JUDGMENT Samaresh Banerjea, J.: In the instant writ application the writ petitioner inter alia, has challenged the order dated 26th August, 1998 passed by the Principal Secretary, Excise Department, Government of West Bengal, rejecting the representation of the petitioner for settlement of the Nagrakata Foreign Liquor Off Shop with him in a regular manner and on a permanent basis as also subsequent attempts of the respondents to settle the aforesaid off shop by inviting application therefore through advertisement. 2. Admittedly, the aforesaid Nagrakata Foreign Liquor Off Shop (hereinafter referred to as the said shop) was initially run by one Mrinal Kanti Chowdhury as a licensee and in the year 1974-75 on cancellation of licence of said Mrinal Kanti Chowdhury, such licence was temporarily settled with the petitioner. The said licence was extended from time in favour of the petitioner as stop gap measure for indefinite period upto 31st March, 1978. 3. It is also not disputed that the licensing authority, the Collector and the District Magistrate, Jalpaiguri granted a regular licence to the petitioner in respect of the said shop for the period from 1st April, 1978 to 31st March, 1979. Admittedly, such regular licence thereafter was renewed from year to year and last of such renewal was made for the year ending 31st March, 1997. 4. Thus after the petitioner was issued with the regular licence for the period from 1st April, 1978 to 31st March, 1979 such regular licence was renewed by the respondents continuously without any interruption for a period of 18 years. 5. The fact that such licence, which was issued in the manner aforesaid, was a regular licence and not a temporary licence, will be evident from the fact that the same was issued in Form 6' of the Bengal Excise Act. 6. Before expiry of the said regular licence for the aforesaid period the petitioner once again applied for renewal of the same whereupon the respondents issued the licence with effect from 1st of April, 1997 till 30th of June, 1997, without assigning any reason and without canceling his regular licence or without even issuing a show-cause notice. 7. 6. Before expiry of the said regular licence for the aforesaid period the petitioner once again applied for renewal of the same whereupon the respondents issued the licence with effect from 1st of April, 1997 till 30th of June, 1997, without assigning any reason and without canceling his regular licence or without even issuing a show-cause notice. 7. It is the case of the petitioner thereafter although he made representation against such action of the respondents to the Collector and the District Magistrate in his office chamber he was verbally assured that the same was done by mistake and the same will be corrected after 30th June, 1997. But after 30th June, 1997 also the licence was extended for a period of 3 months i.e. from 1st July, 1997 to 30th September, 1997. Further representation of the petitioner to the respondents was of no avail but he came to know on enquiry that the Collector and the District Magistrate, Jalpaiguri by his office Memo No.710-E dated 5th September, 1996 had sent a proposal to the Excise Commissioner, West Bengal for regularization of the licence in question in favour of the petitioner as it was the view of the said Collector and the District Magistrate that the said shop was granted to the petitioner on regular basis in excise Fonn No. 6' with effect from 1st April, 1978 and as the petitioner has been running the shop satisfactorily on depositing the security deposit amount from time to time. 8. On 24th September, 1997 the petitioner made another representation to the licensing authority requesting him to renew his licence beyond 30th September, 1997 upto 31st March, 1998 as he had been possessing the licence on regular basis since 1978, but the licence of the petitioner was extended by the licensing authority only upto 31st December, 1997. Thereafter the petitioner was informed by Memo No.1517/E dated 28th October, 1997 by the Superintendent of Excise, Jalpaiguri as directed by the District Magistrate that temporary licence of the petitioner would not be renewed further beyond 31st of December, 1997 and the petitioner was directed to appear before the District Magistrate on 7th November, 1997 for hearing. 9. Thereafter the petitioner was informed by Memo No.1517/E dated 28th October, 1997 by the Superintendent of Excise, Jalpaiguri as directed by the District Magistrate that temporary licence of the petitioner would not be renewed further beyond 31st of December, 1997 and the petitioner was directed to appear before the District Magistrate on 7th November, 1997 for hearing. 9. Thereafter the petitioner attended such hearing and the Collector by an order dated 18th November, 1997 after admitting that the petitioner held the Nagrakata Foreign Liquor Off Shop for a longtime though in a defective manner but with the approval of the authority though inadvertently, opined that the Nagrakata Foreign Liquor Off Shop be withdrawn as per Rule 14(7) of the Notification No.148 X dated 22nd March, 1993 read with section 44A of the Bengal Excise Act on expiry of the present period of renewal. The representation of the petitioner against the same was of no avail. 