P L D 1954 Lahore 188 (PLP)

SHABIR AHMAD, J.‑This Letters Patent Appeal and Letters Patent Appeal No. 19 of 1952 will be disposed of together as some questions of law and fact are common between them. Letters Patent Appeal No. 16 of 1952 relates to what in the sequel will be described as the opium case, while Letters Patent Appeal No. 19 of 1952 deals with what will be termed as the liquor case. The facts out of which these appeals arise may be briefly stated. After the Partition of British India, the Excise Department of this Province acted on a scheme under which temporary licences were to be issued for sale of opium and liquor. The licences were temporary in the sense that they were to remain in force for a period of less than one year, though the normal period for such licences was, under the relevant rules, one year expiring with the 31st of March. In pursuance of this scheme, temporary licences were ordered to issue for sale of opium at eight shops in Lahore to Mian Akbar Hussain. Licence fee, which was described as fixed fee, was paid by Mian Akbar Hussain for some time, but afterwards he fell into arrears at which a demand for Rs. 73,916 was made from him and on the 17th of March 1949, he instituted a suit for a declaration that nothing was due from him to the Punjab Government in respect of any fee for licence to sell excise opium. In this suit permanent injunction restraining the Government from recovering Rs. 73,916 from him was also prayed for as a consequential relief. This suit was heard by Mr. Muhammad Din, Civil Judge Ist Class, Lahore, who, on the pleadings of the parties, framed the following issues :‑

1. Whether the plaintiff was granted a licence for selling opium and what were the terms and conditions of that licence with regard to payment of fees by him ?

2. In case the above issue is found for the defendant, had the officer issuing the licence no jurisdiction to issue it or are the terms thereof invalid, ultra vires or illegal so as to affect the payment of the fees ?

3. What amount on account of fees is due from the plaintiff' to the defendant in addition to the payment already made ?

4. Relief. By his order dated the 21st of December 1950, the learned trial judge deciding issues Nos. I and 2 against the plaintiff, dismissed the suit. On appeal, Mr. Muhammad Aslam Khan, the then Senior Civil judge with enhanced appellate powers at Lahore, by his order dated the 11th of August 1951, held that Agha Muhammad Yusuf, who purported to act as the Excise Commis sioner, Punjab, was not competent to do so at the relevant date, and as, therefore, the licences, if any, issued under the scheme approved by that officer were invalid, the demand of the Provincial Government was unsustainable. The result was that the appeal was accepted and the plaintiff was granted the decree prayed for. Against that decision, the Provincial Government instituted a second appeal in this Court (Regular Second Appeal No. 377 of 1951)=(P L D 1952 Lab. 430). This appeal was heard by a learned judge in Chambers who, holding, inter alia, that Civil Courts had no jurisdiction to hear the suit instituted by Mian Akbar Hussain, accepted the appeal and dismissed the suit. Against this decision of the learned judge in Chambers Mian Akbar Hussain, after obtaining a certificate from him, has presented Letters Patent Appeal No. 16 of 1952 under clause 10 of the Letters Patent of this Court. In the liquor case Akbar Khan started selling country liquor at some shops in Lahore by virtue of temporary licences issued to him under the scheme approved of by Agha Muhammad Yusuf. In February 1949, two demand notes were sent by the Excise Department to the Collector, Lahore, for realization from Akbar Khan as arrears of land revenue, a sum of Rs. 82,000 due from him as licence fee for the period ending on 31st of March 1948, and a sum of Rs. 61,439‑8‑0 for the period ending on the 30th of September 1948. These demands were not met and on the 5th May 1949 Akbar Khan instituted a suit against the Provincial Government for a permanent injunction restraining the defendant from realizing or taking any steps for the realization, by attachment, arrest or otherwise, of the moneys mentioned in the above two demands on the ground that nothing was due to the defendant from the plaintiff. This suit was heard by Mr. Sher Muhammad, Civil Judge 1st Class, Lahore, who, on the pleadings of the parties, framed the following issues:‑

1. Did the plaintiff take possession of the eight liquor shops under a special temporary licence ?

2. Was the Excise Commissioner empowered in law to frame a scheme of special temporary licences ?

3. For how long did the plaintiff work as a licences under the conditions of the said temporary licence ?

4. Were the full quota for each shop supplied to the plaintiff for the period ending 31st of March 1948 ?

5. Was the plaintiff working as a commission agent in pursuance of an oral agreement arrived at between him and the Excise Department under the conditions mentioned in the plaint ?

