Swapan Kumar Mondal v. State of West Bengal — 1990 DIGILAW 196 (CAL)

JUDGMENT 1. The subject matter of this writ application are the order dated 18th June, 1983 passed by the Respondent Commissioner of Excise, West Bengal and the order dated 21st December, 1984 passed by the respondent No.2 Board of Revenue, West Bengal, which are annexure 'K' and 'L' to the writ application. 2. The fact of this case in short is that the original licence of Foreign Liquor 'Off' shop carried on under the name and style of 'L. B. Mandal and Sons' stood in the name of Lal Behari Mandal. In 1928 Lal Behari took his elder son Sushil Kumar Mandal as partner and in the licence Sushil Kumar Mandal was made a joint licensee. Lal Behari Mandai died on 30th June, 1944 leaving three sons, namely, Sushil Kumar Mandal, Anil Kumar Mandal and Dr. Sunil Kumar Mandal. On the death of Lal Behari Mandal in 1944, the licence standing in the names of Lal Behari Mandal and Sushi! Kumar Mandal was settled under rule 209 of the rules framed under the Bengal Excise Act, 1909 in the joint names of Sushil Kumar Mandal and Anil Kumar Mandal and thus Sushil Kumar Mandal and Anil Kumar Mandal became the joint licensees. Dr. Sunil Kumar Mandal is an M.B.B.S. and is a Medical Practitioner and he devotes a full time for his medical profession. Anil Kumar Mandal, son of Late Lal Behari Mandal died on 28th November, 1962 and on his death his widow Parbati Mandal became the Joint licensee along with Sushil Kumar Mandal under the provisions of the said rule. On 4th May, 1981 the said Parbati Mondal died and then the surviving licensee Sushil Kumar Mandal was allowed to run the shop until settlement thereof upon death of Parbati Mandal and Swapan Kumar Mandal, son of Parbati Mandal applied for settlement of the licence in his name in place of Parbati Mandal along with the existing licensee Sushi! Kumar Mandal. Dr. Sunil Kumar Mandal did not raise any objection to the grant of licence in the joint names of Sushi! Kumar Mondal and Anil Kumar Mandal and further with Sushi! Kumar Mondal and Parbati Mandal. When death of Parbati Mandal was reported to the Collector of Excise by a petition dated 5th May, 1981, the Collector of Excise, Calcutta by his letter dated 1st June, 1981 directed Sushi! Kumar Mondal and Anil Kumar Mandal and further with Sushi! Kumar Mondal and Parbati Mandal. When death of Parbati Mandal was reported to the Collector of Excise by a petition dated 5th May, 1981, the Collector of Excise, Calcutta by his letter dated 1st June, 1981 directed Sushi! Kumar Mondal, the other joint licensee of Foreign Liquor 'Off' shop to run the said Foreign Liquor 'Off' shop upto 31st July, 1981 or till regular settlement was made whichever was earlier, subject to production of death certificate of Parbati Mandal. The Collector of Excise, Calcutta by a letter dated 6th August, 1981 allowed Sushil Kumar Mandal, one of the joint licensee to run the said shop for a further period upto 31st August, 1981 or tin regular settlement was made whichever was earlier. Thereafter, by another memo dated 15th September, 1981, the Collector of Excise, Calcutta allowed the said Sushi! Kumar Mandal, one of the Joint Licensee of the said shop to run the said shop for a further period upto 31st October, 1981. Thereafter, Sushil Kumar Mondal died intestate on 23rd September, 1981 leaving behind him surviving writ petitioner No.2, Prasanta Kumar Mondal. The petitioner No. 2 Prasanta Kumar Mondal intimated the death of his father Sushil Kumar Mondal to the Collector of Excise, Calcutta and made a prayer that Swapan Kumar Mondal be allowed to run the said shop till settlement is made. By the order dated 3rd October, 1981, the Collector of Excise, Calcutta respondent No. 4 herein allowed the petitioner No. 1 Swapan Kumar Mondal who was the son of Late Parbati Mondal to run the said shop temporarily as representative of Parbati Mondal, since deceased, upto 31st December, 1981 or until further order whichever is earlier. It may be mentioned that when Parbati Mondal died on 4th May, 1981 and on her death the then surviving joint licensee Sushil Kumar Mondal (since deceased) and Swapan Kumar Mondal eldest son of Parbati Mondal, applied for granting of licence of the said shop jointly with them under rule 209 and before such application could be disposed of, Sushil Kumar Mondal died and Swapan Kumar Mondal and Prasanta Kumar Mondal applied jointly for grant of licence in place and stead of Parbati Mondal and Sunil Kumar Mondal respectively under rule 209 of the said rules. At this stage Dr. At this stage Dr. Sunil Kumar Mondal applied for granting the licence, but ultimately he could not succeed. 