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1989 Supreme(Gau) 55
GAUHATI HIGH COURT
S.Haque, S.K.Homchaudhuri, JJ.
Sajal Dutta -Appellant
Versus
State of Assam -Respondent
Civil Rule No. 088 of 1987
Decided On : 31-03-1989
B.K.Goswami, R.L.Yadav, K.C.Das, P.K.Kalita
The court has jurisdiction to try issues of fact and law in a petition under Article 226 of the Constitution of India, but may decline to do so if the dispute should not appropriately be tried in a writ petition.
Headnote:
EXCISE - SETTLEMENT OF COUNTRY SPIRIT SHOP - ELIGIBILITY - STUDENT - FINANCIAL SOUNDNESS - CONSIDERATION OF EVIDENCE - JUDICIAL REVIEW - ARTICLE 226 OF THE CONSTITUTION OF INDIA - SCOPE AND EXTENT.
Fact of the Case:
Petitioner challenged the appellate order of the Assam Board of Revenue, which set aside the settlement of a country spirit shop in his favor and settled it in favor of respondent No. 4. The petitioner contended that the Board's finding that he was a student at the time of settlement was erroneous and that he had not been given an opportunity to rebut the allegation. He also argued that the Board had not considered the evidence of his financial soundness.
Finding of the Court:
The court found that the Board had not considered the fresh evidence adduced by the petitioner to rebut the allegation that he was a student. It also held that the petitioner was not a student of any institution at the time of filing the tender and, as such, he was eligible for getting the settlement of the shop. The court further found that there was material before the settling authority to be satisfied that the petitioner was financially sound at the time of granting settlement of the shop.
Issues: 1. Whether the Board erred in finding that the petitioner was a student at the time of settlement? 2. Whether the Board erred in not considering the evidence of the petitioner's financial soundness? 3. Whether the court has jurisdiction to try issues of fact and law in a petition under Article 226 of the Constitution of India?
Ratio Decidendi: 1. The court held that the Board erred in finding that the petitioner was a student at the time of settlement because the petitioner had submitted a mark sheet clearly indicating that he was a private candidate in the H.S.L.C. Examination and had ceased to be a student in the year 1980. 2. The court held that the Board erred in not considering the evidence of the petitioner's financial soundness because the petitioner had submitted a pass book of his Savings Bank Account showing that he had sufficient funds at the time of settlement. 3. The court held that it has jurisdiction to try issues of fact and law in a petition under Article 226 of the Constitution of India, but may decline to do so if the dispute should not appropriately be tried in a writ petition.
Final Decision: The court set aside the appellate order of the Board and restored the settlement order passed by the Deputy Commissioner in favor of the petitioner.
This is a 3rd approach by the petitioner in this Court invoking jurisdiction under Article 226 of the Constitution of India in respect of settlement of Silchar Country Spirit 'Shop No. 1 for the period from 1987-1990 expiring on 31.3.90. On the basis of selection by the Advisory Committee, the Deputy Commissioner, Cachar the Settling Authoriy, by order dated 20.3.87 settled the Silchar C, S. shop No. 1 with the petitioner for the period from 1.5.87 to 31.3.90.
2. The respondent No. 4 who was the settlement holder of the C. S. Shop of the previous term also filed the tender. Being unsuccessful to get the settlement of the shop, respondent No. 4, preferred an appeal under the learned Assam Board of Revenue, Gauhati and the appeal was registered as" Case No.. 42(E)(O) /87. On the prayer for interim stay of the settlement 'order pending disposal of the appeal the learned Board by the exparte order dated 25.4.87 stayed the settlement order and directed that the shop should be run departmentally by official vendor and that none of the beneficiaries arising out of the decision of the Advisory Committee shall be considered for engagement of official vendor. The petitioner impugned the exparte stay order dated 25.4.87 passed by the learned Board of Revenue in this Court in Civil Rule No. 447/87. The respondent No. 4 also filed Caveat in this Court. This Court after hearing both the parties by the order dated 25.5.87 quashed the order of stay dt. 2\4.87 and remanded the case to the Board of Revenue with a direction to dispose of the said stay application within a specified period. By order dated 17.6.87, the Board directed that the liquor shop in question might be , run departmentally. The learned Board of Revenue after hearing the parties by appellate judgment and order dated 31.8.87 set aside the order of settlement passed in favour of the petitioner and settled the shop in question in favour of the respondent No.4. Being aggrieved, the petitioner impugned the said appellate order in Civil Rule No.849/87. The respondent No. 4 filed Caveat in this Court. This Court after hearing the parties set aside the appellate judgment at. 31.8.87 and remanded the appeal for disposal in accordance with law. In the said writ petition, petitioner's grievance was that on the date of hearing some documents, namely, a letter of Inspector of School, Silchar dated 1.8.87 was filed in which it was stated that the petitioner appeared in the last H.S.L.C. Examination of 1987, but could not pass the said examination and that the learned Board passed the appellate judgment placing reliance on the said, letter. The petitioner did not have any opportunity to controvert the allegations that he was a student at the time of settlement of the shop, although in fact he was not a r student of any school/institution at the material time. This Court in the judgment passed in Civil Rule No.849/87 specifically, directed that the appeal should be disposed of preferably within 15 days after giving fresh opportunity to the petitioner to adduce fresh evidence. After remand, the petitioner submitted the mark-sheet he secured in the H.S.L.C. Examination of 1987 wherein it was clearly stated that the petitioner appeared as a private candidate. Marksheet was submitted with an application supported by an affidavit wherein it was specifically stated that while the petitioner was a student of Class-VIII, he could not continue his studies, and gave up studies in the school in 1980 and that in the year, 1987 he appeared in H. S. L. C. Examination as a private candidate.
3. After remand the appeal was again heard on 28.9.87. On the date of hearing, an application was filed on behalf of the petitioner stating that due to flood in the district of Cachar, petitioner was unable to move and submit the Bank Pass Book in support of his financial soundness on the date of settlement of the shop and prayed for adjournment but the appeal was heard by the learned Board and judgm