6. What amount is due from the plaintiff as licence fee for each shop or as charges due to Government in case it is held that he worked as a commission agent ?

7. Relief. By his order dated the 12th of December 1950, Mr. Sher Muhammad, Civil judge, passed a decree for a perpetual injunction against the Provincial Government restraining them from enforcing the demand notes without first accounting for the price of the liquor taken from the plaintiff's possession and determining the amount of compensation due to the plaintiff for short supply of liquor for the period ending Mst of March 1948. Against this decision Akbar Khan went up in appeal. This appeal also was heard by Mr. Muhammad Aslam Khan, the then Senior Civil Judge with enhanced appellate powers at Lahore, and was, like the appeal in the opium case, decided on the 11th of August 1951. In this case also Mr. Muhammad Aslam Khan held that on the relevant date Agha Muhammad Yusuf was not competent to order the issue of temporary licences and as such licences issued under the orders of that officer were invalid, no demand from Akbar Khan was valid. In view of this finding the plaintiff's suit was decreed. Against this decision the Provincial Government instituted an appeal in this Court (Regular Second Appeal No. 378 of 1951). This appeal and Regular Second Appeal No. 377 of 1951 were beard by the same learned single judge of this Court who disposed them by the same judgment. This appeal also was accepted by the learned judge in Chambers against whose decision Letters Patent Appeal No. 19 of 1952 has been instituted after the case was certified by the learned judge in Chambers to be a fit one for appeal under clause 10 of the Letters Patent of this Court. Mr. Yaqub Ali Khan and Mr. Akhlaq Hussain, the former of whom appeared for the appellants, in Letters Patent Appeal No. 16 of 1952 and the latter for the appellants in Letters Patent Appeal No. 19 of 1952, contended that the finding of the learned judge in Chambers that the appellants sold opium and liquor respectively on the basis of licences issued to them and not merely as commission agents of the Excise Department was not justified by the evidence on the record. The trial Courts found this matter against the plaintiff-appellants in both the cases and these findings were affirmed by the lower appellate Court. When the matter came up before the learned judge in Chambers, the finding on this question of fact was agitated before him and he, after going thoroughly into the evidence, affirmed the finding of the Courts below on this point. The learned judge in Chambers has very exhaustively and carefully dealt with all relevant material relating to this question and it is not possible to differ from his finding on this point. The learned counsel for both the appellants next contended that the scheme approved of by Agha Muhammad Yusuf Khan could have no binding force as that officer had not been validly appointed an Excise Commissioner on the date on which he brought the scheme into operation. The Opium Act 1878 makes no mention of an Excise Commissioner, but the rules made under that Act by the Provincial Government do so. Before the 15th December 1945, the relevant rules which are contained in Chapter 21 of the Punjab Excise Manual Volume II, gave certain powers to the Financial Commissioner, but by Punjab Government Notification No. 7142‑EX dated the 15th of December 1945, the words "Excise Commissioner" were sub stituted for the words "Financial Commissioner" wherever they occurred in the rules which in the Punjab Excise Manual are designated as the Punjab Opium Orders. Section 9 of the Punjab Excise Act, 1914 which deals with the appointment of an Excise Commissioner, reads as follows :‑ "The Provincial Government may by notification appoint an Excise Commissioner, and, subject to such conditions and restrictions as it may deem fit, may invest him with all or any of the powers conferred on the Financial Commissioner by this Act". By virtue of section 2 (36) of the Punjab General Clauses Act, the term notification occurring in the section means a notification under proper authority in the Gazette. Section 2 (21) of the Punjab General Clauses Act states that the term Gazette is to mean the Punjab Gazette. It appears from the document on the record that shortly before the Partition Agha Muhammad Yusuf was Deputy Excise and Taxation Commissioner at Jullundur and by Notification No. 20007‑E & T dated the 24th September 1947, his transfer was ordered from Jullundur to Lahore in the same capacity, it being further ordered that the transfer was to have effect from the 7th August 1947. It would appear that from the 10th August 1947 Agha Muhammad Yusuf started exercising the powers of the Excise Commissioner, though there was no notification in existence conferring those powers on him. On the 24th February 1949 Notification No, 1251.