STATE OF PUNJAB AND ORS. versus M/S SURINDER KUMAR AND CO. AND ORS.

Citation: [1996] SUPP. 9 S.C.R. 963 · Decided: 11-12-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

STATE OF PUNJAB AND ORS. 
v. 
MIS SURINDER KUMAR AND CO. AND ORS. 
DECEMBER 11, 1996 
[K. RAMASWAMY AND G.T. NANA VAT!, JJ.] 
Code of Civil Procedure, 1908 : Section JI - Res Judicata. 
Punjab Excise Act, 1914 : 
Respondent granted licence for sale of Indian made foreign liq-
u01-Licence cancelled for i"egularities in conducting the business-Writ 
challenging cancellation-Minister for Excise and Taxation impleaded alleg-
ing ma/a fides against him-High Court without going into merits directed the 
respondent to avail altemative remedy of appeal under Excise Act-On appeal 
A 
B 
c 
the Appellate Authority upheld that respondents had committed illegalities D 
but 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 •lay by 
the High Court, to be period of substantive suspension as a measure of 
penaJ(JSecond batch of writ petitions filed against the order of Appellate 
Authori(JThe High Court set aside the order and remitted the case to the .E 
Excise and Taxation Commissioner to decide the matter afresh on ·the 
grounds. of ma/a fides. alleged against the Minister,--Appea/ pref med before 
Supreme Court-fl eld in tJie second batch of writ petitions ihe Minister was 
not made a party-The High Court could not have gone into the question of 
ma/a fides--ln the first round of litigation when the High Court had not gone 
into the question of ma/a fides; though the Minister was impleaded as a party, 
f 
· it had remitted.the matter for disposal on merits-Obviously, the words "inight 
and ought" used in Section II of the C.P.C. stand in the way and, therefore, 
it operates a res judicata for raising the same question subsequently-The 
High Court could not have gone into that question, much less giving direction 
to the Appellate Authority to go into that question. 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16976-78 
of 1996. 
From the Judgment and Order dated 29.5.96 of the Punjab & 
Haryana High Court in C.W.P. No. 18522-24 of 1995. 
H 
963 
964 
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R. 
A 
P.P. Rao and Manoj Swamp for the Appellants. 
Rathin Das and Gaurav Banerjee for the Respondents. 
The following Order of the Court was delivered : 
B 
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, 
C 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, 
D 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. 
E 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 of the appeal since 
F the respondents had alternative remedy of an appeal provided under the 
Punjab Excise Act, 1914 (for short the 'Act'). The order reads as under : 
G 
H 
Concededly the respondent Minister against whom allegations of 
mala 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 petitioner 
may apply for stay of the operation of impugned order before the 
appellate authority and the same shall be considered by the appel-
late authority. The appellate authority is further directed to decide 
-
.. ... 
STAIB v. SURINDERKR.ANDCO. 
965 
the appeal within 1

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