10. Ultimately in November 1997 the respondents decided to advertise the vacancy in respect of the said shop and invited applications by making advertisement. Being aggrieved by such action of the respondents the petitioner on an earlier occasion moved the writ application being W.P. No.30674(W) of 1997 and by Order dated 29th April, 1998 the aforesaid writ application was disposed of by Justice Pinaki Chandra Ghosh directing inter alia that the petitioner will be at liberty to make a representation before the Secretary, Excise Department, Government of West Bengal, and the said Secretary shall dispose of the same after giving an opportunity of hearing to both the parties by passing a reasoned order. Thereafter the Principal Secretary of the Excise Department, Government of West Bengal, after hearing the parties by the impugned order dated 26th August, 1998 has rejected the representation of the petitioner. 11. As it will appear from the said impugned order the main reason for rejection of the representation of the petitioner by the said Principal Secretary is that the petitioner was allowed to run the said shop for more than 2 decades without taking any steps for regular settlement of the shop which was a major lapse on the part of the District Excise Administration but such lapse does not confer any right on the petitioner to claim licence for the shop in a regular manner and on a permanent basis. 12. 12. It has been further held by the Principal Secretary that the petitioner is not entitled to have the licence for the said shop in a regular manner and on a permanent basis as the petitioners holds licnece in respect of another foreign liquor off shop and the existing policy of the Government is that excise licence should not be concentrated in one unit or in one family as per Notification No.315-EX dated 25th April, 1991. 13. It is pertinent to record in this connection that although in the affidavit-in-opposition affirmed on behalf of the respondents No.1-4 it was sought to be contended that the petitioner was never given a regular licence but always a temporary licence, such statement in the affidavit was totally incorrect and very much contrary to the order passed by the District Magistrate being the licensing authority being Memo No.110/E dated 5th September, 1996(Annexure 'c' to the writ petition) where it was clearly admitted by the licensing authority that it was found from the available record (duplicate copy of licence) that the foreign liquor off shop licence was granted to the petitioner in regular Form i.e. in Excise No. 6', which is a Form for granting regular licence and not for temporary licence. 14. Sum and substance of the contention of the learned Counsel appearing for the writ petitioner is that a regular licence was granted from April, 1978 for the period ending 31st March, 1979 which thereafter was renewed every year and such licence was issued in Form No. 6' on payment of usual fees. 15. It has been further submitted that Rule 17 of the 1993 Rules will indicate that such Rule shall have effect notwithstanding anything to the contrary contained in any other Rules or orders relating to the selection of new sites and grant of licence and all such Rules and orders shall be subject to 1993 Rules and therefore the Notification referred to by the Principal Secretary for the purpose of holding that the petitioner is not entitled to permanent regular licence as he holds licence in respect of another foreign liquor off shop, is subject to the 1993 Rules and thereafter cannot have any effect in view of Rule 14 of 1993 Rules. 16. 16. It has been submitted that Rule 14 of 1993 Rules permits the holder of a licence at an existing site to make an application for grant of a licence and proviso to the said Rules indicates the circumstances when the licensing authority can refuse to grant such licence and as such grounds on which such licence can be refused do not exist in the instant case, the respondents cannot refuse such licence on the basis of the aforesaid two circulars. 17. It has been further submitted that the instant case is not a case of a new grant of licence, but really for renewal of licence, admittedly the petitioner having been issued a regular licence previously and therefore the aforesaid Rule 14(2) of the said Rules will be applicable. The petitioner has also denied that he was issued with regular licence since 1st of April, 1978 inadvertently and it has been contended that even if such regular licence might have been issued in violation of the aforesaid two circulars, the same cannot operate adversely against the petitioner. 18. Reliance has been placed in this connection in the decision the Supreme Court in the case of Ashok Chand Singhvi vs. Jodhpur University, reported in A.I.R. 1989 S.C. 823 (para 17) and in the case of Kalyanpur Lime Works vs. State of Bihar, reported in A.I.R. 1954 S.C. 165 (para 15). 19. The learned Counsel appearing for the respondents on the other hand has submitted inter alia, that right to trade in liquor having held by the Supreme Court not to be a fundamental right under Constitution, the trade in liquor is subject to Rulees and Regulations framed by the State and therefore certainly it is open to the respondents to select a person for grant of licence as per the regulatory procedure framed by the State and as per its policy. It has been submitted that though the licence of the petitioner might have been renewed by the respondents inadvertently, such lapse would not confer any right on the petitioner to claim a regular licence. 20. Reference has been made to section 44A of the Bengal Excise Act which provides that no person to whom the licence of permit has been granted under this Act shall have any claim to the renewal thereof or save as provided in section 43 any claim to compensation on the determination of the licence. 