3. After the death of Sushil Kumar Mondal, Dr. Sunil Kumar Mondal who was the third son of the original licensee, Late Lal Behari Mondal lodged a claim in the form of petition dated 28th September, 1981 for being inducted as a third partner as licensee along with the representative of late Anil Kumar Mondal and also the representative of Sushil Kumar Mondal as the legal heirs of original licensee late Lal Behari MondaI. The Collector of Excise, Calcutta considered the matter in details and considering the facts and circumstances of the case and law on this point, rejected the claim of Dr. Sunil Kumar Mondal and observed that – "In view of the above, I have carefully considered prayers of both the parties and given them proper hearing in the matter. On balance I have found joint petitioners Swapan and Prasanta to be more fit to hold the licence than Sri Sunil Kumar Mondal in as much with their other qualifications for the licence more or less unquestionable the former (Swapan and Prasanta) being sons and legal heirs of the deceased co-licensees stands on a more firm footing than Sri Sunil Kumar Mondal within the scope and purview of the A. C. Roy Circular. Thus Sri Swapan Kumar Mondal and Sri Prasanta Kumar Mondal are in my opinion true representatives of the Ex-licensees and they are both independently and jointly fit to hold the licence. The records of the Ex-licensees being quite satisfactory, all the requirements prescribed under rule 209 stand satisfied. When all the conditions have been satisfied it is relevant to consider other relevant factors. The licence hitherto confined to two units of a family will be wide open to another unit with inclusion therein of Sri Sunil Kumar Mondal and on his death or retirement further complications are likely to arise in future and certainly such complications will act to the detriment of Government revenue. Of course, the Collector can in such cases settle the licence with a new person but having regard to the difficulty of finding objection-free sites for the opening of a new shop now-a days it is better to forestall occurrence of such further complications in the interest of Govt. revenue. Of course, the Collector can in such cases settle the licence with a new person but having regard to the difficulty of finding objection-free sites for the opening of a new shop now-a days it is better to forestall occurrence of such further complications in the interest of Govt. revenue. The present side is in the possession of the joint petitioners and this may be regarded as an additional factor in favour of the joint petitioners, though such possession cannot by itself be a primary condition in deciding the issue. In view of what has been stated above, I hold that it is a fit case for settlement of the license jointly with Sri Swapan Kumar Mondal, son of Late Anil Kumar Mondal and Parbati Mondal and Sri Prasanta Kumar Mondal, son of Late Sushil Kumar Mondal under Rule 209 of the Rules issued with notification No. 601 S.R. dt. 30.3.1915, as amended and I settle the license accordingly with the said two persons on a regular basis subject to usual terms and conditions. It may be mentioned in this connection that it is not obligatory on the part of the Collector to advertise the licence while settling the same under Rule 209 of the consolidated Rules under s. 86 as in the present case, in my view of the guidelines prescribed in Excise Department No. 763 (17) Ext. dt. 21.6.1971 and Excise Directorate No. 437(15) Ex. dt. 8.12.1956. The draft deed of partnership which does not seem to offence any of the provisions of Excise Act and/or rules framed thereunder be got vetted by the S.S.E. (law). The licence will be issued after all formalities (including payment of security deposit) are completed and on receipt of certificate from the Commissioner of Police." 4. As the claim of Dr. Sunil Kumar Mondal was rejected by the Collector of Excise, Calcutta, an appeal was preferred by Dr. Sunil Kumar Mondal before the Commissioner of Excise. The Commissioner of Excise on consideration of the said appeal had held that- "The expression "representative" having not been defined will have the meaning as given in the present case, means "an agent, delegate, substituted, successor or heir". Accordingly, a representative for the purpose of Rule 209 need not necessarily be successor/heir or a blood relation of the deceased licensee. He may be an agent, a delegate or a substitute. Accordingly, a representative for the purpose of Rule 209 need not necessarily be successor/heir or a blood relation of the deceased licensee. He may be an agent, a delegate or a substitute. However, the suitability of a substitute for the purpose of Rule 209 will have to be governed by the other key word under Rule 209, namely 'renew'. "Renew" means restoring to original state. So if there be no surviving licensee because of the death of all the joint licensees, there is no suitable representative for the purpose of Rule 209 as in such a case the licence cannot be restored to original state or renewed. The licence could have been renewed with a representative if there had been any surviving partner of the business having joint licence. But, in the present case, with the death of Sushil Kumar Mondal, there was no surviving partner or licensee and so there was no representative with whom the licence could be renewed under Rule 209. In view of the above, I am of the view that Rule 209 has no application in the present case and the Collector of Excise, Calcutta ordered in law by invoking Rule 209 in this case. The appeal is allowed to the extent that the order of the Collector of Excise, Calcutta is set aside and it is hereby directed that the Foreign Liquor 'Off' shop should be settled afresh according to law observing, in particular, the procedure and formalities provided for in Ss. 30 to 35 of Bengal Excise Act, 1909. In the interest of excise revenue, however, the status quo about running the shop will continue for a period of 3 months from the date of this order or till the fresh settlement in accordance with law is made by the Collector of Excise, Calcutta whichever is earlier." 