‑G‑49/21035 which was issued over the signatures of Mr. Fida Hassan, Chief Secretary to the Government West Punjab (as this province was than called) said that Agha Muhammad Yusuf had been appointed Excise and Taxation Commissioner, West Punjab, from the 10th August 1947, vice Mr. L. P. Addison and that Agha Muhammad Yusuf was to be Excise Commissioner in addition to being Deputy Excise and Taxation Commissioner. This notifi cation was published in the Gazette dated 4th March 1949. On the 29th of March 1949, Notification No. 26604 was issued to the effect that on the 25th May 1948 Agha Muhammad Yusuf had been relieved of the duties of Deputy‑Excise and Taxation Commis sioner by Ch. Muhammad Afzal, who had assumed charge of that office. It may be mentioned that the assumption by Ch. Muhammad Afzal of the office of Deputy Excise and Taxation Commissioner, Lahore Circle, was gazetted by Notification No. 1360‑E & T dated the 7th May 1951. The learned judge in Chambers has held that Agha Muhammad Yusuf having been appointed Excise and Taxation Commissioner on the 10th August 1947, the appointment could not be considered to be ineffective before the 4th March 1949, simply because the notification with regard to it was not issued till the latter date. For coming to this conclusion the learned judge held that the language of section 9 of the Punjab Excise Act was no more than directory, and that as the section did not say that the appointment would be invalid in the absence of a notification, the absence of notification was immaterial. After carefully considering the language of section 9 of the Punjab Excise Act 1914, I have arrived at the conclusion that the notification dated the 24th February 1949, with regard to the appointment of Agha Muhammad Yusuf as Excise Commissioner could have effect only from the date of its publication and not from any earlier date. Mr. C. M. Sharif, Assistant Advocate‑General, Punjab, who appeared for the Provincial Government in both the appeals, produced a copy of an order issued by the Governor of the Punjab on the 25th July 1947 whereby Agha Muhammad Yusuf was to take over charge as Excise and Taxation Commissioner, Punjab, on the 10th August 1947, from Mr. L. P. Addison, who was granted leave. This order was not notified in the Official Gazette and as no evidence was led about it at the trial, it is not open to the respondent to rely on that order which for aught one knows, may have been set aside by another. But even assuming that the order relied on by Mr. C. M. Sharif was passed by the Governor of the Punjab and was not altered by any subsequent order and that its non -publication in the Official Gazette was due to a justifiable omission, I do not think that any material difference would result. Section 9 of the Excise Act cannot but mean (bat the appointment of an Excise Commissioner is to be effective from the date of the publication of a notification in the Official Gazette in that behalf and if the order of appointment was made on a date earlier than the one on which the notification was gazetted, the appointment will be deemed to be from the date of the notification and not from that of the order. Mr. C. M. Sharif invoking provisions with regard to other appointments argued that the date of an appointment as mentioned in the Official Gazette was to be taken to be the date on which the order of appointment is to be deemed to have been passed and delay in the publication of the notification in the Official Gazette did not postpone the appointment. In my view this argument has no force. Notifications in the Official Gazette are intended for the publication of orders of Government so that members of the public, ‑if so minded, may become acquainted with them and it is but rarely that the law enjoins the notification of an appointment in the gazette. In cases, however, where an appointment is required by law to be made by means of a notification it is only by that means and no other that the appointment can be validly made. No doubt, such an appointment will be made by an order passed by the competent authority on the relevant file, but the appointment will become effective only from the date of the notification. For some reason or other, the Legislature which passed the Punjab Excise Act 1914 considered a notification about the appointment of an Excise Commissioner to be the only "mode by which the appointment could be made and I am of the view that the appointment could not be made by any other means. As laid down by their Lordships of the Privy Council in Nazir Ahmad v. King Emperor (A I R 1936 P C 253.) if the law requires that a thing be done in a certain manner, it must be done in that manner or not at all. In view of what I have said above, I cannot accept the contention that the mere non‑publication of the notification of the appointment of Agha Muhammad Yusuf as Excise Commissioner would be immaterial if, in fact, that appointment was made before he, exercising the powers of an Excise and Taxation Commissioner, Punjab, passed the scheme of issuing temporary licences. In this connection I might notice the argument of Mr. C. M. Sharif that as section 9 of the Punjab Excise Act, 1914, said that the Provincial Government may by notification appoint an Excise Commissioner, the issue of the notification was left to the discretion of the Provincial Government. It is, however, obvious that what the section means is that the Provincial Government may or may not appoint an Excise Commissioner, but if it does appoint one, it must do so by a notification and no other means would be valid in law. Before dealing with the effect of the finding that Agha Muhammad Yusuf was appointed an Excise Commissioner long after he enforced the scheme of temporary licences, I may dispose of an argument addressed by Mr. C. M. Sharif, Assistant Advocate‑General, Punjab, with regard to jurisdiction of Civil Courts to entertain the suit in the opium case. This argument was raised before the learned Single judge also, who held that the Civil Courts had jurisdiction to hear the liquor case but none to hear the opium case. It was contended that the juris diction of the Civil Courts to try the suit in the opium case was barred by section 23 of the Opium Act read with clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act. Section 23 of the Opium Act, 1878, and the relevant part of section 158 of the Punjab Land Revenue Act, 1887, are reproduced below:‑ Section