20. Reference has been made to section 44A of the Bengal Excise Act which provides that no person to whom the licence of permit has been granted under this Act shall have any claim to the renewal thereof or save as provided in section 43 any claim to compensation on the determination of the licence. 21. After considering the respective submissions of the parties and the entire material on records it appears to this court that it cannot be disputed at all that though after cancellation of the licence of the original licensee in respect of the said shop, the petitioner was initially granted a temporary licence, with effect from April, 1978 the petitioner was no more granted a temporary but a regular licence which will be evident from the fact that the licence was issued in Form No. 6' of the Bengal Excise Act which is a Form for issue not of a temporary licence but a regular licence. 22. The fact therefore the petitioner was granted a regular licence in respect of the said shop with effect from April 1, 1978 till 31st March, 1979 and thereafter such regular licence was renewed from year to year on the application of the petitioner on payment of proper fees for about 18 years cannot be disputed. 23. It has, however, now been contended by the respondents after such lapse of time that such regular licence was issued to the petitioner inadvertently as such licence was issued without following the procedure for grant of regular licence by inviting application. It is also contended that such regular licence could not have been granted to the petitioner since as per the aforesaid 1991 Circular, the petitioner already having a licence of a foreign liquor off shop was not entitled to have another licence. 24. Although the respondents have alleged that such regular licence was issued inadvertently no records have been produced before the court to show how such regular licence was issued to the petitioners. But if the contention of the respondents is to be accepted that such regular licence was issued inadvertenty, the question for determination of this court would be whether any right has been accrued to the petitioner to claim a regular licence in respect of the said shop. 25. But if the contention of the respondents is to be accepted that such regular licence was issued inadvertenty, the question for determination of this court would be whether any right has been accrued to the petitioner to claim a regular licence in respect of the said shop. 25. Although normally because of commission of a mistake by an appropriate authority no right can accrue to a third party, in the instant case the regular licence was granted to the petitioner not only with effect from April 1, 1978 till 31st of March, 1979, such regular licence was subsequently on the application of the petitioner renewed from year to year for a period of almost 18 years after payment of requisite fees. For all those years the petitioner was treated as a holder of a regular licence and the licence was accordingly renewed from year to year on his application and on acceptance of requisite fees. Such renewal was made not because of any fault of the petitioner and the alleged mistake of the respondents if any was not because of any commission or omission on the part of the petitioner. All these years by granting such a regular licence in the year 1978 and thereafter renewing the same from year to year the respondents have made a representation to the petitioner that he is a holder of a permanent licence and the petitioner also on the basis of such representation as there is a permanent licence has made investment in the business. 26. There is no reason therefore why the respondents should now be permitted after lapse of so many years to refuse to treat the licence of the petitioner as a regular permanent licence, and to treat the same as a temporary licence to the serious prejudice or the petitioner since inadvertence or irregularity if any in the matter of granting such licence was the sole responsibility of the respondents. Since the fault lay with the respondents, the petitioner should not be made to suffer for such fault of the respondents. Reference may be made in connection to the decision of the Supreme Court in the case of Rajendra Prasad Mathur vs. Karnataka University, reported in 1986(Suppl) S.C.C. 740: AIR 1986 S.C. 1448 . 27. In the said case the appellants were admitted to certain private Course, although they were not eligible for admission. Reference may be made in connection to the decision of the Supreme Court in the case of Rajendra Prasad Mathur vs. Karnataka University, reported in 1986(Suppl) S.C.C. 740: AIR 1986 S.C. 1448 . 27. In the said case the appellants were admitted to certain private Course, although they were not eligible for admission. The Supreme Court dismissed the appeal preferred by the students whose admissions were subsequently cancelled and at the same time the Supreme Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges and therefore the Supreme Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission. 28. The same principle also has been applied by the Supreme Court subsequently in the case of Ashok Chand Singhvi vs. University of Jodhpur & Ors., reported in AIR 1989 SC 823 , upon which reliance has been placed by the learned Counsel appearing for the petitioner. 29. The learned Counsel appearing for the respondents also sought to contend that such grant of regular licence to the petitioner being contrary to the Government policy as contained in the aforesaid 1991 Circular the same was void and therefore no right can accrue to the petitioner out of such grant. 