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CASE NO.: Appeal (civil)  4564 of 2006

PETITIONER: Commissioner Excise & Anr.                                       

RESPONDENT: Manoj Ali & Anr.                                                         

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No. 13157 of 2006] W I T H

CIVIL APPEAL NOS. 4566,4568 & 4567 OF 2006 [Arising out of SLP (Civil) Nos.13240, 13329 & 13729 of 2006]

S.B. SINHA, J :  

Leave granted.

Wholesale and retail  licences for Indian Made Foreign Liquor (for  short, ’IMFL’) and Beer for the District of Bikaner for the year 2004-05  were given to one Rampal Rajkishan.  It had its wholesale and retail godown  near Old Cold Storage, Tulsi Circle, Bikaner.  The said licensee submitted a  plan of the premises to be used as a wholesale godown.  It came to an end on  31.03.2005.  With a view to grant retail and wholesale licences both for  country liquor and IMFL, tenders were invited by Appellants herein.   Respondent was found to be the highest bidder.  His tender was accepted.   Licences were granted to him.  He proposed to occupy the same premises  which had been taken on rent by the erstwhile licensee.  Before  commencement of his business in terms of the said licences, he submitted  the same plan of the premises for carrying out his business.  Indisputably,  the plans submitted by Rampal Rajkishan and Respondent were identical.  An Excise Inspector conducted a purported inspection of the wholesale and  retails godown of Rampal Rajkishan on expiry of the period of licence.  He  purportedly has shown in his report that no stock of liquor was available.

It has, however, not been disputed that although the erstwhile licensee  was under a statutory obligation in terms of Rule 22 to make a declaration as  to whether any stock was held by him, as on 31.03.2005, the same was not  complied with.  A provisional licence was issued to Respondent.  He took  delivery of some IMFL products also. A permanent licence, however, was  granted on 27.04.2005.  In the meanwhile, a purported raid was conducted in  the premises.  From one of the rooms a large number of bottles of different  sizes were found.  They were seized.  On the premise that the room in  question was in possession of Respondent herein, a criminal proceeding was  initiated against him.  A show cause notice was also issued on 27.04.2005 as  to why his licences should not be cancelled.  Indisputably,  inspection was  carried out both on 31.03.2005 and 11.04.2005 in the absence of Respondent  or his employees.  Curiously, the Inspector who purported to have carried  out the inspection of the godown of the erstwhile licensee himself  pointed  out that unauthorized excisable articles were to be found in a room.  In the  cause shown by Respondent in response to the show cause notice issued in  that behalf, a stand was taken by him that the bottles of liquor recovered  from the said room had been in  possession of the erstwhile licensee.  He had  appointed a Chowkidar for the said purpose.  It was categorically stated in

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his reply :                

"4.     That when the said Godown was taken for rent by  the Applicant a room where Ex contractor had kept  English Liquor and Beer, was not given in the  possession of the Applicant.  The Applicant had no  direct or indirect concern with this liquor and the  Beer.

5.      That the Ex. contractor had left with the keys of  the Godown keeping us in dark without the  knowledge of the Department of Excise.  Despite  our efforts he was not available as the Ex.  Contractor being from out of Rajasthan State (from  State of Haryana) could not be contacted.  The  Department of Excise Bikaner falsely proceeded  against me in order to suppress its fault, as the  remaining stock of foreign liquor and beer of Ex  contractor should have been under rule taken  possession of at 11.00 P.M. on 31.3.2005."

A further show cause notice was issued on 13.05.2005 as to why his  licence for wholesale trade of IMFL and Beer and for the trade of country  liquor should also not be cancelled in view of the conditions No. 9.2 and 9.3  of the country liquor licence and condition no.17 of the IMFL licence.  

He replied to the said show cause notice on 28.05.2005 raising  similar contentions.   

The Commissioner of Excise directed cancellation of Respondent’s  licence holding that as indisputably a large number of bottles of IMFL and  Beer, which neither contained the hologram, nor any maximum retail price  mentioned on the labels,  were recovered from a room which was within the  premises shown to be in his possession, he had violated the conditions of the  licence, stating :

"\005Therefore, storage of the stock of this liquor and Beer  recovered from the Godown of Non-Applicant is  absolutely illegal and is violation of the terms of the  permit of the whole sale shops of foreign liquor.  Thus,  both the facts have not been denied by Non-Applicant  Sh. Manoj Ali that the place of recovery of the illicit  liquor was a part of the Godown sanctioned to him and it  is not disputed even that the entries of the stock  recovered were not found in his stock Register.  He is  thus liable for a thing found in the Godown sanctioned to  him and on this ground the case U/s 19/54 of Rajasthan  Excise Act read with section 58 (c) of the Act has been  registered against the Non Applicant Sh. Manoj Ali\005"