5. Against the said order of the Commissioner of Excise, the writ petitioners preferred a revision petition before the State Government which was also rejected by the State Government and communicated the result thereof by the memo dated 31.12.84/3.1.85. The Member Board of Revenue held that it is clear from a decision of this court reported in AIR 1967 Cal 450 that Rule 209 is not applicable in this case as the said Rule 209 applies only to a brewing and manufacturing license and not to a vending license. The Member Board of Revenue held that it is clear from a decision of this court reported in AIR 1967 Cal 450 that Rule 209 is not applicable in this case as the said Rule 209 applies only to a brewing and manufacturing license and not to a vending license. I do not find from the said decision that it has been laid down that Rule 209 does not apply to a vending license. What was held in that decision was "In this context, it should further be noted that Rules 207-209 made under power conferred by s. 86(2)(viii), which cannot possibly relate" to a 'vending licence'. . . . .". 6. In that case the question whether Rule 209 of the said Rule is applicable to a Vending Licence or not was not there. In that case the question for determination was that with regard to renewal of a brewing licence. Since the question whether Rule 209 applies to a vending licence or not was not directly or indirectly an issue in that case, accordingly, that case is not an authority for the proposition that Rule 209 is not applicable to vending license. It is not a Ratio Decidendi but an Obiter. When question on which there is no discussion or on which no arguments have advanced or dealt with, then the observation, if any, not necessary for the decision in the case and discussed in the judgment is an Obiter Dicta. 7. The Ratio Decidendi means a decision where the question were directly in issue and decided on the basis of the facts of the case and in case of Ratio Decidendi the same has a binding but not an Obiter Dicta bypassing casual or general observation have no binding effect. This principle is well settled: Accordingly an observation made in that case that Rules 207-209 possibly not relating to a vending license cannot be regarded an authority for the proposition that the said rule is not relating to a vending licence cannot be regarded an authority. This principle is well settled: Accordingly an observation made in that case that Rules 207-209 possibly not relating to a vending license cannot be regarded an authority for the proposition that the said rule is not relating to a vending licence cannot be regarded an authority. When the point was not an issue and it was beyond the scope and ambit but a casual observation, Rule 209 have been framed under s. 86 which have conferred power upon the State Government to make Rules for regulating the manufacture, supply or storage of any intoxicant and certain particular provision has been mentioned without prejudice to the generality of the said provision. It is firmly established principal that the particular provision for Rules enumerated in the Rule making power is subject to the generality clause and that the particular powers was merely illustrative and the general power flows from the generality of the provision. Accordingly, it cannot be said that Rules 207-209 have been made under power conferred by s. 86(2) (viii) only. The said Rules have been framed for regulating the manufacture, supply and storage of any intoxicant supply through 'off' and 'on' shop, certainly amounts to supply through retail 'off' and 'on' shop and the same cannot be said to be not a supply within the scope of the expression "supply" under s. 86 of the said Act. 8. Considering the scope of s. 86 and the Rules framed thereunder it cannot be said that the said Rules are not applicable. The rule 209 framed under s. 86 are applicable to vending 'off' and 'on' shop. The court cannot narrow down or limit or abridge the scope and ambit of a Rule unless the words are clear. It also appears that on the basis of Rule 209 not only in the instant case the Excise Department are transferred the licence on death and that this Rule is being followed uniformly in all cases. When the authorities were applying the provision of Rule 209 in all cases since inception of the Rule 209, I do not find any justification on the part of the Board of Revenue to hold it otherwise. The interpretation sought to be given by the Member Board of Revenue would introduce an illogical, unworkable and inconvenient result both for the revenue as well as the applicants, for transfer of a running business by virtue of the