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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: M/S. SURINDER KUMAR & CO. & ORS.

DATE OF JUDGMENT:       11/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      These appeals  by special leave arise from the judgment and order  of the  Division Bench  of the Punjab and Haryana High Court,  dated May  29, 1996 in CWP Nos. 18522-18524/95. The respondents  had the  leasehold right to vend the Indian made liquor at Ludhiana. They had located shops at 44 places to sell  under L-2  and L-14  licence of Indian made foreign liquor in  retail. They  had the  licence for  the financial year April  1, 1995 to March 31, 1996. The Excise Department officials had  noted, on inspection, certain illegalities or irregularities committed  in  conducting  the  business  and selling in retail the Indian made foreign liquor. On account thereof, by proceedings dated August 21, 1995, the competent officer cancelled  the licence  granted to  the respondents. Feeling aggrieved by the cancellation order, the respondents filed CWP  Nos.12543, 12546  and  12547/1995.  Therein,  the respondents impleaded  Shamsher Singh  Dullo,  Minister  for Excise and Taxation, as one of the respondents alleging mala fides  in   the  cancellation  of  licence  granted  to  the respondents. The  Division Bench  of the High Court by order dated September  15, 1995  allowed  the  Writ  Petition  and remitted the matter to the Appellate Authority to decide the appeal within  15 days  from the  date of the presentation f the appeal  since the  respondents had alternative remedy of an appeal  provided under  the Punjab  Excise Act, 1914 (for short the ‘Act’). The order reads as under:      "Concededly the respondent Minister      against whom  allegations  of  male      fide  are  alleged  is  no  more  a      Minister. The petitioner has got an      alternative   remedy    of   appeal      against  the  impugned  order,  The      petitioner  is   relegated  to  the      alternative remedy. The respondents      undertake   not    to   raise   any      objection  with   respect  to   the      limitation for filing appeal if the      same is  filed within one week. The

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    petitioner may  apply for  stay  of      the petitioner  may apply  for stay      of the  operation of impugned order      before the  appellate authority and      the same shall be considered by the      appellate authority.  The appellate      authority is  further  directed  to      decide the  appeal within  15  days      from the  date of  presentation  of      the appeal.  In view  of this,  the      writ petition is disposed of."      On filing  the appeal,  the Appellate  Authority, while upholding that  the respondents  had committed  illegalities and irregularities  in conducting  the business in violation of the  provisions of the Act and the rules made thereunder, felt it  expedient instead  of cancelling  the  licence,  to treat the  period from  cancellation  of  licence  till  the filing of  the writ  petitions and grant of stay by the High Court, to  be period  of substantive suspension as a measure of penalty.  Feeling aggrieved  by the  order passed  by the Appellate Authority,  the present  writ petitions came to be filed. The  Division Bench of the High Court in the impugned order set  aside the  order and  remitted the  case  to  the Excise and Taxation Commissioner to decide the matter on the grounds of mala fides alleged against the Minister afresh in the light  of the  averments made  and  the  contentions  on either side. Thus, these appeals by special leave.      It is  seen that  in the  batch of  the Writ Petitions, admittedly,  the   Minister  was   made  co-respondent   and allegations of  mala fides  came to be made against him. The High Court did not decide that questions. On the other hand, a reading  of the  order would  indicate that the High Court instead directed  the respondents  to avail  the alternative remedy  of   appeal  before   the  Appellate  Authority  and Appellate Authority  was directed  to go  into the merits of the matter  and decide  it according to law. It is seen that Appellate Authority  did go  in the  merits, found  that the respondents  committed  ilegalities  and  irregularities  in conducting the  business of  vending the Indian made foreign liquor. However,  in the matter of imposition of penalty the Appellate  Authority  had  felt  it  expedient,  instead  of cancelling the  licence, to  confine the  period from August 22, 1995 till September 22, 1995, the date on which the High Court granted  interim suspension  of the  operation of  the cancellation order  as "suspended". It could be seen that in the second batch of Writ Petitions the Minister was not made a party.  It is  the settled  legal position  that the  High Court could  not have  been gone  in the  mala fides  and it could not decide the matter on merit on the question of mala fides. In such a situation can the Division Bench direct the Appellate Authority  to go  into the question of mala fides. It is  seen that  in the  first round of litigation when the High Court  had not  gone into  the question  of mala fides, though the  Minister  was  impleaded  as  a  party,  it  had remitted the  matter for  disposal on merits. Obviously, the words "might  and ought"  used in  Section 11  of the C.P.C. stand in the way and, therefore, it operates as res judicata for raising the same question in the present writ petitions. The High  Court could not have gone into that question, much less giving  direction to  the Appellate  Authority, namely, the Excise  and  Taxation  Commissioner,  to  go  into  that question.      Shri Rathin  Das, learned  counsel for the respondents, contends that  the respondents had not committed any serious irregularities or illegalities warranting even suspension of

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the licence  for  the  period  mentioned  by  the  Appellate Authority. Unfortunately,  that question  was not considered by the  Division Bench  and it  had not  given  any  finding thereon. No  appeals are  filed by  the  respondents.  Under those circumstances,  we cannot go into that question. Thus, we hold that the view taken by the Division Bench is clearly unsustainable.      The  appeals  are  accordingly  allowed  and  the  Writ Petitions stand dismissed. No costs.