JUDGMENT Altamas Kabir, J.: Till 11th December, 1989, the petitioners were carrying on business in ganja, opium and bhang under licence granted by the State. After the enactment of the Narcotic Drugs and Psychotropic Substances Act in 1985 a bar was imposed on the sale of ganja with effect from 12th December, 1989, except for medicinal and scientific purposes. Upon such bar being imposed, persons dealing in ganja, opium and bhang were rendered unemployed on and from 12th December, 1989. In order to rehabilitate such persons the Government formulated a policy whereby it decided to allow sale of 500 U.P. Rum and Beer by the erstwhile ganja licencees of the State. Pursuant to such policy retail licences for sale of 500 U.P. Rum and Beer for "off' premises consumption were issued to the erstwhile ganja licencees including the petitioners. 2. According to the petitioners, since they were permitted to sell only two items which were also of half strength, their customers were few and they were unable to compete with other liquor off-shop licence holders who could vend different varieties of intoxicants such as wine, brandy, whisky, gin etc. The petitioners, therefore, applied to the appropriate authority on 30th August, 1994, for grant of permission to vend foreign liquor items other than 50° D.P. Rum and Beer at their existing sites in keeping with the provisions of the West Bengal'(Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993, hereinafter referred to as the "1993 Rules", framed by the Government under Notification No. 148-Ex.dated 22nd March, 1993. 3. Inasmuch as, according to the writ petitioners no step was taken by; the appropriate authority on the application filed by the writ petitioners on 30th August, 1994, the petitioners filed separate writ applications before this Court for a direction upon the respondents to consider their applications for grant of licence to vend foreign liquor. By an order dated 15th November, 1994, passed the writ application of Shri Bijon Kumar Patra, a learned Judge of this Court directed the licensing authority, inter alia, to consider the writ petitioner's application for grant of such licence in accordance with law in the event new sites had already been selected for grant of such licence and in the event the concerned authorities had formed an opinion that off-shop licences were to be granted at the said sites. A direction was also given that in the event the petitioner's application for grant of such licence had matured for consideration, an order in accordance with law should be passed thereupon at an early date. 4. On 15th November, 1994, on several similar applications moved before this Court similar orders were passed. 5. Thereafter, Shri Bijon Kumar Patra was informed by the Commissioner of Excise, West Bengal, the respondent No.2 herein, that there was no sanction for grant of foreign liquor off-shop licence from the State Government at that particular point of time and that the representation made by Shri Patra would be considered along with other applications in accordance with law provided sanction of the proposed sites was given by the State Government. Similar letters were issued by the Commissioner of Excise to the other writ petitioners as well. Subsequently, however, a Notification being No. 66/Ex/O/1M-88/99 dated 4th February, 2000, containing the West Bengal Excise (Selection of Persons for Grant of Licence at New Sites for Retail Sale of Spirit and Certain other Intoxicants other than Foreign Liquor on categories of licences and licences for Denatured Spirit) Order, 2000, was published in the Calcutta Gazette on 4th February, 2000, disqualifying holders of any other excise licence from being considered for grant of licences under the said Order. 6. Clause 5 of the said Order provides for rejection of applications for grant of licences thereunder on different grounds. The provision relevant to the petitioners' case is contained in clause 5(2)(a) which reads as follows :- "5(2) An application shall also be rejected if- (a) the applicant holds any other excise licence." 7. The petitioners claim to have made various representations to the concerned authorities to suitably amend and/or rescind and withdraw the aforesaid Notification, either in whole or in part but there was no response to such representations except in the case of the petitioner No.9, Shri Kanai Lal Maity, who was informed by the Superintendent of Excise, Midnapore (West), on 17th July, 2000, that his application had been forwarded to the Excise Commissioner for taking necessary action. 8. 8. According to the petitioner, the State Government without following the procedure set out in Rule 9 of the 1993 Rules as also Rule 59 of the Bengal Excise Rules, conveyed its approval of new sites for grant of, inter alia, foreign liquor off-shop licences and fixed up the number of licences to be granted. 9. The aforesaid action of the State Government led to the filing of an application by the writ petitioners before the West Bengal Taxation Tribunal, Calcutta, being R.N. 203 of2000, under section 8 of the West Bengal Taxation Tribunal Act, 1987, challenging the Notification dated 4th February, 2000, in so far as it sought to disqualify the existing holders of 500 V.P. Rum and Beer Foreign Liquor (Off) Shop Licence and more particularly disqualifying the petitioners from applying for any category of Excise Licence at the finally sanctioned new sites for grant of additional number of foreign liquor (off) shop licences in West Bengal. 