An appeal thereagainst preferred by him before the Board of Revenue,  however, was allowed, opining :

"\005When the licensee has the case that if batch No. of the  stock recovered and seized had been checked it would  have been established that recovered stock had been  lifted by the previous licensee from a Brewery/Distillery  under the permit granted by the Department.  It would be  clear from it as to what Batch Nos. were mentioned in the  Bill/Invoice issued by Distillery Brewery so that by  tallying them with the Batch No. stated on the recovered  liquor it would have been proved that the recovered  liquor had been issued to the previous licensee.  It should  have been tallied with the stock and issue Registers also.  

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If it had been checked the position would  have become  clear whether the stock had been obtained by the  previous licensee under a permit or not or whether it was  entered in the stock and issue Registers or not.  In case in  checking such entries had not been found was not the  liquor supplied to the previous licensee only that the  charge of keeping illicit liquor could have been  established against the existing licensee.  When clear and  particular statement has been made by the licensee in his  statement it was required to conduct thorough enquiry for  even departmental action under the provisions of the Act  which was not done by the Subordinate Court.  Simply  on receipt of the counter it passed the order to cancel the  license on the basis of summary proceeding which is not  just.  Registration of a crime does not mean that the guilt  has  been proved against the licensee and he should be  punished by canceling his licence.  It on the said enquiry  it had been found that it was the stock left by the  previous licensee under the permit and it is entered in his  stock register and issue register the recovered stock  remained lying from 1.4.2005 to 11.4.2005 to accomplish  certain ulterior motive because of carelessness of the  Department Officers and in order to avoid to pay the  Revenue by the previous licensee, to the extent that the  posted concerned Inspector did not inspect the Godown  during this period even though it was responsibility of the  Inspector."

The matter was remanded back to the Commissioner of Excise asking  him to pass a ’justified judgment’ keeping in view the observations made  therein and after probing all the facts and records in respect of  the case and  after giving sufficient opportunity of adduction of evidence to the licensee.   

Both the Commissioner of Excise and Respondent preferred writ  petitions before the High Court questioning the legality of the said order.  Whereas the writ petition filed by Appellants was dismissed, inter alia, on  the ground that the State had not preferred any appeal, the writ petition filed  by Respondent was allowed, holding that there was no justification for  cancellation of either of the licences and in particular the one for dealing in  country liquor.

A Division Bench of the High Court in an intra-court appeal modified  the judgment of the learned Single Judge holding the judgment of the Board  of Revenue should have been upheld in its entirety and dismiss the writ  petitions filed by both the contractor as also by the Department, directing :

"In the result, the order of the learned single Judge  is modified to the extent that quashing of the orders of  the Excise Commissioner dated 30.5.2005 and 28.6.2005  would stand but subject to enquiry followed by a fresh  order to be passed by the Excise Commissioner in  accordance with law as directed by the Board of Revenue  by its order dated 6.7.2005.  The writ petitions preferred  by the department as well as the contractor would stand  dismissed."

Special Leave Petitions were filed by both the parties before this  Court.  In view of the stand taken by both the parties that the matter should  not have been remitted to the Commissioner of Excise, this Court set aside  the said order with a request to the High Court to consider the matter afresh  on merits. The Division Bench of the High Court by reason of the impugned  judgment has upheld the judgment and order passed by the learned Single  Judge.  The Commissioner of Excise and the State are in appeal before us.

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Before the High Court the erstwhile licensee had filed an affidavit.   Affidavit had also been affirmed by the Chowkidar.  The High Court gave  an opportunity to Appellants to produce documents.

On elaborate discussions of all the contentions raised before the High  Court, the Division Bench held that Respondent was not at fault.  However,  having regard to the fact that the period of licence had expired, the direction  to forfeit the security and the license fee was held to be unsustainable and  the same was directed to be refunded to the contractor.  As regards the claim  of the contractor  for damages by way of loss of profit, it was held that the  same may be the subject-matter of separate suit for damages.    

A short question which arises for consideration before us is as to  whether in the peculiar facts and circumstances of the case, Respondent can  be said to have violated the terms and conditions of the licence granted in his  favour.  

