Oral Order:
1. The second appeal by the defendant No.1 is preferred against the judgment and decree dated 28.03.2007 passed by the learned Civil Judge, Karimganj in Title Appeal No.29/2005 reversing the judgment and decree dated 21.03.2004 passed by the learned Civil Judge (Jr. Divn.) No.1, Karimganj in Title Suit No.212/2000, whereby the title suit filed by the two plaintiffs was dismissed.
2. The second appeal was admitted to be heard by an order dated 09.05.2007 on the following substantial question of law:
(1) Whether on the admitted failure of the plaintiffs to give notice as per Order 1, Rule 8(2) of the CPC, the learned Appellate Court could have reversed the findings of the Trial court and held the suit to be maintainable ?
(2) Whether a title suit of the instant nature could be maintained in law in view of specific bar and exclusion of the jurisdiction of the Civil Courts as stipulated under Section 76 of the Assam Excise Act, 1910 ?
3. After some hearing had progressed to-day, Mr. M. Nath, learned counsel for the appellant submits that one more substantial question of law may be framed. According to him, a substantial question of law as to whether the impugned judgment of reversal passed by the learned lower Appellate Court in shifting the burden of proof to the defendant regarding compliance of provisions under the Assam Excise Act, 1910 (for short, the Excise Act ) and the Rules framed there-under in absence of any allegation of non-compliance of requirements is sustainable in law arises in this case. Like yesterday, to-day also there is no representation on behalf of the respondents.
4. Accordingly, after hearing Mr. Nath, the following substantial question of law is framed:
(3) Whether the impugned judgment of reversal passed by the learned lower Appellate Court in shifting the burden of proof to the defendant regarding compliance of provisions under the Assam Excise Act, 1910 and the Rules framed there-under in absence of any allegation of non-compliance of requirements is sustainable in law?
5. As the learned counsel for the respondents is not present to take notice of this additional substantial question of law, Mr. Nath submits that hearing can go on as he is ready with the case.
6. The plaintiffs filed the representative suit for themselves and on behalf of residents of different areas under Badarpur Police Station along with a petition seeking leave to institute the suit in representative capacity. In the suit, prayer was made for declaration that the licence issued to the defendant No.1 by defendant Nos.2 and 3 to run Foreign Liquor Bar in Holding No.36(a) of Ward No.1, Station Road, Badarpur is illegal, void and inoperative and for permanent injunction restraining the defendants from running the said Foreign Liquor Bar. Subsequently, by way of amendment, prayer for permanent mandatory injunction directing the defendant No.1 to close the Bar in question was made.
7. The pleaded case in the plaint is that husband of the defendant No.1 already has a Foreign Liquor Shop in Badarpur within about 30 meters from Holding No.36(a) and two members of the same family cannot obtain licence to run one liquor shop each and therefore, defendant No.1 falsely declared herself as a divorcee to obtain the licence, also suppressing that there are religious institutions within 50 meters from the said Holding as well as some educational institutions not far from the said Holding. Inadvertently, Badarpur Town Committee had issued No Objection Certificate in the name of the defendant No.1 to obtain licence on 23.05.2000. But by a letter dated 07.07.2000, the Chairman, Badarpur Town Committee requested the Deputy Commissioner, Karimganj to treat the No Objection Certificate issued by the Vice Chairman on 23.05.2000 as cancelled.
8. The defendant Nos.2 to 4 filed a written statement taking various legal pleas, such as the plaintiffs have no locus standi to file the suit, no cause of action, etc. It is pleaded that the defendant No.1 is a resident of Badarpur Town and proprietor of Hotel Plaza-cum-Restaurant and under Rule 276 of the Assam Excise Rules, 1945 (for short, the Excise Rules ) any holder of a hotel licence may apply for maintaining a Bar in connection with the hotel to the Collector and on the basis thereof, sanction was accorded on 27.07.2000 for an IMFL On licence and the licence was issued on 01.08.2000 by the Superintendent of Excise, Karimganj. The Deputy Commissioner, Karimganj recommended the case of the defendant No.1 for grant of a licence on 17.06.2000 and only thereafter the Chairman had informed the Deputy Commissioner, Karimganj to treat the No Objection Certificate as cancelled. It is also pleaded that the Bar is situated at a reasonable distance from educational and religious institutions and will not affect them in any manner. The Bar, which was opened after August, 2000, had been running smoothly in terms of the conditions of the licence and the same is also renewed from time to time and once again Badarpur Town Committee had issued No Objection Certificate stating that there is no objection in running of the existing business by the defendant No.1.