10. The said application was taken up for consideration by the learned Tribunal on 16th February, 2001, when an interim order was passed to the effect that lotteries be held on different dates but the result thereof was not to be published till 22nd March, 2001. 11. The State and the State respondents filed an application under Article 226 of the Constitution in this Court, being W.P.T.T. No.180 of 2001, challenging the aforesaid order dated 16th February, 2001, passed by the learned Tribunal in R.N. 203 of 2000. From a copy of the said writ petition the writ petitioners herein came to learn of another writ petition, being W.P. No.307 of 2001, filed in this Court by one Shri Dasarath Gupta and Others challenging the Notification dated 4th February, 2001, and an interim order was passed therein to the effect that the lottery could be held and the results could also be declared, but no further step was to be taken until 2nd March, 2001, or until further orders of this Court, whichever was earlier. 12. 12. From the copy of the writ petition filed by the State and the State respondents the writ petitioners herein also came to learn that another writ petition filed by the West Bengal Foreign Liquor Off and On Shop Owners' Association and Others, being W.P. No. 7224 (W) of 2000, had been heard on 10th January, 2001, and the same was disposed of with a direction upon the State of West Bengal to publish the amendment and to extend the last date for receiving applications. An appeal preferred from the judgment of the learned Single Judge, being M.A.T. No.321 of 2001, was dismissed by the Division Bench on 21st February, 2001. A Special Leave Petition filed by the writ petitioners before the Hon'ble Supreme Court against the judgment of the Division Bench was also dismissed on 23rd April, 2001. 13. On 23rd March, 2001, the Tribunal vacated the interim order passed on 16th February, 2001, on the application of the writ petitioners, being R. N. 203 of 2000. Challenging the said order, the writ petitioners moved a writ petition in this Court, being W.P.T.T. No.249 of 2001. While the same was pending the writ petitioners' application before the learned Tribunal was dismissed on 12th April, 2001. In view of such order of the learned Tribunal, the writ petition filed by the petitioner herein was disposed of on 17th April, 2001, with leave to the petitioners to take steps in accordance with law. 14. Appearing in support of the writ petition which was filed challenging the order of the Tribunal dated 12th April, 2001, Mr. Samaraditya Pal submitted that while dismissing the petitioners' application the learned Tribunal relied heavily on the decision of the learned Single Judge in W.P. No.7224 (W) of 2000, although, according to Mr. Pal the subject matter of the said petition and the application filed by the petitioners herein were different. Mr. Pal submitted that although the provision of paragraph 5(2)(a) of the order published under Notification dated 4th February, 2000, came under scrutiny in the said writ petition, such scrutiny was in the context of the writ petitioners' case challenging the constitutional validity of such provision, while in these proceedings the case of the petitioners is that the provisions of paragraph 5(2)(a) of the 2000 Order is in conflict with the provisions of Rules 10, 11 and 12 of the 1993 Rules. Mr. Mr. Pal urged that the learned Tribunal failed to appreciate the distinction and erroneously dismissed the petitioners' application on the basis of the decision rendered in W.P. No. 7224 (W) of 2000. 15. Mr. Pal contended that Rule 10 of the 1993 Rules makes provision for applications to be invited from eligible persons by the Collector for grant of licence at a new site selected by the State Government. Rule 11 indicates the persons eligible to apply for grant of licence and provides that application for grant of licence at a new site can be made by- (a) any person of or above the age of 21 years who is a citizen of India; (b) a firm; or (c) a Company. 16. Rule 12 prescribes restrictions on grant of licence to certain persons and provides that no licence for the retail sale of spirit or any other intoxicant at a new site shall ordinarily be granted to- (a) a person who was convicted by a criminal court of non-bailable offence; (b) a former licensee who was found guilty of serious breaches of the terms and conditions of his licence; (c) a former licensee who was a defaulter in the payment of excise revenue to the State Government; (d) a person who is interested either directly or indirectly, in the manufacture or sale of any intoxicant in a foreign territory or any State bordering upon the State of-West Bengal; (e) a person who had been granted the exclusive privilege of manufacturing and/or supplying and/or selling country spirit by wholesale under section 22 of the Act or a person who holds a licence for the sale of foreign liquor by wholesale. 17. It was urged that under Rule 11 the petitioners were eligible to apply for grant of licence at a new site and they were not covered by any of the restrictions in Rule 12, but an unreasonable bar was sought to be introduced by clause 5(2)(a) of the 2000 Order which was in direct conflict with Rules 11 and 12 of the 1993 Rules. Mr. Pal urged that having regard to Rule 17 of the 1993 Rules, the provisions of Rules 11 and 12 would prevail over clause 5(2)(a) of the 2000 Order. 