23. Any arrear of any fee or duty imposed under this Act or any rule made hereunder, and any arrear due from any farmer of opium revenue, may be recovered from the person primarily liable to pay the same to the Provincial Government or from his surety (if any) as if it were an arrear of land revenue'. Section 158.‑`Except as otherwise provided by this Act‑‑‑ (1) a Civil Court shall not have jurisdiction in any matter which the Provincial Government or a Revenue Officer is empowered by this Act to dispose of, or take cognizance of the manner in which the Provincial Government or any Revenue Officer exercises any powers vested in it or him by or under this Act ; and in particular‑ (2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely‑ (xiv) any claim connected with, or arising out of the collection by the Government, or the enforcement by the Government of any process for the recovery of land revenue, or any sum recoverable as an arrear of land revenue". Read together the above provisions, would lead to the conclusion that if any arrear of fee or duty imposed under the Opium Act or any rules made thereunder is due it may be recovered as an arrear of land revenue and jurisdiction of Civil Courts to entertain a suit lodged to have the demand declared inoperative will be barred. It is, however, obvious that before the jurisdiction of Civil Courts is barred with regard to a demand made under section 23 of the Opium Act, it must be established that the arrear of fee or duty sought to be recovered was imposable under the Act or a rule made thereunder, but if it is established that the duty or fee did not fall within the four corners of the Opium Act. 1878, the jurisdiction of Civil Courts cannot be taken away, It is well settled that ouster of jurisdiction of Civil Courts, which are Courts of general jurisdiction, is not to be readily inferred and those Courts will be presumed to have jurisdiction unless it has been taken away by clear words or necessary implication. If, therefore, the plaintiff in the opium` case can show that the fee or duty which the Government want to recover from him as an arrear of land revenue under section 23i of the Opium Act was not chargeable under the Act or the rules made thereunder, the jurisdiction of Civil Courts to grant him appropriate relief is not taken away. The proposition that if a thing is not in conformity with an Act or a Rule it cannot be said to have been done in exercise of powers given by that Act or Rule is so well‑settled that it needs no authority to support it, but if an authority were needed it can be found in the decision of the judicial Committee of the Privy Council in Emperor v. Vimlabai Deshpande (A I R 1946 P C 123,). In the above case it was argued before the Privy Council that section 16 of the Defence of India Act, 1939, which provided that "no order made in exercise of any power conferred by or under this Act shall be called in question in any Court", made orders passed under rule 129 of the Defence of India Rules immune from scrutiny by Courts, but the argument was repelled by saying that if the impugned order was invalid it was not made in exercise of a power conferred by the Act. With regard to the ouster of the jurisdiction of Civil Courts, the learned Assistant Advocate‑General adopted another line for which he invoked section 42 of the Punjab Excise Act 1914 and rule 21.66 of Punjab Excise Manual Volume II. He contended that if the temporary licences under consideration suffered from any defect by reason of Agha Muhammad Yusuf not being properly appointed an Excise Commissioner under section 9 of the Punjab Excise Act, the defect, irregularity or omission was merely of a technical character and could not invalidate the licence. Section 42 of the Punjab Excise Act is in the following terms :‑ "(1) No license, permit or pass granted under this Act shall be deemed to be invalid by reason merely of any technical defect, irregularity or omission in the license or in any pro ceedings taken prior to the grant thereof. (2) The decision of the Financial Commissioner as to what is a technical defect, irregularity or omission shall be final". The Opium Act contains no section corresponding to section 42 of the Punjab Excise Act. but the same provision is made in the Punjab Opium Orders by rule 21 66, which is couched in language practically identical with that used in section

