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High Court Of Madhya Pradesh
G. P. Singh and M. L. Malik, JJ.
STATE OF MADHYA PRADESH - Appellant
Versus
SUNDER LAL JAISWAL - Respondents
First Appeal 36 Of 1972
Decided On : 12/16/1975
Leave to deliver interrogatories was granted on 29th July 1971. No affidavit answering interrogatories or taking objections to them was filed by the defendant State. Thereafter, application was made for an order requiring the State to answer the interrogatories. This application was allowed on 12th August 1971 and the State was ordered to answer the interrogatories. Inspite of this order, no affidavit in reply was filed by the State. The plaintiff then applied on 15th November 1971 under O. 11, rule 21, praying that the defence of the State be struck off. At the time of hearing of this application, the Government Pleader was unable to state any satisfactory reason for not answering the Interrogatories.
Held: It was wilful default, and the defence was rightly struck off. [Para 3]
(2) Excise Act, 1915 (MP) - S. 68 - applicability of-suit for damages for breach of contract-section not applicable.
(3) Words & phrases-phrase 'anything done or alleged to have been done in pursuance of the Act-does not include breach of contract entered into under the Act.
The special limitation of six months prescribed by section 68 relates to suits "in respect of anything done or alleged to have been done in pursuance of this Act". The excise licences to vend country liquor in retail were no doubt granted to the plaintiffs under the Excise Act and the rules made thereunder. But the plaintiffs do not complain of any act of the State done or omitted to be done in pursuance of the Act. Their grievance is of non-supply of liquor in contravention of the terms of the contracts incorporated in the licences. The suit filed by the plaintiffs are thus for recovery of damages of breach of contract and not for anything done or alleged to have been done in .pursuance of the Excise Act. The language of section 68 is inappropriate for embracing a suit for brench of contract. (1975) 1 SCC 828 relied on. [Para 4]
(4) Land Revenue Code, 1959 (M P) – S. 257 - exclusion of jurisdiction of civil Courts -should not be readily inferred-jurisdiction of revenue Courts- should be strictly construed.
(5) Jurisdiction-of revenue and civil Courts-construction of provisions.
It is settled principle of law that the exclusion of jurisdiction of civil Courts is not to be readily inferred and such exclusion must either the explicitly expressed or clearly implied. As a necessary corrolary of this principle, provisions excluding jurisdiction of civil Courts and provisions conferring jurisdiction on authorities and tribunals other than civil Courts are strictly construed. [Para 8]
(6) Land Revenue Code, 1959 (MP) - S. 257(h) - scope of-what suits barred.
Words 'any claim' in clause (h) have a limited meaning. The bar of jurisdiction enacted in section 257(h) does not exclude claims against the State Government for adjudication that no arrears were due or that the arrears due were less than the amount claimed by the State.
The words "any claim against the State Government connected with or arising out of the collection of land revenue or the recovery of any sum which is recoverable as land revenue" as they occur in clause (h) of section 257 relate to a claim for compensation or damages on account of loss suffered by a person in the process of collection of land revenue or the recovery of any sum which is recoverable as land revenue. [Para 8]
(7) Land Revenue Code, 1959 (MP) - S. 150 - object of-provides only an alternative remedy-is no bar to regular civil suit.
The object of section 150 of the Code is to provide an alternative remedy before the Sub-Divisional Officer and to lay down conditions for its enforcement and the section is not designed to bar the normal jurisdiction of civil Courts. [Para 8]
(8) Land Revenue Code, 1959 (MP) - Ss. 257 (h) & 150 - suit for damages of breach of contract and adjustment of amount against arrears of land revenue-not barred.
Neither section 150 nor section 257 of the Code prevents a plaintiff in adjusting the amount of arrears of licence fee against the compensation payable to him for breach of contract by the Government and in suing for the balance amount of compensation. By giving adjustment in the plaint of the arrears due, the plaintiffs admit the claim of the State to that extent. The civil Court trying the suit is not to adjudicate upon the arrears of licence fee because that is admitted by the parties. The Court only determines the amount of compensation payable to the plaintiff for breach of contract and if the amount of compensation is more than the amount due to the State on account of licence fee, a decree for the balance is passed in favour of the plaintiff. A claim of this nature cannot be adjudicated upon by any revenue Officer. 1975 MPLJ SN 135 overruled. [Para 9]
(9) Contract-interpretation of-licensee bound to lift minimum quantity of liquor from Government warehouse-State Government bound to supply minimum quantity-such term implied.
