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1994 Supreme(Gau) 84
GAUHATI HIGH COURT
J.N.Sarma, J.
Anil Saikia : Ajoy Kumar Talukdar -Appellant
Versus
Assam Board of Revenue, Gauhati -Respondent
Civil Rule Nos. 814 and 839 of 1994
Decided On : 06-05-1994
N.M.Lahiri, P.J.Saikia, D.R.Gogoi, D.N.Choudhary, C.Barua, A.K.Phukan, A.K.Bhattacharyya, S.K.Kejriwal
The court's finding that the Board's finding regarding the petitioners' financial suitability was perverse and based on no evidence is a significant legal point because it highlights the importance of the Board's duty to consider all of the evidence before making a decision.
Headnote:
EXCISE - SETTLEMENT OF LIQUOR SHOP - FINANCIAL SUITABILITY OF TENDERER - INTERPRETATION OF RULES - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The petitioners, Anil Saikia and Rana Borgohain, challenged the order of the Assam Board of Revenue setting aside the settlement of the Borsaikia Country Spirit Shop No. 2 with them and settling the same with the respondents, Santanu Kumar Gogoi and Haren Tasha, for the remaining period of the term 1993-96. The Board found that the petitioners' financial position was not free from doubt, and that they had not passed the HSLC examination, which was a requirement for preferential treatment under the Excise Rules.
Finding of the Court:
The court held that the Board's finding regarding the petitioners' financial suitability was perverse and based on no evidence. The court also held that the requirement of passing the HSLC examination for preferential treatment under the Excise Rules did not apply to the petitioners, as they had passed the examination as private candidates.
Issues: 1. Whether the Board's finding regarding the petitioners' financial suitability was perverse and based on no evidence? 2. Whether the requirement of passing the HSLC examination for preferential treatment under the Excise Rules applied to the petitioners?
Ratio Decidendi: 1. The court held that the Board's finding regarding the petitioners' financial suitability was perverse and based on no evidence because: a. The Board found that the petitioners' payment of the license fee was not free from doubt, but the court found that there was sufficient evidence to support the petitioners' claim that they had paid the license fee from their own funds. b. The Board found that the petitioners had not explained what they had done with the balance of nearly Rs.60,000/- after taking over the shop, but the court held that the law did not require the petitioners to provide such an explanation. c. The Board found that the petitioners had sold 400 shares of Assam Tea Co. Ltd. to SK Agarwal, but the court found that the transfer of shares was valid even though Agarwal's name did not appear in the company's register. 2. The court held that the requirement of passing the HSLC examination for preferential treatment under the Excise Rules did not apply to the petitioners because they had passed the examination as private candidates.
Final Decision: The court allowed the petitioners' writ petition and quashed the Board's order setting aside the settlement of the liquor shop with the petitioners. The court also dismissed the respondents' writ petition challenging the Board's dismissal of their appeal.
"In view of the above, we allow the appeal, set aside the order of settlement on Borsaikia C.S. Shop No.2 made by Deputy Commissioner Dibrugarh in favour of Sarvasri Anil Saikia and Rana Borgohain for the term 1993-94 (it should be 1993-96) and settle the same with Sarvasri Santanu Kumar Gogoi and Haren Tasha for the remaining period of the term." 2. These Shri Santanu Kumar Gogoi and Shri Haren Tasha are the respondent Nos. 3 and 4 in the writ application and Shri Anil Saikia and Rana Borgohain are the petitioners in writ application.
3. I have heard Shri NM Lahiri, learned Advocate for the petitioner and Shri DN Choudhury, learned Advocate for the respondents 3 and 4.
4. Regarding the second ground it may be stated that Annexure M is the photo copy of the certificate of the HSLC examination issued by the Deputy Secretary, Board of Secondary Education, Assam, Guwahati and this shows that Shri Anil Saikia as a private candidate passed the HSLC examination in 1988 and was placed in the Third Division and this aspect of the matter was also found in favour of the petitioner in paragraph 4.2 of the judgment.
5. Rule 208 (4) of the Assam Excise Rules provides as follows : "Settlement of a shop shall have to be made by selection from amongst the tenderers for that particular shop, and the tenderers so selected shall also be financially sound to run the shops."
6. Rule 206 (2) of the Rules provides as follows :
"The tenders must be in such from and contain such particulars as may be prescribed by the State Government. Tenders not containing all the particulars shall be liable to be rejected."
7. The State Government has prescribed statutory form of tender in which column 11 is one of the columns in the tender form which reads as whether the tenderer/tenderers is/are capable of financing his/their business himself/themselves. Give details of source, cash in hand, bank balance, security, assests etc. This matter came up for consideration before a Full Bench of this Court in Rajkumar Dilip Narayan Singha vs. The Assam Board of Revenue & others reported in ILR32 Gauhati (1980)99 where this Court pointed out as follows:
“.........There are to general tests which are to be taken note of by the settling authority. First is the personal interest of the tenderer which is the most important as envisaged under different rules. The second is the question of suitability test in which the financial backing in managing the shop corns up for consideration."
8. The Full Bench also approved the earlier case of Tulashi Dutta vs. State of Assam in CR No. 24 of 1978 of Gauhati High Court quoting an observations from that case enunciating the law as follows :
"If