30. Although the Principal Secretary in his impugned order referring to said Notification No.351 dated 25th April, 1991 sought to contend that it is a matter of Government policy not to concentrate Excise licence in one unit or in one family, it is not very clear, as no sufficient material has been produced before this court; whether the direction contained in the said Notification is merely a guideline or a matter of Government policy. But even if such guideline contained in the said Notification dated 25th April, 1991 can be said to be a Government policy, there is nothing in the said Notification or nothing is other material to show that such policy was retrospective in operation. Admittedly, with effect from April 1, 1978 the petitioner was granted a regular permanent licence and not a temporary licence for a period of one year ending with 31st March, 1979 and thereafter admittedly from year to year such permanent licence was renewed. Admittedly, with effect from April 1, 1978 the petitioner was granted a regular permanent licence and not a temporary licence for a period of one year ending with 31st March, 1979 and thereafter admittedly from year to year such permanent licence was renewed. The policy if any referred to in the impugned order was effective from the year 1991 i. e. the date of said Notification. But even before coming into effect of such policy the petitioner has been enjoying such permanent licence which has been renewed from year to year for about 12 long years. In absence of any clear indication that such policy will also apply to the existing licence holders, the same cannot be made applicable to the petitioner. The fact that such policy cannot be made applicable to the petitioner is known to the respondents and that is the reason even after coming into operation of such policy for about 6 years more his licence was renewed. 31. But what is most important with effect from 22nd March, 1993, West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and etc.) Rules, 1993 (hereinafter referred to as 1993 Rules) came into operation. The said 1993 Rules laid down the detail procedure inter alia, for such grant of licence. The Rule 14 of the said 1993 Rules prescribed a procedure for grant of licence at an existing site and since admittedly the site where the said shop of the petitioner situates was an existing site, obviously Rule 14 of the said Rules will apply, which is quoted hereunder:- "14. Grant of license at an existing site.-(1) The holder of a license at an existing site may make an application to the Collector for grant of a license for the next period of settlement before expiry of the period of validity of the current license in such form containing such particulars as may be prescribed by the Excise Commissioner. No application for the grant of license for the next period of settlement shall be considered unless the application contains the signature of the existing holder and is accompanied by the requisite court fee stamps and a copy of the receipted challan showing payment of fees or other sums payable under any other rules relating to the grant of license for the time being in force. (2) On receipt of the application referred to in sub-rule(1) along with the requisite fees and other sums payable and documents, the Collector shall grant license to the existing holder for the next period of settlement: Provided that the Collector may refuse to grant a license to the existing holder for the next period of settlement if such holder- (a) has been convicted by a criminal court for commission of non-bailable offence, or (b) has committed serious violation of the terms and conditions of the license, or (c) is a defaulter in the payment of excise revenue to the Government: Provided further that where the Collector refuses to grant license to an existing holder for the next period of settlement, he shall record the reasons for doing so and intimate the fact to the Excise Commissioner." 32. It will thus appear from the abovementioned rule that such rule makes a special procedure for renewal of licence of the existing site and once holder of a licence in an existing site applies in the prescribed form on payment of the requisite fees for the licence, the Collector being the licensing authority cannot refuse such licence arbitrarily or whimsically or on any other ground other than the ground provided under clauses (a), (b) and (c) of the first proviso of sub-rule (2) of Rule 14. 33. Rule 17 of said 1993 Rules provides that those rules shall have effect notwithstanding anything to the contrary contained in any other Rules or orders relating to the selection of new sites and the grant of licence for the time being in force and all such rules or orders shall be subject to the said 1993 Rules. It will thus appear from the said Rules 17 that Rule 14 of the said 1993 Rules will have overriding effect over the aforesaid 1991 Notification containing such Government policy and even if such 1991 Notification can be said to contain Government policy, such policy was changed in the 1993 Rules which overrides the said Notification. Rule 14 or any other Rules of the said 1993 Rules does not prohibit grant of licence to an existing holder of licence if he is holding another foreign liquor off shop licence. 34. Rule 14 or any other Rules of the said 1993 Rules does not prohibit grant of licence to an existing holder of licence if he is holding another foreign liquor off shop licence. 