(10) Excise Rules-General Licence Conditions-Form C. S., 2 - Cls. 1-A 2-D - are terms of a contract-State Government bound to supply minimum quantity of liquor.
The licence amounts to a contract. The obligation upon the licensee to purchase minimum quantity of liquor as specified in the licence and in default to pay compensation is not a condition for payment of duty on liquor or excise duty and such condition is valid. The obligation which is laid upon the licensee cannot be performed unless there is a corresponding obligation upon the State to supply liquor at least upto the minimum quantity to the licensee. Such an obligation must be inferred as a matter of necessary implication from the terms and conditions of the licence. (1975) 2 SCC 633, (1970) 2 SCC 467 & (1865) 1 Q.B. 173 relied on. [Para 12]
(11) Excise Rules-General Licence Conditions – Cl. 1 - closure of warehouse-not for reasons mentioned in the clause-State may be liable to pay compensation. [Para 13]
(12) Excise Rules-General Licence Conditions-Rule 11-supply can be stopped only after the Collector passes an order under clause (4) of Rule 11. [Para 14]
( 1 ) THIS judgment shall also govern the disposal of First Appeals Nos. 31, 32, 33, 34 and 35 all of 1972. All these appeals have been preferred by the State of madhya Pradesh and they arise out of six suits filed against the State by six excise contractors for damages for non-supply of country liquor.
( 2 ) THE plaintiffs in these suits were granted licences for the retail sale of country liquor under the supply system for shops in Balaghat District for the year 1967-68. The grant of licences was preceded by auction and the plaintiffs were the successful bidders as a result of which they received the licences. The plaintiffs were to pay the licence fee mentioned in the licences. The plaintiffs were to receive supply of liquor from the Government Warehouse on payment of price at issue rates mentioned in the licences and they were required to sell the same at the selling rates also mentioned in the licences. The case of the plaintiffs was that because of shortage of liquor in the warehouse, they could not get adequate supplies and they had to close their shops for a number of days causing loss in business. All the plaintiffs except the plaintiff in Civil Suit no. 2-B of 1970 (F-A No. 35 of 1972) had default in payment of licence fee. The unpaid amounts of the licence fee were adjusted, against the compensation claimed by the plaintiffs in these suits and decrees were claimed for the balance amounts of compensation In Civil Suit No. 2-B of 1970 (F-A. No. 35 of 1972)there was no question of adjustment of any part of thelicence fee as the entire amount of fee had been paid to the Government and the relief in the suit was for recovery of the whole of the compensation claimed by the plaintiff. All these suits were consolidated and decided by a common judgment by the Additional district Judge, Chhindwara. It would be convenient first to take up the common questions involved in these cases and then to deal with them separately with reference to their special facts.
( 3 ) THE first question that has been argued by the learned Government Advocate is that the Additional District Judge was in error in striking off the defence of the State in five suits. Except in Civil Suit No. 2-B of 1970 (F. A. No. 35 of 1972)the defence of the State was struck off in all the suits by order of the Additional district Judge passed on 15th November 1971 for failure to answer interrogatories. Leave to deliver interrogatories under Order 11, Rule 1 of the code of Civil Procedure was granted in these five suits on 29th July 1971. No. affidavit answering the interrogatories or taking objections to them was filed by the State. Thereafter, applications were made under Order 11, Rule 11, for an order requiring the State to answer the interrogatories. These applications were allowed on 12th August 1971 and the State was ordered to answer the interrogatories. In spite of this order, no affidavit in reply was filed by the state. The plaintiffs then applied on 15th November 1971 under Order 11, Rule 21 praying that the defence of the State be struck off. At the time of hearing of this application, the Additional Government pleader who appeared for the State was unable to state any satisfactory reason for not answering the interrogatories. He also did not apply for grant of further time to answer the interrogatories. The Additional District Judge held that there was gross negligence on the part of the State in not answering the interrogatories. He, therefore, ordered that the defence in the five suits be struck off. The learned government Advocate has submitted before us that there was no wilful default on the part of the State in its failure to answer the interrogatories. Reliance has been placed on Jawand Singh v. Krishna Kumar, AIR 1950 Nag 8 which lays down that defence should not be struck off under Order 11, Rule 21 unless the default is wilful. In our opinion, the argument cannot be accepted. The learned government Advocate has not been able to expl
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