9. The defendant No.1 also filed a written statement denying the allegations made in the plaint that she had filed the application for grant of licence as a divorcee. The written statement filed by her is more or less similar to the one filed by State defendant Nos.2 to 4. It is averred that the Foreign Liquor On Shop was run continuously and peacefully from 09.09.2000 and the Government is getting good revenue there-from. It is pleaded that suit was filed concocting baseless allegations.
10. During trial, plaintiff examined 3(three) witnesses and the defendant examined 1(one) witness.
11. On the basis of the pleadings, the learned Trial Court framed 4 (four) issues which are as follows:
1. Whether there is any cause of action for the suit ?
2. Whether the suit is maintainable in the present form and manner ?
3. Whether the licence issued by the Government through the defendant Nos.2 and 3 to the defendant No.1 to run Foreign Liquor Bar is illegal, void and inoperative ?
4. Whether the plaintiffs are entitled to the decree as prayed for ?
12. The learned Trial Court first took up Issue No.2 regarding maintainability of the suit.
13. The learned Trial Court took note of the provisions regarding issuance of licence contained in Section 28 of the Excise Act and Rules 183,189 and 191 of the Excise Rules. The learned Trial Court held that suit is hit by Section 76 of the Excise Act. It was held that suit was, even otherwise, premature as enquiry was awaited. It was also observed that none of the public had been examined though the suit was filed in a representative capacity in support of the plaintiffs case. Observing that provisions of the Excise Act and the Excise Rules had been followed, it was opined that there was no merit in the suit and accordingly, Issue No.2 was decided in negative. Consequent upon such finding recorded in Issue No.2, Issue Nos.1, 3 and 4 were decided against the plaintiffs and the suit was dismissed.
14. The learned lower Appellate Court held that suit was neither barred under Section 76 of the Excise Act, nor premature. The arguments advanced on behalf of the defendants that requirement of Order 1 Rule 8(2) of CPC was not complied with by publication of a notice was negated by the learned lower Appellate Court by holding that notice had been published in newspaper and the same had been duly served. It was observed that complaint was lodged prior to issuance of the licence and it is the burden of the defendants to establish that all requirements were complied with and in absence of any material on record to demonstrate the same, grant of licence was held to be void ab initio.
15. Mr. Nath has submitted that notice was not published in terms of Order 1 Rule 8(2) of CPC and the plaintiffs did not bring on record the paper publication. The learned lower Appellate Court merely observed that the newspaper had been shown to the learned lower Appellate Court. According to him, the copy of the newspaper available with the records would go to show that one news item was published without any case number. It is submitted by him that provisions contained in Order 1 Rule 8(2) of CPC is mandatory and the plaintiffs, who projected themselves as representatives of the public to espouse public cause must take steps to issue a notice and in the instant case, materials on record would disclose that though there is an office copy in the record of the case in the form of a notice, the same was evidently not published by the plaintiffs. He has submitted that the suit was filed with an oblique motive and the plaintiff No.2 was also not a resident of the locality as revealed from his cross-examination. The purpose of notice, according to him, is to enable persons interested to get themselves impleaded as parties to the suit either to support the cause or oppose it and for non-compliance of Order 1 Rule 8(2) of CPC, suit was liable to be dismissed. He has also submitted that Section 76 bars entertainment of the suit by the Civil Court as held by the learned Trial Court, and therefore, decision of the learned lower Appellate Court is liable to be interfered with. He has further submitted that there is no finding of the learned lower Appellate Court that the defendant misled the authorities by describing herself to be a divorcee. There is also no finding that the liquor shop is not at a reasonable distance of religious or educational institutions and evidence on record discloses there are three other liquor shops including the one belonging to the husband of defendant No.1 as plaintiffs themselves have averred. There is no bar to grant two licences to the members of the same family and the defendant No.1 had taken the licence of IMFL On for the hotel in terms of Rule 176 of the Excise Rules. Mr. Nath has submitted that since the date of opening of the Bar, the IMFL On licence had been renewed regularly and even during the pendency of this appeal, in view of the interim order passed by this Court staying the operation of the impugned judgment and decree of the learned lower appellate Court, appellant is continuing her business of operating IMFL On Bar. There was no pleading whatsoever that the authorities did not follow the procedure enjoined by the Excise Act and the Excise Rules before issuing the licence to the defendant No.1 and in absence of even a faint plea in this regard, finding of the learned lower Appellate Court that defendants failed to prove that procedure prescribed was followed is wholly uncalled for. Accordingly, he submits that the appeal deserves to be allowed.