Mr. Gopal Subramanium, the learned Additional Solicitor General  appearing on behalf of Appellants, has taken us through the entire records  and questioned almost each and every finding of the Division Bench.  It was  submitted that even assuming that the findings of the Board of Revenue and  the learned Single Judge of High Court to the effect that the bottles of IMFL  were recovered from the premises belonging to the erstwhile licensee were  correct; in view of the fact that Respondent was in possession and control of  the premises, he must be held to have violated the terms and conditions of  the licence and thus no illegality can be said to have been committed by the  Commissioner of Excise in directing cancellation of licence and  consequently forfeiture of  the amount of security.

Mr. S. Ganesh, the learned Senior Counsel appearing on behalf of   Respondent, on the other hand, contended that the High Court has proceeded  to determine the issues on concession made by the learned counsel appearing  on behalf of Appellants and they should not be permitted to resile therefrom.   According to the learned counsel, Respondent cannot be penalized for no  fault on his part and violation of the terms and conditions of the licence by  the erstwhile licensee.

Clauses 9.2, 9.3 and 22 of the licence read as under :

"9.2    If the officer issuing the permit or a higher  authority has a belief at any time that the permit is  not keeping his shop running or is not running it  properly or is directly or indirectly involved in  evasion of excise duty and other excise charges or  for any proper and sufficient reasons in that case  his permit may be cancelled.

9.3     During the period of a permit if a crime is  registered or he is convicted for the offence under  the Rajasthan Excise Act, 1950, Narcotics Drugs  and Psychotropic Substances Act, 1985 or under  the Acts mentioned in Section 34 of the Excise Act  1950 and under the section mentioned therein the  permit may be cancelled.

22.     In a case of expiry of the period of the license or  cancellation of the license due to any other reason,  the licensee shall have to communicate the  information about the remaining stocks of IMFL  and Beer and all the records, immediately to the  Excise Inspector of his area.  Entire records will  have to be deposited by him in the office of the  Excise Inspector, immediately.  Up to disposal, the  remaining stocks in balance, shall be stored as

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such place in the joint supervision of the Excise  Inspector and the previous licensee, where the  trade was being carried out, and up to the disposal,  the rent, electricity expenses and any other  surcharges etc., shall be payable to the previous  licensee himself.  The balance stock could be  transferred to the new licensee or would be  disposed off by the department through the  prescribed procedure, but the outgoing licensee  shall not be entitled to receive back the amount of  any kind of fees etc. remitted against the stock.   But the outgoing licensee will be entitled and shall  have right to the cost of the goods recovered by the  disposal and the duty inherent in the stocks."     

Section 34 of the Rajasthan Excise Act, 1950 reads as under :

"34.    Power to cancel and suspend licences.-(1)  Subject to such restrictions as the State Government may  prescribe, the authority granting any licence, permit or  pass under this Act may cancel or suspend it \026

(a)     if it is transferred or subject by the holder thereof  without the permission of the said authority; or (b)     if any duty or fee payable by the holder thereof be  not duly paid; or  

(c)     in the event of any breach by the holder of such  licence, permit or pass or by his servant or by  anyone acting on his behalf with his express or  implied permission, of any of the terms or  conditions of such licence, permit or pass; or

(d)     if the holder thereof is convicted of any offence  punishable under this Act or any other law for the  time being in force relating to revenue or of any  cognizable and non-bailable offence or any offence  punishable under the Dangerous Drugs Act, 1930  (Central Act 11 of 1930) or any law relating to  merchandise marks or of any offence punishable  under sections 482 to 489 (both inclusive) of the  Indian Penal Code; or

(e)     where a licence, permit or pass has been granted  on the application of the grantee of an exclusive  privilege under this Act, on the requisition in  writing of such grantee; or

(f)     if the conditions of the licence, permit or pass  provide for such cancellation or suspension at will.

(2)     When a licence, permit, or pass held by  any person is cancelled under sub-section (1), the  authority aforesaid may cancel any other licence, permit  or pass granted to such person under this Act or any  other law for the time being in force relating to excise,  revenue or under the Opium Act, 1878 (Central Act 1  of 1878).

(3)     The holder of a licence, permit or pass  shall not be entitled to any compensation for the  cancellation or suspension thereof under this section  nor to a refund of any fee paid or deposit made in  respect thereof."             