succession. The interpretation sought to be given by the Member Board of Revenue would introduce an illogical, unworkable and inconvenient result both for the revenue as well as the applicants, for transfer of a running business by virtue of the succession. Accordingly, I hold rule 209 is applicable in the facts and circumstances of the case inasmuch as that was a specific provision for transfer applicable to this case. 9. In order to appreciate the rival contentions of the parties it is necessary to appreciate the scope of rule 209 which is as follows: "209. On the death of a licensee, the Collector may renew the licence on the same terms in favour of a representative of the deceased, if he be satisfied that such representative is fit to hold it, and on the condition that any arrear due from the deceased licensee are recovered before the license is renewed. In such case no fresh deposit need be called for." 10. In the writ petition it was alleged that the Commissioner of Excise took erroneous and perverse view of the matter and that in the facts and circumstances of the case it was incumbent on the respondents to renew and/ or settle the said licence with the writ petitioners, who are the heirs and legal representatives of Sushil Kumar Mandal and Parbati Mandal deceased. 11. Mr. Moni Bhusan Sarkar learned Counsel appearing on behalf of the appellant submitted that Dr. Sunil Kumar Mandal respondent No. 5 cannot lodge his claim in respect of the said shop, inasmuch as, he was neither heir and legal representative of the deceased Sushi Kumar Mandal and/or Parbati Mandal. It was submitted that on the death of Lal Behari Mandai the licence was transferred by invoking the provisions of Rule 209 in favour of Sushil Kumar Mandal and Anil Kumar Mandal and that on the death of Anil Kumar Mandal, Parbati Mandal became the joint licensee with Sushil Kumar Mandal. 12. Thereafter on the death of Parbati Mandal an application was made by the then surviving licensee Sushil Kumar Mandai for incorporating the name of Swapan Kumar Mandal, writ petitioner No. 1 herein in place and stead of his deceased mother Parbati Mandal. From 1944 Dr. Sunil Kumar Mandal remained silent and did not lodge any claim and as such he has acquiesced in the matter. It was further submitted by Mr. From 1944 Dr. Sunil Kumar Mandal remained silent and did not lodge any claim and as such he has acquiesced in the matter. It was further submitted by Mr. Sarkar that the original licence stood in the name of Lal Behari Mandai and on 23rd August, 1928 the Collector of Excise, Calcutta passed an order allowing Lal Behari Mandal to take Sushil Kumar Mandal as Joint licensee of the said shop namely, Lal Behari Mandal and Sons. On the death of Lal Behari Mandal the name of Anil Kumar Mandal was incorporated. But at that point of time, Dr. Sunil Kumar Mandal had chosen not to come in the business and to substitute his name along with Anil Kumar Mandal in place and stead of LaI Behari Mandal. 13. It was further submitted by Mr. Sarkar that Dr. Sunil Kumar Mandal cannot come into the picture at all as he is not heir or legal representative or the representative of the deceased Parbati Mandal or Sushil Kumar Mandal and that accordingly, the Collector could not consider the claim of Dr. Sunil Kumar Mandal. Mr. Sircar further submitted that as Dr. Sunil Kumar Mandal had no locus standi to come into the picture at a point of time on the death of Parbati Mandal and/or Sushil Kumar Mandal, and he could not prefer any appeal against the order passed by the Collector of Excise, Mr. Sarkar further submitted that the Commissioner has exercised wrongful jurisdiction in entertaining the said appeal and allowing the said appeal. It was further submitted that the order passed by the Commissioner was void apart from other grounds on the ground that Dr. Sunil Kumar Mandal had no locus standi to prefer an appeal against the order passed by the Collector of Excise. Mr. Sircar further submitted that the interpretation of rule 209 given by the Commissioner was on the face of it erroneous and perverse. According to Mr. Sircar the Commissioner of Excise had allowed the appeal on its merit on a perverse view of the matter. Mr. Sircar further submitted that within the scope and ambit of rule 209 of the said Rules, the petitioners should be granted licence after renewing the licence as directed by the Collector of Excise, Calcutta dated 8.11.1982. 14. In the instant case, admittedly Dr. Mr. Sircar further submitted that within the scope and ambit of rule 209 of the said Rules, the petitioners should be granted licence after renewing the licence as directed by the Collector of Excise, Calcutta dated 8.11.1982. 