42. The argument was that as the Financial Commissioner was competent under subsection (2) of section 42 of the Punjab Excise Act and under sub‑rule (2) of rule 21'66 to decide what was a technical defect, irregularity or omission and as the decision of that officer on this matter was final, no Civil Court could declare the licences under consideration invalid. This argument overlooks the fact that the section as well as the order lay down that the licences dealt with should have been granted under the Act. It is obvious that if a licence contravenes the provisions of the Punjab Excise Act or the rules made thereunder, it cannot be considered to be a licence issued under that Act for the purpose of its forty‑second section. With regard to a license for sale of opium the position will not alter simply because the Opium Act does not contain a provision similar to section 42 of the Punjab Excise Act, because rule 21.66 which was relied upon is in all material respects identical with section 42 of the Punjab Excise Act. If, therefore, the plaintiffs in the two suits, who are now the appellants, succeed in showing that the licenses could not be considered to have been issued under the Punjab Excise Act, 1914, or the Opium Act, 1878, as the case may be, or under rules made under the relevant Act, the section and the rule relied upon by Mr. C. M. Sharif will be of no avail to the Provincial Government. In the excise case the fact that the notification about this appointment as Excise. Commissioner was not published till long after he approved of the scheme for issue of licenses which are the subject of dispute clearly makes section 42 of the Punjab Excise Act, 1914, inapplicable, as the defect affecting as it did the jurisdiction of Agha Muhammad Yusaf to exercise the powers of an Excise Commissioner cannot be held to be a mere technical defect, irregularity or omission in the licence or in any proceedings taken prior to the grant thereof so as to bring the case within section 42 of the Act. I would hold, therefore, that the jurisdiction of the Civil Courts to hear the suit in the liquor case was not taken away by section 42 of the Punjab Excise Act, 1914. It has already been indicated that the Opium Act, 1878, does not make any mention of an officer called the Excise Commissioner, but the rules made under the Act do so. It is hardly open to question that the intention of the rule‑making authority was that the officer who was exercising the powers of an Excise Commissioner in the province under the Punjab Excise Act, 1914, was to exercise the powers given to that officer by the rules made under the Opium Act. It would, therefore appear that the officer who could exercise the powers of an Excise Commissioner for the purposes of the Opium Act, 1878, is the person who was appointed to exercise those powers under the Punjab Excise Act, 1914. It can scarcely be doubted that before he exercises the powers given to the Excise Commissioner under the opium Act, 1878, the officer must be validly appointed for the purposes of the Punjab Excise Act, 1914, and if the appointment suffers from any defect, he will not be legally competent to exercise the powers of the Excise Commissioner under the Opium Act. I have already held that the appointment of Agha Muhammad Yusaf as an Excise Commissioner could be deemed to have been made at no earlier date than the 4th of March 1949, on which date a notification about his appointment as an Excise Commissioner was published in the Official Gazette and it follows that till the 4th of March 1949 he could not have exercised the powers given to an Excise Commissioner by the rules made by the Provincial Government under the Opium Act, 1878. That being so, the result is that the demand from Akbar Hussain, the appellant in Letters Patent Appeal No. 19 of 1952, does not fall within section 23 of the Opium Act, 1878, and the jurisdiction of Civil Courts to give appropriate relief would not be taken away. Nor can the defect be considered to be of a formal character so as to bar the jurisdiction of the Civil Court on account of rule 21.66 of the Punjab Opium Orders as the officer who enforced the scheme under which the licenses under consideration were issued not being legally competent on the relevant date to do so his orders in the matter