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1997 DIGILAW 114 (CAL)

Purba Lama v. State of W. B.

1997-03-03

Satyabrata Sinha

body1997
JUDGMENT Satyabrata Sinha, J. The petitioner in this application, inter alia, has prayed for the following reliefs :- "(a) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to forbear from giving effect to or further effect to and/ or recall, set aside, rescind and cancel the impugned order dated March 27, 1996 passed by the learned Excise Commissioner in the appeal case regarding settlement of the Hatipota Country Spirit Shop; (b) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to forbear from giving effect to or further effect to and/or rescind, recall, cancel and set aside the impugned order dated November 18, 1996 passed by the District Magistrate and Collector, Jalpaiguri and the memo bearing No. 1178(2)/E dated December 24, 1996 issued by the Superintendent of Excise, Jalpaiguri (being Annexure 'F' collectively to the writ application) regarding settlement of the said excise licence jointly with the petitioner and the respondent No. 5; (c) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to allow the petitioner to run the Hatipota Country Spirit Shop as sole licensee in terms of the order being memo No. 1074/E dated October 25, 1994 issued by the respondent No. 4 being Annexure 'D' to the writ application". 2. The petitioner and the private respondents are related to each other and are contenders for grant of licence for a liquor shop. The relationship between the parties shall appear from the following genelogical table :- 1st wife ---------- Kanchan Lama ---------- 2nd wife died in 1958 died long before the Sanja Dolma Lamani 2nd marriage of her died on 25.02.93 husband Choi Namgyal Smt. Padma Lamani (deaf & dumb) alias Padma Yonjone, (Respondent No.5). wife of Moni Kumar Yonjone (deceased) Phurba Lama (Writ-petitioner). 3. Admittedly Kanchha Lama was the original licensee and on his death a licence was granted in favour of Smt. Sanja Dolma Lamani, his second wife, as the son of Kanchha Lam was deaf and dumb. In 1993, Smt. Sanja Dolma Lamani died leaving behind her the private respondent as her heir and legal representative. The petitioner had applied for the said licence. The private respondent also applied for the said licence. In 1993, Smt. Sanja Dolma Lamani died leaving behind her the private respondent as her heir and legal representative. The petitioner had applied for the said licence. The private respondent also applied for the said licence. A temporary licence was granted in favour of the petitioner purported to be in terms of Rule 209 of the Rules framed under s. 86 of the Bengal Excise Act. He had filed an application for renewal thereof. The private respondent, however, prayed for revision of the said order and by an order dated 14th October, 1993 the District Magistrate stayed the operation of the earlier order passed by him on 28th September, 1993 whereby the licence was granted. 4. Allegedly upon communication of the order dated 5th October, 1994 passed by the Superintendent of Excise, the petitioner took over the charge of the excise shop. In the meantime an appeal was preferred by the private respondent before the Excise Commissioner, West Bengal without impleading the petitioner as a party therein. 5. By reason of an order dated 27.3.1996 the said appeal was allowed and the entire matter was remitted back to the Collector. The Collector thereafter gave opportunity of hearing to both the parties and by reason of the impugned order dated 18th November, 1996 as contained in Annexure 'F' to the writ application disposed of the matter. 6. Mr. Arunava Ghosh, the learned Counsel, appearing on behalf of the petitioner has raised two contentions in support of this application. The learned Counsel submits that the Collector could not have exercised any jurisdiction in the matter pursuant to the order passed by the Excise Commissioner as in the said proceedings, the petitioner was not impleaded nor was given an opportunity of hearing. The learned Counsel submits that in that view of the matter there cannot be any waiver of his right only because he had taken part in the proceedings before the Collector. As regards the impugned order as contained in Annexure 'F' to the writ application it is submitted that the licence could not have been granted in terms of the order passed by the Excise Commissioner. 7. The learned Counsel appearing on behalf of the State as also Mr. As regards the impugned order as contained in Annexure 'F' to the writ application it is submitted that the licence could not have been granted in terms of the order passed by the Excise Commissioner. 7. The learned Counsel appearing on behalf of the State as also Mr. Kanan Kumar Ghosh, the learned Counsel appearing on behalf of the respondent No. 5 submitted that as the order passed by the Excise Commissioner as also the Collector is in the terms of Rule 14(6) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993, the said orders are not vitiated despite the fact that the writ petitioner was not impleaded as a party before the Commissioner of Excise. It is stated that in any event the writ petitioner was not a necessary party as he was not eligible for grant of licence in terms of Rule 209 of Rules 1915 as modified by Rule 14(6) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993. In any event, according to the respondent, as the petitioner submitted himself to the jurisdiction of the Collector, he cannot raise the said question. The learned Counsel in support of his contentions that the impugned order was valid, relied upon an unreported decision of a division bench of this court in Monorekha Shaw vs. Haren Kumar Shaw (F.M.A.T. No. 403/94) disposed of on 27th July, 1994. 8. The fact of the matter, therefore, is not at all in dispute. 9. The learned Counsel appearing on behalf of the State has produced before me the entire records of the case. From a perusal of the order dated 27.3.96 passed by the Commissioner of Excise it appears that the appeal was entertained on technical ground and in view of Rule 14(6) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993. 9. From the records it further appears that the petitioner was aware of the order passed by the Commissioner of Excise as he had filed an application on 3rd October, 1996 praying therein that a copy of the said order may be furnished in his favour. 