14. In the instant case, admittedly Dr. Sunil Kumar Mandal was the third son of late Lal Behari Mandal who died in the year 1944. The Foreign Liquor 'Off' shop originally stood in the name of Lal Behari Mondal, but subsequently on the prayer made by Lal Behari Mandal, the Collector of Excise by an order dated 23rd August, 1928 added the name of Sushil Kumar Mandal in the licence as joint licensee and the name of the said shop was Lal Behari Mandal and Sons all the death of Lal Behari Mandal, the name of second son Anii Kumar Mandal was substituted in place and stead of the deceased Lal Behari Mandal. Under Rule 209 only representative of the deceased could come into the picture and the licence can be renewed in that name and accordingly, Anil Kumar Mandal came into the picture as a representative of the deceased Lal Behari Mandal and that thereafter licence was granted and renewed jointly in the names of Sushil Kumar Mandal and Anil Kumar Mandal since 1944. In the year 1962 Anil Kumar Mandal died and on the death of Anil Kumar Mandal, his widow Parbati Mandal became a Joint licensee with Sushil Kumar Mandal in view of the provision of rule 209. On the death of Parbati Mandal, Dr. Sunil Kumar Mondal could not be said to be a legal heir or representative of the deceased Parbati Mandal. Similarly, on the death of Sushil Kumar Mandal his son Prasanta Kumar Mandal applied for being substituted as a representative of the deceased Sushil Kumar Mandal. Neither on the death of Parbati Mandal nor on the death of Sushil Kumar Mandal, Dr. Sunil Kumar Mandal can come into the picture in order to get the, licence renewed which was standing in the names of the said deceased persons. Only a representative can come into the picture, that representative may be either an heir or anyone of the heirs as may be chosen by all heirs and legal representatives for the purpose of renewal of the licence under rule 209. 15. Only a representative can come into the picture, that representative may be either an heir or anyone of the heirs as may be chosen by all heirs and legal representatives for the purpose of renewal of the licence under rule 209. 15. In the instant case, Parbati Mandal died on 4th May, 1981 and immediately thereafter Swapan Kumar Mandal, the petitioner No. 1 herein applied for renewal of the licence jointly in the name of Sushi! Kumar Mandal and in his name as the representative of the deceased Parboti Mandal and that the Collector of Excise did not renew not taking any action on the said application in accordance with the provisions of rule 209. True, the legislature has not fixed any time limit within which an application for renewal under rule 209 has to be disposed of. That does not mean that the authorities may sit over the matter and can go on passing orders to run the said shop temporarily. In the instant case, the Collector kept the application of Swapan Kumar Mandal pending and thereafter Sushil Kumar Mandal died on 23rd September, 1981. Under such circumstances, it was not open to the Commissioner of Excise that because of the death of Sushil Kumar Mondal the said licence had spent of its force and as all joint licensees had died and there was no suitable representative for the purpose of rule 209. It was incumbent on the part of the Collector to dispose of the said application filed by Swapan Kumar Mandal immediately after-filing the said application. It is now firmly established principle that when statute has conferred power upon the authorities, in that event, that power must be exercised within a reasonable time. David Foulkes in his book Administrative Law, 6th Edition, page 199 had observed- “A court may be prepared to imply some limit to the life of a statutory power granted without express limit of time and to quash a decision taken beyond what it regards as its reasonable life. Delay in the use of a power will be a significant element in deciding whether it has been abandoned and delay may throw doubt on the motive of the decision maker to exercise a power, or on its reasonableness." 16. In the instant case, admittedly, because of laches on the part of the Collector, the situation was brought about when both the joint licensees died. In the instant case, admittedly, because of laches on the part of the Collector, the situation was brought about when both the joint licensees died. The petitioners cannot be made to suffer because of the laches and negligence on the part of the Excise authorities. On the death of Parbati Mondal his son Swapan Kumar Mondal duly made an application. But the application was not disposed of in accordance with the provision of rule 209 and that the petitioners had no hand in the matter to do anything. It is the Excise authorities who was sitting over the matter and in this connection, reference may be made to the maxim "impotentia excuset legum" which means law does not punish a person for not doing what it lakes power to do or for being in a situation which he was powerless to avoid. The situation was brought by the Excise authorities and for the laches and negligence on the part of the Excise authorities in exercising the statutory power and in not renewing the name of Swapan Kumar Mondal in place and stead of Parbati Mondal within a reasonable time, the Excise authorities cannot take this stand that because they had not disposed of the matter within a reasonable time and because of death of Sushil Kumar Mondal who died four months after Parbati Mondal and as such the licence has become infructuous. No one can be allowed to take advantage of his own wrong. The Excise Department also cannot take advantage of their own