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High Court Of Delhi
SUDERSHAN KUMAR - Appellant
Versus
UNION OF INDIA - Respondent
Civil 548 of 1971
Decided On : 02/13/1973
WRIT PETITION - DISMISSED - ALTERNATIVE REMEDY - CIVIL SUIT - JURISDICTION - EXCISE ACT - LICENCE - PARTNERSHIP - JOINT HINDU FAMILY - MALA FIDE - DECLARATORY RELIEF - ARTICLE 226.
Fact of the Case:
Petitioner Sudershan Kumar Kalra filed a writ petition under Articles 226 and 227 of the Constitution praying that the orders of the Collector of Excise, Lieutenant Governor, Commissioner of Excise be quashed. The orders related to the L-2 license mentioned in the petition, which was the individual property of respondent No. 6, Kishan Lal Kalra, and the determination of the said license for non-renewal. The petitioner also prayed for a writ in the nature of mandamus or any other writ or directive or order directing that the L-2 license as issued on September 1, 1956, referred to in the petition to M/s. Esplanade Bar and Restaurant and modified from time to time be deemed to be still operative and in vogue.
Finding of the Court:
The court held that the petitioners had an alternative remedy in the form of a civil suit, which was a more effectual and adequate remedy in the facts and circumstances of the case. The court also held that the petitioners had already availed of this alternative remedy by filing a suit for rendition of accounts in respect of the business carried on by respondent No. 6 under the various licenses issued by the Excise authorities. The court further held that the impugned orders were also being challenged in the civil suit filed by Hans Raj, respondent No. 5. The court also noted that the contesting respondents in the civil suit had raised technical objections to the jurisdiction of the civil court to go into the question of correctness and validity of the impugned orders, but that these objections had been withdrawn by the respondents in the present writ petition.
Issues: 1. Whether the petitioners had an alternative remedy in the form of a civil suit? 2. Whether the petitioners had already availed of this alternative remedy? 3. Whether the impugned orders were also being challenged in the civil suit filed by Hans Raj, respondent No. 5? 4. Whether the contesting respondents in the civil suit had raised technical objections to the jurisdiction of the civil court to go into the question of correctness and validity of the impugned orders? 5. Whether these objections had been withdrawn by the respondents in the present writ petition?
Ratio Decidendi: 1. The existence of an alternative remedy is not a bar to the exercise of jurisdiction by the High Court under Article 226, but it is a rule of discretion and expediency and not one of jurisdiction or limitation on the power of the High Court. 2. In the facts of the case, it would be just and proper to decline the exercise of writ jurisdiction in favor of the petitioners. 3. The petitioners had already availed of an alternative remedy by filing a suit for rendition of accounts in respect of the business carried on by respondent No. 6 under the various licenses issued by the Excise authorities. 4. The impugned orders were also being challenged in the civil suit filed by Hans Raj, respondent No. 5. 5. The contesting respondents in the civil suit had raised technical objections to the jurisdiction of the civil court to go into the question of correctness and validity of the impugned orders, but these objections had been withdrawn by the respondents in the present writ petition.
Final Decision: The writ petition was dismissed, but the parties were directed to bear their own costs.
( 1 ) ON May 17, 1971, Sudershan Kumar Kalra filed this writ petition under Articles 226 and 227 of the Constitution praying that the following orders of the Collector of Excise, respondent No. 4, Lieutenant Governor, Union Territory of Delhi, respondent No. 2 and Commissioner of Excise, respondent No. 3 be quashed:
1. Order dated October 9, 1969 passed by the Collector of Excise holding that the L-2 licence mentioned in the petition was individual property of respondent No. 6, Kishan Lal Kalra; 2. Order dated March 31, 1971 passed by the Collector of Excise determining the said licence for non-renewal; 3. Order dated April 1, 1971, passed by the Lieutenant Governor sanctioning the issuance of fresh L-2 licence in favour of Kishan Lal Kalra ; and 4. Order dated April 6, 1971 passed in appeal by the Commissioner of Excise.
( 2 ) HE has also prayed in clause (b) of the prayer clause that a writ in the nature of mandamus or any other writ or directive or order be issued directing that the L-2 licence as issued on September 1, 1956, REFERRED TO to in the petition to M/s. Esplanade Bar and Restaurant and modified from time to time be deemed to be still operative and in vogue. The other respondents impleaded in the writ petition are Union of India, respondent No. 1, Hans Raj Kalra, respondent No. 5, Kishan Lal Kalra, respondent No. 6 and Jagmohan Kalra, respondent No. 7. The licence in question in the meantime was transferred in favour of Kishan Lal, Wine Merchants (P) Ltd. The petition was, therefore, amended and the Limited Company was added (in the first amended petition) as respondent No. 8.
( 3 ) ON October 1, 1971, the petitioner Sudershan Kumar Kalra died. His widow, two sons, one of whom is a minor and three minor daughters thereupon applied to be impleaded as petitioners in place of the deceased. By order dated December 21, 1971, this application was accepted subject to just exceptions. The petition was, therefore, amended for the second time. The widow Shrimati Sheela Devi, two sons and three daughters of Sudershan Kumar are thus now the six petitioners in the present (second) amended petition dated January 11, 1972.
( 4 ) THE petition is opposed by respondents 1 to 4 as also Kishan Lal respondent No. 6 and the Private Limited Company, respondent No. 8. Hails Raj, respondent No. 5 has supported the petitioners.
( 5 ) ACCORDING to the petition, in the year 1938, Ishar Dass, father of the deceased petitioner Sudershan Kumar, started wine business in the name of esplanade Bar and Restaurant at Banarsi Krishna Mansion, Chandni Chowk; Delhi which was a business of the Joint Hindu Family. It was continued under the name of "messrs Ishar Dass Kalra and Sons". This business continued to be owned by the Joint Hindu Family of which Ishar Dass and his three sons, namely, the deceased petitioner and respondents 5 and 6 were members. The business was being carried on under L-4 licence for retail sale of foreign liquor in restaurant. On June 2, 1946, Ishar Dass died suddenly. All rights, title and interest in this business, according to the petitioners, thereupon devolved jointly on the three sons of the deceased. The liquor licence which was the property of the Hindu Undivided Family, it is stated, continued in the same name through Kishan Lal, respondent No. 6 as a legal representative. In order to obtain continuance of the licence the petitioners state that Kishan Lal, in pursuance of a family arrangement, made an application to the Deputy Commissioner, Delhi, on June 7, 1946 as Managing Proprietor of Ishar Dass Kalra and Sons with a view to continue the business. On March 14, 1947, a partnership deed was also executed between them in respect of the business effective from June 3, 1946, the day next after the death of their father Ishar Dass. In 1950, respondent No. 5, the eldest of the three brothers, by mutual arrangement between the brothers, left the business of Esplanade Bar and Restaurant as he took a country
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