34. It has been submitted by the learned Counsel appearing on behalf of the respondents that section 44A of the Bengal Excise Act provides that no person to whom a licence or permit has been granted under the Act shall have any claim to the renewal thereof or as provided under section 43, any claim to compensation on the determination thereof. Relying on the aforesaid section it has been submitted that the petitioner cannot claim renewal of the licence as a matter of right and it is wholly within the discretion of the authority whether such licence should be renewed or not. 35. It has rightly been contended by the learned Counsel appearing on behalf of the respondent that the petitioner has no fundamental right to carryon a trade or a business in liquor and it is the discretion of the licensing authority to grant or not to grant a licence and the State can certainly lay down measures for regulating such business in liquor. 36. But while grant of such licence, no doubt, is discretion of the licensing authority, such discretion cannot be an unfettered discretion. Such discretion cannot be used by the licensing authority arbitrarily, whimsically or capriciously but only judiciously. Exercise of such discretion must be free from such arbitrariness and must be informed with reason. While the writ Court will not sit as an appellate authority over the order of the licensing authority in the matter of grant of refusal of such licence in exercise of his discretion, but Court can certainly examine the exercise of discretion in the touchstone of Article 14 of the Constitution. 37. In the instant case the respondents themselves having now framed the aforesaid 1993 Rules laying down the procedure for grant and refusal of licence in case of an existing site, even though because of section 44A it may not be open to the petitioner to claim renewal of licence as a matter of right, it is certainly open to the petitioner to satisfy the court that in the matter of refusal to renew the licence in case of existing shop, the respondents have acted arbitrarily and in violation of Rules. 38. 38. As pointed out hereinbefore when the Rule came into operation the petitioner was very much an existing licensee in respect of an existing site and therefore renewal of same could not have been refused on any ground other than the ground laid down under the said Rule 14. 39. For the reasons stated above I am of the view that the Collector being the licensing authority and the Principal Secretary of the Excise Department, Government of West Bengal, fell into error in over-looking the above aspect of the matter and they could not have refused renewal of licence and the Principal Secretary also could not have held that the petitioner is not entitled to have a licence, already having holder of a licence in respect of another liquor off shop. 40. The impugned order of the Principal Secretary, Excise Department, Government of West Bengal, cannot also be sustained as it appears to this Court that the said Principal Secretary came to his finding on the basis of some assumptions, which are not borne out by facts. It will appear from paragraph 2 of the order that he proceeded on the wrong assumption that the licence of the said liquor shop was being renewed in favour of the petitioner sometime for 6 months at a time and sometime for one full year since 1974-75 till September, 1996 although in fact from April, 1978 the petitioner was actually being issued regular licence on payment of requisite fees on year to year basis and which has been renewed from year to year. Such assumption of the Principal Secretary is also totally contrary to the finding of the District Magistrate and Collector being the licensing authority dated 18th November, 1997 (Annexure 'F' to the writ petition) where the said District Magistrate after going through the official file, records, documents, written and oral submissions of the parties came to a finding on fact that the petitioner holds the licence for a long time though in a defective manner but with approval of the authority though inadvertently. Such assumption of the Principal Secretary is wholly contrary to the facts and also to the finding of facts of the District Magistrate, Jalpaiguri in his Memo No. 110/E dated 5th September, 1996 (Annexure 'C' to the writ petition) where it was held by the District Magistrate that it was found from the available records (duplicate copy of licence) that F.L. off shop licence was granted to the petitioner in regular form i.e. Excise Form No. 6' with effect from 1.4.78 and the licence was renewed for the whole year i.e. from 1988-89 to 1993-94. 41. For the reasons stated above the writ application succeeds. The impugned order dated 22nd August, 1998 passed by the Principal Secretary, Excise Department, Government of West Bengal (annexure 'K' to the writ petition) and the order dated 18th November, 1997 passed by the District Magistrate and Collector, Jalpaiguri (being Annexure 'F' to the writ petition) are hereby set aside. 42. Let a writ in the nature of Certiorari be issued accordingly. Let a writ in the nature of Mandamus be issued directing the respondents to renew the Nagrakata Foreign Liquor Off Shop licence in favour of the petitioner in respect of the aforesaid shop on regular basis from year to year beyond 31st December, 1998 on payment of the requisite fees, within 4 weeks from the communication of this order. There will be no order as to cost. 43. Urgent certified xerox copy of this judgment, if applied for, be granted as expeditiously as possible. Writ application succeeds.