laches and negligence in the matter. EXCISE 17. Rule 209 of the Rules provides that on the death of a licensee the Collector may renew the licence on the same terms in favour of a representative of the deceased. If he be satisfied that such representative is fit to hold it on condition that all arrears from the deceased licensee have been recovered before the licence is renewed. In this case, on the death of Parbati, an application was filed for bringing on record her legal representative but the Collector had not brought the legal representative on record and on the death of Sushil his son also applied for invoking the provision of rule 209. The Collector had allowed the application of the writ petitioners for transfer of the licence under Rule 209. The Collector had allowed the application of the writ petitioners for transfer of the licence under Rule 209. The Commissioner had take a view that the word "representative of the deceased" does not mean legal representative which view has been accepted by the State Government. The Commissioner had also taken the view that the word "representative" in Rule 209 need not necessarily be successor or heir or blood relation of the deceased licensee. He may be an agent, delegate or a substitute and that suitability of such substitute for the purpose of Rule 209 would have to be governed by the key word "renew" in rule 209 which means restoring original estate. It according to the Commissioner if there is no surviving licensee because of the death of all the joint licensees there cannot be suitable representative for the purpose of Rule 209. This interpretation is wholly incorrect inasmuch as Rule 209 provides that "on the death of a licensee", the Collector may renew the licence on the same terms in favour of a representative of the deceased. This does not and cannot mean that in order to transfer a licence on the death of a licensee there must be a living co-partner or a co-licensee. The interpretation sought to be given by the Commissioner is contrary to the language of the Rule. On the death of a licensee a licence can be transferred to a Representative of the deceased licensee. This Rule has been framed with the object of protecting the interest of the heirs and the legal representatives of the deceased licensee. The word "representative of the deceased" have been provided in the Rules for the simple reason that there may be more than one legal representative or heir but all the legal heirs and representatives cannot be allowed to be a licensee that is why it has been provided that a licence may be renewed in favour of a representative of the deceased or in other words the word "representative of the deceased" means that the legal representatives can nominate or select any person among themselves or beyond that but that representative must be a representative chosen by the heirs of the legal representatives. The object of the Rule is to renew the license in favour of 'a representative' of the deceased in order to avoid other complications. The object of the Rule is to renew the license in favour of 'a representative' of the deceased in order to avoid other complications. Under Rule 209 of the said Rules on the death of a licensee one of the legal representatives or a representative of the heirs and legal representatives may be entitled to get the licence renewed if he is found fit. In the instant case admittedly on the death of Parbati her son Swapan Kumar Mondal applied for substituting his name in place and stead of his deceased mother and on the death of Sushil Kumar Mondal his son Prasanta Kumar Mondal applied for substitution. Under such circumstances unless it is found that they are not fit to hold such licence their names are bound to be included in place and stead of the deceased licensees and the licence had to be renewed in their names. It is well settled principle of interpretation that the court seeks to avoid a construction that causes unjustifiable inconvenience to persons who are subject to the enactment. There is maxim, non solum quod liect sed quod est conveniens est considerandum, Nihil quod est inconveniens est licitum which means not only what is lawful but also what is inconvenient is to be considered. Nothing that causes inconvenience can be taken as lawfully and that which is inconvenients or against reason is permitted in law. Lord Shaw said in Shamon Realties vs. Ville de St. Michael (1924) SC 185 at page 192 that "where the wards of a statute are clear, they must, of course, be allowed, but in their Lordships' opinion where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative to be rejected which will introduce uncertainty, friction or confusion into the working of the system". 