16. I have considered the submission of the learned counsel for the appellant/defendant No.1 and have perused the materials on record.
17. Section 76 of the Excise Act reads as follows:
76. Bar of certain suits.- No suit shall lie against the Government or against any Excise officer in respect of anything done or alleged to have been done, or in good faith purporting to be done, in pursuance of this Act or any other law for the time being in force relating to the excise revenue.
18. Section 76 bars certain suits and the jurisdiction of the Civil Court, per se, is not ousted. All that it says is that no suit would lie against the Government or against any Excise officer in respect of anything done or in good faith purported to be done in pursuance of Excise Act or of any other law for the time being in force relating to the Excise revenue. This section gives protection to the Government or Excise officers for anything done in pursuance of Excise Act or any other relevant law in force relating to excise revenue. For being protected under this section two conditions must be fulfilled, namely, the act must have been done in good faith, and it must have been in relation to excise revenue. It is to be noted that in the written statement(s) filed by the defendant No.1 and the defendant Nos.2 to 4, no plea was taken that the jurisdiction of the Civil Court is ousted. As there is no express ouster of jurisdiction of Civil Court in Section 76 of the Excise Act and as no plea of ouster of jurisdiction was taken by the defendants, I am of the considered opinion that the learned lower Appellate Court was justified in reversing the finding recorded by the learned Trial Court that the suit is hit by Section 76 of the Excise Act. Substantial question of law No.2 is answered in terms of the above.
19. So far as substantial question of law No.1 is concerned, it appears from the order dated 08.09.2000 that the learned Trial Court granted leave under Order 1 Rule 8(2) of CPC. Order 1 Rule 8 (2) reads as follows:
8. One person may sue or defend on behalf of all in same interest.-
(2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
20. Perusal of the order dated 08.12.2000 of the learned Trial Court would go to show that the plaintiffs had filed a petition No.2245/27 for paper publication regarding the suit as the suit was a representative suit and such prayer was also allowed by the learned Trial Court and the plaintiff was directed to take necessary steps. It appears that on 04.10.2001 a notice was prepared under Order 1 Rule 8(2) of CPC and the office copy of the said notice is available at page 173 of File B. In the said notice, name of the parties were reflected along with the suit number. The notice indicated the grounds and purpose for which the suit was filed and it notified the inhabitants of villages mentioned therein that they may apply to the Court on or before 27.11.2001 to be made party to the suit. Evidently, the notice was not published by the plaintiffs. But it appears that there was a news item in a newspaper without the suit number regarding filing of the suit in connection with grant of the liquor licence in favour of the defendant No.1.
21. Order 1 Rule 8(2) of CPC mandates that the Court shall, in every case where a permission or direction is given under Sub- rule (1), give notice at the plaintiff s expense of the institution of the suit to all persons so interested in the manner as considered appropriate by the Court so as to enable any person on whose behalf or for whose benefit, a suit is instituted, or defended under Sub-rule (1), may apply to the Court to be made a party to such suit. A decree passed in a suit in a representative capacity, under Rule 6 of Order 8 is binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended and therefore, giving of a notice of the institution of the suit to all persons so interested is mandatory. The plaintiff who files a suit in a representative capacity is required to take necessary steps for giving notice as directed and in the instant case, the plaintiff had filed an application for permitting them to publish the notice in a newspaper which was also granted by the learned Trial Court and a notice was, accordingly, drawn up under Order 1 Rule 8(2) CPC. A duty is cast on the Court when it allows a plaintiff to present a suit in representative character to ensure that the notice is duly issued. The Court, which had accorded permission to file a representative suit, is duty bound to see that procedure enjoined by Order 1 Rule 8 (2) of CPC is complied with. If no notice is issued, the Court may pass such order as it may consider just and expedient and failure to publish the notice as directed, may merit dismissal of the suit.