were entirely without jurisdiction. Having held that the jurisdiction of the Civil Courts to try the two suits was not barred, and that Agha Muhammad Yusaf, no being a validly appointed Excise Commissioner on the relevant date, could not enforce the scheme of short‑term licenses, as distinguished from the ordinary annual licences, I proceed to consider the argument of the learned Assistant Advocate‑General that even if the appointment of Agha Muhammad Yusaf, as Excise Commissioner, had no validity till the issue of the notification in 1949, the appellants were estopped from questioning their liability under the licenses. The contention was that, having accepted the short‑term licenses and derived benefit therefrom, the appellants could not turn round and say that the licences were defective and created no liability. This question was agitated on behalf of the Provincial Government before the learned judge in Chambers, who has held that the principles of estoppel debarred both the plaintiff's from taking benefit of the delay in the issue of the notification about the appointment of Agha Muhammad Yusaf as Excise Commissioner. That there can be no estoppel against a statute has been laid down by a large number of judicial tribunals of unquestion able authority, and is now a well‑settled proposition. In fact, the learned Assistant Advocate‑General stated that he had no intention of contending that estoppel could operate against a statute. His reliance was on section 117 of the Evidence Act, which lays down, inter alia, that a licencee will not be permitted to deny that his licensor had, at the time when the licence commenced, authority to grant a license. The argument was that section 117 of the Evidence Act disentitled the plaintiffs to raise the plea of lack of authority to grant licenses to them, and the fact, that the appointment of Agha Muhammad Yusaf had not been properly notified till March 1949, was not relevant. The learned judge in Chambers, while dealing with the question of estoppel expressed the view that the rule, that there is no estoppel against a statute, prevails only if the contract is in clear terms forbidden by it, and to decide whether that was the intention of the Act, its language should be construed strictly and on the side of equity. In his exhaustive discussion of the question of estoppel the learned judge in Chambers considered a number of judicial decisions, including that of their Lordships of the Privy Council in Maritime Electric Co. Ltd. v. General Dairies, Ltd. (A I R 1937 P C 114,) At page 116 of this report, their Lordships are reported to have remarked :‑ "The sections of the Public Utilities Act which are here in question are sections enacted for the benefit of a section of the public, that is, on grounds of public policy in a general sense. In such a case‑and their Lordships do not propose to express any opinion as to statutes which are not within this category‑whereas here the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it. This conclusion must follow from the circumstances that an estoppel is only a rule of evidence which under certain special circumstances can be invoked by a party to an action ; it cannot therefore avail in such a case to release the plaintiff from an obligation to obey such a statute, nor can it enable the defendant to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law. To hold, as the Supreme Court has done, that in such a case estoppel is not precluded, since, if it is admitted, the statute is not evaded, appears to their Lordships with respect to approach the problem from the wrong direction; the Court should first of all determine the nature of the obligation imposed by the statute, and then consider whether the admission of an estoppel would nullify the statutory provision". At page 117, their Lordships dealt with the same matter in the following terms :‑ "If we now turn to the authorities it must be admitted that reported cases in which the precise point now under consideration has been raised are rare. It is, however to be observed that there is not a single case in which an estoppel has been allowed in such a case to defeat a statutory obligation of an unconditional character. The text‑books have regarded the case as one closely analogous to the cases of high authority