9. From the records it further appears that the petitioner was aware of the order passed by the Commissioner of Excise as he had filed an application on 3rd October, 1996 praying therein that a copy of the said order may be furnished in his favour. It is not the case of the petitioner that no such copy was furnished and/or he did not have any opportunity to go through the order passed by the learned Excise Commissioner. In this view of the matter there cannot be any doubt that the petitioner was aware that the proceeding was initiated by the Collector in terms of the order passed by the learned Excise Commissioner but despite the same he submitted himself to the jurisdiction of the Collector without any demour whatsoever. 10. From a perusal of the order passed by the learned Collector it appears that he had considered the entire matter on merits although in the penultimate paragraph he has used the words "so as directed by the Excise Commissioner, West Bengal passed by the learned Collector' it is hereby ordered............ " 11. Having considered the matter in its entirety, I am of the opinion that the merit of the decision was not based on any direction made by the Excise Commissioner but the order has been passed in view of the order of remand passed by the Excise Commissioner. 12. " 11. Having considered the matter in its entirety, I am of the opinion that the merit of the decision was not based on any direction made by the Excise Commissioner but the order has been passed in view of the order of remand passed by the Excise Commissioner. 12. Rule 14(6) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993 reads thus :- "Notwithstanding anything contained elsewhere in these rules or in any other rules for the time being in force, when a licence granted by the Collector at an existing site lapses on the death of the holder, a licence of the same category in lieu of the one lapsed, shall be granted in favour of one or more representatives of the deceased licensee along with the surviving partners/surviving joint licensees, if any, at the existing site, if such representatives are willing and eligible to hold the license and pay the arrears, if any, due from the deceased licensee : Provided that where it is not possible to grant the license under this sub-rule to any representative of the deceased licensee with or without the surviving partners/surviving joint licensees, as the case may be, the said license may be granted in favour of all the surviving partners/surviving joint licensees : Provided further that in the case of cessation of partnership due to death, no license shall be granted to the person or persons who have been partners, unless the partnership is validly reconstituted and the Excise Commissioner accords his approval to the grant of license to the reconstituted partnership firm : Provided also that if a fresh license cannot be granted in any manner under the first or the second proviso, the Collector may select, in the same manner as prescribed for the grant of license at a new site a person for the grant of license at the existing site or in the vicinity thereof." 13. The said rule is, therefore, a self-contained one. It provides for grant of licence in favour of one or more representatives of the deceased licensee. The learned Collector has considered the merit of the respective cases of the parties and has arrived at an independent finding. The said rule is, therefore, a self-contained one. It provides for grant of licence in favour of one or more representatives of the deceased licensee. The learned Collector has considered the merit of the respective cases of the parties and has arrived at an independent finding. In fact, the Commissioner of Excise in his order dated 27.3.1996 had not considered the merit of the matter but had inter alia referred to Rule 14(6) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993 and held that. the case of the private respondent was also required to be considered. 14. It is not necessary to state in details the effect of the order passed by the Excise Commissioner. It is true that before the said appellate authority the petitioner was not a party but keeping in view the aforementioned facts and as it appears from the records that at no point of time he has raised any question of lack of jurisdiction on the part of the Collector to consider the matter afresh pursuant to the order of the Excise Commissioner and as it is evident that he was also aware of the said order, he must be held to have submitted to the jurisdiction of the Collector without any demour whatsoever and, thus at this juncture he is estopped and precluded from questioning his jurisdiction for the first time in this writ application. Reference in this connection may be made to Sohan Singh vs. General Manager, Ordinance Factory, Khamaria, Jabalpur reported in AIR 1981 SC 1862 . It is further well known that principles of natural justice is required to be applied with circumstantial flexibility and order can be set aside only if substantial prejudice is established. 15. So far as the merit of the order passed by the learned Collector is concerned, it does not appear that the same suffers from any illegality, irrationality and procedural impropriety so as to attract the power of judicial review of this court. 16. It is now well known that in such a matter this court has a limited role to play in view of the decision of the Supreme Court of India in Tata Cellular vs. Union of India reported in 1994 (6) SCC 651 . 16. It is now well known that in such a matter this court has a limited role to play in view of the decision of the Supreme Court of India in Tata Cellular vs. Union of India reported in 1994 (6) SCC 651 . This court in exercise of its jurisdiction under Art. 226 of the Constitution of India is not concerned with the merit of the decision. 17. Furthermore, issuance of a writ of certioari is discretionary in nature. As by reason of the impugned order substantial justice has been done to the parties as well as in view of the fact that the said order conforms to Rule 14(6) of 1993 Rules, in my opinion, it is not a fit case in which this court should exercise its extraordinary jurisdiction in favour of the petitioner inasmuch as by reason of the impugned order, both the parties who are close relatives would be able to earn their livelihood. 18. For the reasons aforementioned, this application is dismissed but in the facts and circumstances of this case, there will be no order as to costs. Application dismissed.