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Certain facts are not disputed.  The same premises which were the  subject-matter of the plans submitted by Respondent herein were being  occupied by the erstwhile licensee.  Indisputably, he had been carrying on  his business under  valid  licences granted in his favour.  A large number of  bottles of IMFL liquor were found in one of the rooms in the said tenanted  premises, which were being used by him for his retail business.  He did not  issue any declaration in terms of Rule 22 referred to hereinbefore.  No  physical verification had been made. A certificate was issued by the  Inspector, the genuineness whereof is open to question.  The High Court on  appreciation of the entire evidence had made terse comments in regard to the  conduct of the said Inspector.  The said certificate issued by him in regard to  the purported verification of the stock held by the erstwhile licensee as on  31.03.2005 is also seriously open to question.  Respondent was given a  provisional licence.  He had been given a permanent licence only on  27.04.2005.  He had paid a huge amount towards licence fee and more than  Rs. Four Crores by way of security.  Some stock was released in his favour  on 08.04.2005.  In effect and substance, he was yet to start his business.  The  raid in the premises conducted on 11.04.2005.  A show cause notice had  been issued on the premise that the subject-matter of seizure was the stock  owned and possessed by Respondent. Before the High Court, however,  Appellants had taken a different stand.  In view of the affidavits of the  partner of the erstwhile licensee as also another employee and the  Chowkidar, not only the ownership of the seized liquor was admitted, but it  was also accepted that the entire excise duty in respect of the said quality of  liquor had been paid by the former licensee.  The fact that keeping in view  the batch numbers and other particulars, the stock had been released in  favour of the erstwhile licensee is yet again not in dispute.   

One of the contentions, which has, however, been raised is that  Respondent had not informed the department that he had not been able to  obtain possession of one of the rooms which was being used by the erstwhile  licensee for vending IMFL and Beer in retail.   

Initiation of a proceeding for cancellation of a licence leads to serious  consequences.   The Commissioner of Excise is a statutory authority.  The  officers of the excise department although are duty bound to oversee strict  observance of the terms and conditions of licence as also the provisions of  the Excise Act and the rules framed thereunder by the licensee, their conduct  should be above board.  Exercise of a statutory function cannot be and  should not be arbitrary and capricious.  It may not be on whims and caprice.   The action on the part of the statutory authority, it goes without saying,  should be bona fide.             We have noticed hereinbefore that the authorities did not insist upon  the erstwhile licensee to carry out his statutory obligations in terms of Rule  22 of the Act.  We fail to understand as to how in absence of such a statutory  declaration, a purported certificate was issued by the Inspector.  The report  prepared by him was contained in an inter-departmental correspondence.   The High Court had doubted the bona fide of the Inspector in view of his  conduct, which has been brought on records.  We agree with its  observations.  The findings of the High Court are based on two affidavits,  one affirmed by Rampal on behalf of the firm M/s Rampal Rajkishan and  another by Rajkishan.  The categorical  admission made by them that the  seized stock was forming the balance stock held under their licence and they  had not delivered possession of the room to Respondent has been accepted  by the High Court. The High Court furthermore has accepted the affidavit of  Naresh Kumar, who was appointed as a watchman on behalf of the previous  licensee.  The Chowkidar has also categorically stated that his employer did  not hand over possession of the entire premises to Respondent.  An  unequivocal statement was made by him in the affidavit that the stock of the  previous licensee had still been lying in the said premises till 11.04.2005,    although an authorized departmental official should have taken over the  stock from his possession immediately after 31.03.2005.   

The notices dated 27.04.2005 and 13.05.2005  did not pertain to the

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intended cancellation of the country liquor licence.  The High Court had  noticed that on the same day i.e. 13.05.2005, the Additional Commissioner,  Rajasthan Excise, Bikaner wrote to the District Excise Officer inviting his  attention to the application of the contractor enclosing therewith the  aforementioned affidavit of Naresh Kumar.  The said letter was not  responded to by the District Excise Officer until after decision of the Board  of Revenue on 06.07.2005.   

The Division Bench itself compared the plans of both M/s Rampal  Rajkishan and Respondent.  They were  found to be identical.  It was noticed  that the plan was submitted by Respondent before he started his business.  It  was held :

"From the comparison of three site plans Schedule \026 A, B  and C, they leave no round of doubt that IMFL and beer  bottles without hologram and MRP was recovered from  that pat of the plan submitted by the respondent  contractor for approval which was formerly approved as  retail godown of IMFL and beer for the period from  17.6.2004 to 31.3.2005."