where it has been decided that a corporation could not be estopped from contending that a particular act was ultra‑vires. * * * * * * * * * * * In the above case their Lordships were dealing with an action arising under the Public Utilities Act of New Brunswick and had to consider the sections of that statute which, in their Lordships' opinion, were enacted for the benefit of the public, but the observations of their Lordships were, in my opinion, not intended to convey that if a statute were not of that description it could be ignored without any risk. This is clear from the observations at page 117 of the reports which have been reproduced above. If the direction about the issue of a notification with regard to the appointment of the Excise Commissioner were, as held by the learned judge in Chambers, merely directory in character, the delay in the issue of the notification would have been immaterial and, in my view the question of estoppel would not have arisen. But, as section 9 is mandatory in its terms, the non‑issue of the notification at the proper time cannot be ignored. A mandatory provision of a statute was not complied with, and to allow the Provincial Government for contend that the plaintiff‑appellants were estopped from questioning the authority of the officer, who, acting on behalf of the Provincial Government, granted the short‑term licences to the appellants, would be allowing an estoppel against a statute, which the law does not permit. I would, therefore, hold that the mere fact, that the officer, who, acted on behalf of the Provincial Government, was under the bona fide belief that Agha Muhammad Yusaf had the authority on the relevant date to approve of the scheme of short‑term licences, would not take away the right of the appellants to raise the plea that the licences were, by reason of the appointment of Agha Muhammad Yusaf as Excise Commissioner, not having been notified at the relevant time, not binding on them. This, however, does not mean that the appellants had no liability in the matter. It appears to me that the principles of section 65 of the Contract Act could be invoked by the Provincial Government and the Court could order the appellants to hand over to the Provincial Government the benefit which they have derived from the sale of articles which they could not have sold without a licence. I would, therefore, accept both the appeals and remand the cases for trial in the light of the remarks made above. As the two cases are very similar in character, they should be heard by the same Civil Judge. Costs incurred so far by the parties will be borne by them. RAHMAN, J.‑I agree and would only add that the judicial Committee of the Privy Council in a recent case going up from Ceylon to that Court reported as Attorney General of Ceylon v. A. D. Silva (P L D 1953 P C 58.) has laid down the principle that a public officer has not by reason of the fact that he is in the service of the Crown the right to Act for and on behalf of the Crown in all matters which concern the Crown and that the right to Act for the Crown in any particular matter must be established by reference to statute or otherwise. That was a case in which the Crown was held not bound by a contract entered into by the Principal Collector of Customs for sale of some property belonging to the Crown on the ground that that officer was not proved to have any authority on behalf of Government statutory or otherwise, in the matter. The principle would also be applicable to a case where the private party entering into a contract with a public officer could show a similar want of authority in such officer. Here the additional fact is that even Government could not have given an authority to the officer concerned, in contravention of the provisions of the statute or the rules framed thereunder. The reasoning of my learned brother receives strong support from the affirmation of this principle by a High judicial authority whose judgment may no longer be binding on this Court but whose opinion on the fundamental principles of law are nevertheless entitled to the highest respect. I therefore concur in the order that the principle of quantum meruit embodied in section 65 of the Contract Act should be invoked to assess the liability of the appellants. A. H. Case remanded.