22. Before the learned Trial Court, it appears that the defendants did not agitate this issue and the suit was proceeded with and disposed of on merit. If the fact of non-issuance of the notice was brought to the notice of the Court, may be, the plaintiffs would have rectified the defect. That apart, the plaintiff filed the suit for themselves also. Having regard to the facts and circumstances of the case, I am not inclined to dismiss the suit on the ground that no notice was issued in terms of Order 1 Rule 8(2) of CPC. Substantial question of law No.1 is answered accordingly.
23. Materials on record disclose that apart from the liquor shop of the husband of the appellant, there are two other liquor shops in the vicinity. Rule 191 is relevant for the purpose of this case and the same is quoted here-in-below:
191. The opening, shifting, amalgamation and closure of any licensed premises shall be done by the District Collector with the previous sanction of the State Government. Such opening, shifting, amalgamation and closure shall not be granted (a) unless it has been satisfactorily established by local enquiry that the proposed action is necessary in the interest of public; and (b) until any objections, which may have been filed on the subject have been considered by the District Collector.
Objections from local bodies and from the following persons will be considered:-
(i) In the case of Corporation, Municipality or Town Committee areas. The Corporation, Municipality or Town Committee concerned to which such proposal relates;
(ii) In the case of areas not situated in a Corporation, Municipality or Town Committee.-
(a) The Gaon Panchayat concerned.
(b) The owners or occupiers of the neighbourhood of the premises involved.
(c) Managers of the tea estates or factories in which more than 100 persons are employed;
Provided that the whole or any part of the jurisdiction of the Gaon Panchayat or land owned or occupied by the tea estate or factory is situated within 5 Kms. of the site of the shop or any of the shops concerned.
24. A perusal of the said Rule goes to show, amongst others, that opening of any licensed premises shall be done by the District Collector with the previous sanction of the State Government. In the plaint, though the plaintiffs proclaimed to be representatives of the local populace, it is not stated that they had lodged any objection to the authorities concerned. There is no averment that any complaint was lodged by any other person. There is also no allegation that procedures to be adopted as required under the Excise Act and the Excise Rules were not followed, save and except saying that the plaintiffs had obtained the licence by disclosing herself to be a divorcee and that there are religious and educational institutions not far from the holding where the liquor Bar is located. The learned lower Appellate Court did not record any finding that while granting the licence, any statutory provision was violated, except stating that objection was raised prior to issuance of licence and therefore, the licence was issued in violation of Rule 191 of Excise Rules. There was no allegation in the plaint that no local enquiry was made or the objection(s) received had not been considered by the Collector. In fact, District Collector had received a No Objection Certificate from the Town Committee before he had forwarded the proposal to the Government. In absence of any such allegation in the plaint, or rather in absence of any plea taken regarding non-compliance of procedural formalities, the learned lower Appellate Court committed manifest error of law in holding that objections were raised and that the defendant failed to discharge their burden that the licence was given in accordance with law. It was for the plaintiffs to prove their case and when the plaintiffs had not even made any allegation, I am of the considered opinion that learned lower Appellate Court was not correct in holding that licence issued to the defendant No.1 was void ab initio. Substantial question of law No.3 is, accordingly, answered in favour of the appellant.
25. In that view of the matter, this appeal deserves to be allowed and accordingly, the impugned judgment of the learned lower Appellate Court is set aside. Decree passed by the learned Trial Court dismissing the suit is affirmed, not on the grounds on which the same was dismissed but for the reasons hereinabove ascribed. No cost.
26. Registry will send back records.