Admission made on behalf of Appellants before the High Court is also  explicit, which the Division Bench of the High  Court recorded in the  following terms :

"In pursuance of our specific query during the  course of hearing, it was clearly stated by the learned  counsel for the Excise Department that not it cannot be  disputed that the recovered stock of IMFL and beer was  authorizedly issued to the previous licensee and was part  of the same issue."

Before the High Court there was no dispute that stock recovered from  the disputed premises had been issued to the previous licensee before  31.03.2005.  Evidently, thus, it was  the balance stock that remained in its  hands which had not been surrendered or accounted for.

It is unfortunate, as has been observed not only by the Division Bench  of the High Court but also by the Board of Revenue as also the learned  Single Judge, that the Commissioner of Excise did not bestow any serious  attention to the contentions raised by Respondent, which was required to be  done. The statement of Respondent may be a self-serving statement; but  when a statement was made which was supported by sufficient evidence, it  was obligatory on the part of the authorities of the Excise Department to take  into consideration the same.  It was the solemn duty on the part of the excise  authorities of the State to undertake an exercise of verification of stock.  For  reasons best known to them,  they chose to hurry through the process of  cancellation of both the licences of  Respondent, although there has been no  violation of the terms and conditions of the licence granted to Respondent at  least in relation to the licence in respect of country liquor.   

Having regard to the materials brought on records, the Board of  Revenue, the learned Single Judge as also the Division Bench satisfied  themselves that Respondent did not receive vacant possession of that part of  the premises from which IMFL and Beer bottles without hologram and MRP  tags were recovered.  Once it was held that the room in question was in  possession of the erstwhile licensee, penal action should have been taken  against him and not against  Respondent.

As regards the purported inspection report whereupon the learned  Additional Solicitor General laid great emphasis, the High Court opined :

"Nothing has been stated by the appellants at any

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stage whether the records of previous licensee was  surrendered to authority at the expiry of period of  licences and whether stock position tallied with the  register.  It is the basic requirement under the licence that  at the close of licence the licensee shall surrender all  registers required to be maintained and the Excise  Authorities are required to verify the correctness of stock  as per register with physical  verification.  In absence of  such verification with record, the conclusion cannot be  drawn that at the close of licence the licensee has  disposed off all the supplies made to it and nothing  remained in stock.  This is firmly established from the  facts of the case that while inspector purports to have  reported stock supplied to previous licensee to be nil, yet  huge quantity of IMFL/beer bottles supplied to previous  licensee remained undisposed off and found to be lying  in the very same premises where they ought to have been  at the close of licence  until its disposal by the Excise  authorities in accordance with law.  Until verification of  balance stock with register is made, no presumption of  correctness of reports submitted by the inspectors in the  circumstances of the present case can be drawn.   Reference in this connection can  be made to clause 22 of  licence issued to previous licensee which supports the  above conclusion."

    It was further observed :

"\005Even from the admitted position, it was not possible  to have removed such a large quantity of liquor from the  place of its search until 31.03.2005 and then to bring it  back to the same place.  In ordinary course of human  behaviour also, it would not have been conduct or  removing and bringing it back because continued storing  in the same premises of balance stock was otherwise  justified under the terms of licence of previous licensee."

Analyzing  the  purported  stock report, the High Court was of the  view : "While the wholesale stock register were brought  before the Court for perusal to suggest that stock as per  the whole stock register was Nil as on 28.3.2005, but no  such attempt was even made in respect of retail licence.   The records about the retail licence were not referred to  us nor it was asserted that the retail stock register and  other record of retail licence was delivered to the Excise  Department by the previous licensee or is in their  possession and the stock position was verified.  In fact,  that cannot be in view of admitted position that stock of  IMFL/beer seized on 12.4.2005 was part of supplies  made to previous licensee authorisedly.

The report of the search party is conspicuously  silent about the fact that substantial part of IMFL seized  on 11.4.2005/12.4.2005 is manufactured out of rectified  spirit which was prohibited to be sold in the market under  the new Excise policy, 2005-2006.  Notwithstanding this  fact was brought to the notice by the contractor in his  defence, the Commissioner also did not take notice of  this fact.  Obviously, this fact explains the conduct of the  previous licensee.  On wholesale licence credit is taken  on excise duty paid on supplies received by him when the  same is remained to retail vend and excise duty becomes

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payable by the retail vendor as and when it disposed it  off.  However, on the balance stock, at the end of the  licence, he becomes liable to pay excise duty on such  balance stock.  Since stock was not transferable to new  contractor as per the new policy and no recovery of that  amount was possible and liability to pay excise duty was  to fall on the previous licensee and unless the stock left  with previous licensee are surrendered and accounted for  in terms of the licence, they continued to remain in the  same premises, where the licensee was authorized to  conduct his business.  The fact corroborate the stand  taken by the current contractor that IMFL/beer bottles  recovered from the disputed premises were part of the  supplies made to previous licensee who has left the place  without surrendering the stock and same remained stored  in the premises where from he was authorized to conduct  his trade.  The possession of such premises never came to  the new contractor could not be said to have come in  conscious possession of the liquor recovered from the  disputed premises."