18. It is also well settled principle that the court is to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfilment of the purposes of the legislation. Rule 209 could not be interpreted in a manner which would inflict inconvenient anomalous and illogical results. The interpretation sought to be given by the Commissioner was against the plain meaning and the spirit of the object of the very Rule itself. Rule 209 could not be interpreted in a manner which would inflict inconvenient anomalous and illogical results. The interpretation sought to be given by the Commissioner was against the plain meaning and the spirit of the object of the very Rule itself. I am of" the view that the Commissioner's interpretation of Rule 209 was on the face of its wrong. Renewal has to be made" on the death of a licensee in favour of a representative of the deceased that is the plain and simple meaning of the Rule. The view of the Commissioner if there is no surviving licensee because of the death of the joint licensees there could not be any suitable representative for the purpose of Rule 209 is preposterous and plainly wrong as Rule 209 of the said Rules comes into play on death. There cannot be any surviving licensee" and in order to continue that the business, the legislation has provided a provision for renewing the licence either in the name of the legal representative or a representative of the deceased. In my view the order passed by the Commissioner is based on total misconception about the provision of Rule 209 of the said Rules. Such an interpretation of a Rule from the head of the Excise Department of the State is surprising. On the death of Parbati, application may be made for renewal of the licence by a legal representative of the deceased. On the death of a licensee or a joint licensees his or her legal heirs or representative may apply for renewal and that the Collector can pass an order allowing the renewal in case the Collector found that such representative was fit and competent to hold such licence. So on the death of Parbati her legal representative may apply and in the instant case on the death of Parbati her legal representative i.e. Swapan Kumar Mondal applied for renewal. Similarly on the death of Sushil Kumar Mondal his legal representative i.e. Prasanta could apply and as a matter of fact applied. 19. Dr. Sunil Kumar Mondal by no stretch of imagination could be said to be an heir or legal representative or a representative of Parbati Mondal, and Sushi 1 Kumar Mondal since deceased. Dr. Similarly on the death of Sushil Kumar Mondal his legal representative i.e. Prasanta could apply and as a matter of fact applied. 19. Dr. Sunil Kumar Mondal by no stretch of imagination could be said to be an heir or legal representative or a representative of Parbati Mondal, and Sushi 1 Kumar Mondal since deceased. Dr. Sunil Kumar Mondal cannot be regarded to be an heir and legal representative of those two deceased persons under the law of the land and as such his application for renewal could not be entertained by the Collector but the Collector entertained the application of Dr. Sunil Kumar Mondal but, rejected on other ground. But in my view on the death of Parbati and Sushil, Dr. Sunil Kumar Mondal cannot come either as on heir or legal representative or a representative of those two deceased persons and accordingly in my view Dr. Sunil Kumar Mondal had no locus standi to prefer an appeal against the order passed by the Collector and as such the appeal was wholly incompetent. It is needless to point out that in appeal which is in law not maintainable and could not be entertained is on the face of it is illegal and any order passed thereon is also liable to be set aside. Appeal can be filed by a person aggrieved. The Collector took up the matter for renewal of licence on the death of a licensee under the rule 209 and that before the Collector a person who is not an heir or a legal representative or a representative of the deceased cannot come into the picture and that in the instant case Dr. Sunil Kumar Mondal was a stranger to the action and that the Commissioner could not entertain any appeal at the instance of a stranger to such a proceeding. It is needless to point out that the right of appeal is not an inherent right. It is essentially a creature of statute. 20. Accordingly, the writ petition succeeds. The order passed by the Commissioner of Excise dated 18th June, 1983 which is annexure 'K' to the petition is set aside. The order passed by the Board of Revenue dated 21.12.84 on the petition for revision filed by the petitioner is also set aside and the respondents Nos. 20. Accordingly, the writ petition succeeds. The order passed by the Commissioner of Excise dated 18th June, 1983 which is annexure 'K' to the petition is set aside. The order passed by the Board of Revenue dated 21.12.84 on the petition for revision filed by the petitioner is also set aside and the respondents Nos. 1, 2, 3 and 4 are directed to renew the licence in the name of the petitioners in terms of the order dated 8.11.82 passed by the Collector of Excise, Calcutta and settle the Foreign Liquor 'Off' shop which was run under the name and style of "L. B. Mondal & Sons" at Jatindra Mohan Avenue, Calcutta in favour of the petitioner forthwith. 21. The writ petition succeeds to the extent indicated above. There will be no order as to costs. Writ application allowed. Impugned orders set aside and Respondent Nos.1, 2, 3 and 4 directed to renew the licence in the names of the petitioners in terms of the order dated 8.11.82 passed by the Collector of Excise.