NAGPUR. SECOND APPEAL No. 233 of 2009 · Bombay High Court

This is an appeal by the State who has suffered a decree for payment of compensation in a sum of Rs.92,320-00 with interest at the rate

of six per cent per annum, which is confirmed with a minor modification, namely reducing the decretal amount to Rs.83,225-00 with a liability of interest.

Heard learned AGP Mr. J.B.Jaiswal for the appellants.

The point, which is strenuously argued by learned AGP Mr. Jaiswal, is Ground No.4, which reads as follows:- Whether the learned first (cid:28) 4. appellate court was right in 2 holding that the suit was not hit by the provisions of section 146 of Bombay Prohibition Act, 1949 particularly when the suit was filed for the Act/duty of the appellant empowered to exercise power and to perform function under the Bombay Prohibition Act, 1949?(cid:29)

Action of the Authority, i.e., State, to be in good faith is the crux of the matter. Good faith has to be, and was a question of fact, which has to be so pleaded in the findings and proved in the trial.

Admittedly, the suit has proceeded without leading any evidence by the State. Thus, the Trial Court was left with no option than to judge the plaintiff(cid:25) s evidence without traverse.

It is not shown that plaintiff(cid:25) s witnesses were screened through searching cross- examination and something very adverse to plaintiff and favourable to the defendants-State was elicited and such material is disregarded by the Courts below.

In the background aforesaid, i.e., plaintiff(cid:25) s evidence having gone uncontroverted, failure of the State to elicited any useful material and and failure of the State to prove its (cid:28) good faith(cid:29) , the Second Appeal is devoid of any merit. 3

Though various Substantial Questions of Law have been formulated and tendered, only Substantial Question of Law pressed in service is Ground No.4, and that too is seen not involved.

In the circumstances, appeal has no merit, and is dismissed. Judge |Hedau| 4