     The High Court noticed the conduct of Hajja Ram, Inspector,  in the  following terms :

"\005We have also noticed from the record that Hajja Ram  was the person who is alleged to have reported on  31.3.2005.  He is the person who is called by the Deputy  Excise Superintendent to be present at the time of search  on 11.4.2005.  He is the person who is appointed mother  (sic) and he is the person who during the search instigate  about the opening of close room with shutter lock by  asserting that unauthorized excisable articles are to be  found therein are strongly suggestive of the fact that it  was in know of the Inspector that stock of previous  licence stored in the approved premises was lying  therein.  The fact that current contractor has submitted  the plan of the whole premises; which was originally  submitted by the previous licensee for approval, it is  highly probable that he got the contractor unaware about  the fact of huge quantity of IMFL and beer lying therein.   Apparently, it is not the case of the Department that the  previous licensee has ever accounted for balance  remained with him.  When the recovered stock was part  of the excisable articles issued to the previous licensee,   until the same has been accounted for by him and were  available for acquisition by others there cannot be any  presumption against the subsequent contractor.  We are  of the opinion that in absence of such link evidence  having been established that there was conscious transfer  of excisable articles in favour of subsequent licensee, he  could not have been held liable for the recovery of said  articles from the premises which were approved in favour  of the previous licensee for conduct of his business."     

A presumption in law as was urged by the learned Additional Solicitor  General could have been raised to the effect that the stock belonged to  Respondent, but in view of the materials on records, the said presumption  stood rebutted.  It may be reiterated that now it has not been disputed that  the goods were supplied to the erstwhile contractor.  He had paid the excise  duty.  Moreover, he categorically admitted that the excise articles were in his  possession.  The said goods had not been transferred to the new licensee.  Appellants conceded before the High Court in regard thereto. Once  Appellants admit the aforementioned facts, it was not necessary even for

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Respondent herein to prove his innocence by adducing any further evidence.   Things admitted need not be proved.   

Existence of Mens Rea in a case of this nature would be an essential  ingredient for forming an opinion that licence validly held by a person  should be cancelled.  Forfeiture of the amount of security should not be held  to be a logical conclusion on cancellation of licence.   Licences should not  be directed to be cancelled only because there has been some technical  violation on the part of the licensee.   

The fact that Respondent for all intent and purport had not been  allowed to carry on any business is of some significance.  Even why the  directions of the Board of Revenue were not carried out and the  Commissioner of Excise filed a writ petition is beyond comprehension.   

Although the State of Rajasthan is before us now , it did not join the  Commissioner of Excise before the High Court.  It became wiser only after  dismissal of the writ petitions.  In any view of the matter, the doctrine of  proportionality should have been invoked.  Appellants should not, in our  considered opinion, be permitted to forfeit a huge sum of money legitimately  belonging to Respondent on a technical plea that he should have informed  them that he had not obtained the possession of a part of the tenanted  premises.

The affidavit might have been filed before the Division Bench of the  High Court, but no objection thereto was taken.  In fact, as noticed  hereinbefore, Appellants themselves urged before this Court that the entire  matter on merits should be determined by the High Court.  Having lost  before the Board of Revenue, the learned Single Judge and the Division  Bench, Appellants cannot now ask us to interfere with the findings of facts.   Even otherwise, there is no justifiable reason to do so.  

We have been taken through the judgments of the Board of Revenue,   learned Single Judge as also the Division Bench and other materials and we  are satisfied that the findings arrived at by them are correct.  We have,  therefore, no hesitation in coming to the conclusion that there is no merit in  these appeals.  They are dismissed accordingly.   

Appellants hereby are directed to refund the entire amount of security  within a period of  four weeks from today, failing which the same shall carry  interest @ 12% p.a. till actual payment.  Appellants must also pay and bear  the cost of Respondent in these appeals which is quantified at Rs.1,00,000/-  (Rupees one lakh only).