the said Sm. Ganga Debi Agarwal addressed a letter, through her solicitor, to the petitioner and the other partners expressing her intention to dissolve the said partnership, with effect from May 20, 1965. A copy of this letter was forwarded to the respondent No. 1, who by his letter dated May 29, 1965, to all the partners of the said firm, after informing the said partners that he had received the solicitor's notice about the dissolution of the firm, called upon the partners to execute all documents for clearance of tea from the said two tea estates. This letter was followed by another letter dated June 1, 1965, whereby the respondent No. 1, informed the said four partners, that he had received a notice of dissolution from the solicitor of Sm. Gangs Debi Agarwal and called upon the said partners to apply afresh for amendment of AL-4 Licences for the tea estates under the joint signatures of the partners or their authorised representatives. The said partners were further informed that upon receipt of AL-4 applications signed by the partners jointly the respondent No. 1 would inform the said partners about the date and time for execution of the B-2 Bonds for the said tea estates jointly by all the partners or by their authorised representatives. In the last paragraph of the letter the respondent No. 1 requested the partners to inform him about the interest of the partners in the said two tea estates. This letter was not answered by any of the partners.

Finding of the Court:

The court held that the petitioner was not entitled to any relief with regard to the license which expired on December 31, 1966. The court also held that the question of violation of the rules of natural justice with regard to license to be issued in future has not been raised by the petitioner, and indeed such a question cannot be raised as the respondents No. 1 and 2 had not yet dealt with any application for a license from the respondent No. 3 for any period subsequent to December 31, 1966. The court further held that the petitioner had suppressed material facts from the court, including the fact that she had filed a suit in this court for appointment of a receiver and injunction restraining the respondent No. 3 from doing anything with regard to the said two tea estates, and that she had also suppressed the fact that the dispute between the partners were referred to arbitration, that the arbitrators had made an award allowing various properties to the partners, that the award was acted upon by the partners, that on the basis of allotment of properties under the award deeds of sub-partition were executed by the parties, that the petitioner was a party to one of the deeds of sub-partition dated June 25, 1964, that the award dated April 7, 1964, was accepted by all the partners of the firm including the petitioner, who had put her signature to the award as a token of her acceptance of the same, that the award was explained to all the partners in Hindi by one B. L. Agarwal, and that the petitioner had accepted the allotment of the properties under the award and was in possession and enjoyment of the same. The court also held that there was a serious dispute with regard to the title to the said two tea gardens, and the petitioner's right to be heard before the license with regard to tea gardens was issued to the respondent No. 3 depends entirely on her title to the said two tea gardens. This question of title to the properties is the subject matter of a suit in this court and also of applications regarding the validity and existence of the arbitration agreement and also the award itself. That being so no writ can be issued to uphold the petitioner's contention that rules of natural justice had been violated as she was denied the opportunity of being heard before a license was issued to the respondent No. 3. The court also held that the petitioner had an alternative remedy by a suit, and she had adopted that remedy by filing a suit in this court.

Issues: 1. Whether the petitioner was entitled to a writ of mandamus directing the respondents to forbear from allowing the respondent No. 3 to obtain clearance of consignment of tea in the manner mentioned in paragraph 17 of the petition and for an injunction restraining the said respondents from allowing the respondent No. 3 to obtain clearance of consignment of tea from Bagdogra Tea Estate and Rungneet Tea Estate? 2. Whether the petitioner had suppressed material facts from the court? 3. Whether there was a serious dispute with regard to the title to the said two tea gardens? 4. Whether the petitioner had an alternative remedy by a suit?

Ratio Decidendi: 1. The court held that the petitioner was not entitled to any relief with regard to the license which expired on December 31, 1966, as any relief granted to the petitioner on the ground that rules of natural justice had been violated as she was not heard in issuing the license to the respondent No. 3, would indeed be worthless, ineffective and infructuous. 2. The court held that the petitioner had suppressed material facts from the court, including the fact that she had filed a suit in this court for appointment of a receiver and injunction restraining the respondent No. 3 from doing anything with regard to the said two tea estates, and that she had also suppressed the fact that the dispute between the partners were referred to arbitration, that the arbitrators had made an award allowing various properties to the partners, that the award was acted upon by the partners, that on the basis of allotment of properties under the award deeds of sub-partition were executed by the parties, that the petitioner was a party to one of the deeds of sub-partition dated June 25, 1964, that the award dated April 7, 1964, was accepted by all the partners of the firm including the petitioner, who had put her signature to the award as a token of her acceptance of the same, that the award was explained to all the partners in Hindi by one B. L. Agarwal, and that the petitioner had accepted the allotment of the properties under the award and was in possession and enjoyment of the same. 3. The court held that there was a serious dispute with regard to the title to the said two tea gardens, and the petitioner's right to be heard before the license with regard to tea gardens was issued to the respondent No. 3 depends entirely on her title to the said two tea gardens. This question of title to the properties is the subject matter of a suit in this court and also of applications regarding the validity and existence of the arbitration agreement and also the award itself. That being so no writ can be issued to uphold the petitioner's contention that rules of natural justice had been violated as she was denied the opportunity of being heard before a license was issued to the respondent No. 3. 4. The court held that the petitioner had an alternative remedy by a suit, and she had adopted that remedy by filing a suit in this court.

Final Decision: The petition was dismissed.