18. Mr. Mr. Pal urged that having regard to Rule 17 of the 1993 Rules, the provisions of Rules 11 and 12 would prevail over clause 5(2)(a) of the 2000 Order. 18. Mr. Pal submitted that the learned Tribunal had proceeded on a wrong appreciation of the decision in W.P.NO.7224(W) of 2000 and had erroneously dismissed the petitioners' application under section 8 of the West Bengal Taxation Tribunal Act, 1981. Mr. Pal contended that the writ petitioners were eligible and entitled to be considered for grant oflice!1ce at the new sites selected by the State Government, notwithstanding the provisions of clause 5(2)(a) of the 2000 Order. 19. Appearing for the Revenue, Mr. Anindya Mitra, learned Senior Counsel, submitted that since the questions sought to be raised in the instant writ petition had been considered in detail and decided in W.P. No. 7224(W) of2000, the same were no longer res integra and could not be raised again in these proceedings. 20. Mr. Mitra also urged that there was no conflict between the provisions of Rules 11 and 12 of the 1993 Rules and clause 5(2)(a) of the 2000 Order since holders of other excise licences were not prevented from applying for grant of licences for new sites, but in order to prevent concentration of business in the vending of foreign liquor in a few hands, it was decided by the State Government that the applications of persons holding any other excise licence should be rejected. 21. Mr. Mitra submitted that the very same question had been raised and decided in W.P. No. 7224(W) of2000 and the learned Single Judge who heard the matter observed in the context of clause 5(2)(a) of the 2000 Order that the right to deal in liquor is the exclusive privilege of the State and if the State decided that would not permit its exclusive privilege to be utilised by a person for different trades, it could not be said that such decision of the State was bad. 22. Mr. 22. Mr. Mitra submitted that clause 5 of Order No. 315-Ex dated 25th April, 1991, which was replaced by the 2000 Order, provided that in case of grant of excise licences, the general policy to be followed is to try and avoid concentration of licences either in one unit or in a person or group of persons as far as practicable and for such purpose, where other qualifications were equal or comparable preference could be allowed to a unit or person in the mentioned circumstances. Mr. Mitra submitted that the same or similar provision had been incorporated in the 2000 Order and clause 5(2)(a) thereof would have to be read as being directory and not mandatory. Mr. Mitra urged that such a construction would set at rest the contention that clause 5(2)(a) of the 2000 Order was in conflict with Rules 11 and 12 of the 1993 Rules. 23. Mr. Mitra submitted that the judgment and order of the learned Tribunal did not warrant any interference and the writ petition was liable to be dismissed. 24. We have given our anxious consideration to the submissions made on behalf of the respective parties, having particular regard to the decision rendered in W.P. No. 7224(W) of 2000 wherein the provision of clause 5(2)(a) was considered and it was held that it was for the State to decide as to who would be the beneficiary of its exclusive privilege of dealing in liquor. 25. We are inclined to accept-Mr. Pal's submission that the subject matter of W. P. No. 7224 (W) of 2000 was different from the subject matter of this case. The validity of clause 5(2)(a) of the 2000 Order has been settled in the previous writ proceedings, but the question which has now been raised for our consideration is whether the provisions of Rules 11 and 12 of the 1993 Rules will have an overriding effect over the provisions of clause 5(2)(a) of the 2000 Order in view of the provisions of Rule 17 of the 1993 Rules which reads as follows: "17. Overriding effect of rules :- These rules shall have effect notwithstanding any thing 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 these rules". 26. Overriding effect of rules :- These rules shall have effect notwithstanding any thing 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 these rules". 26. It is quite clear from the above that clause 5(2)(a) of the 2000 Order will be subject to the provisions of Rules 11 and 12 of the 1993 Rules. In fact, Mr. Mitra tried to strike a balance between the said provisions by urging that the provisions of clause 5(2)(a) were not mandatory but directory in nature having regard to similar provisions contained in the Order dated 25th April, 1991. 27. We are afraid that Mr. Mitra's said submission is not borne out by the 2000 Order which was passed in supersession of the Order dated 25th April, 1991. In our view, having regard to the provisions of Rule 17 of the 1993 Rules, the petitioners are also eligible under Rules 10 and 11 thereof to be considered for grant of foreign liquor off-shop licence at the new sites selected by the State Government, notwithstanding the provisions of clause 5(2)(a) of the 2000 Order. 28. The writ application is accordingly allowed. The judgment and order of the learned Tribunal is set aside and the concerned respondents are directed to consider the cases of the petitioners for grant of foreign liquor off shop licence at the new sites selected by the State Government, along with other eligible candidates. 29. There will be no order as to costs. 30. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant within 72 hours from the filing of such application, subject to compliance with all the required formalities. Alok Kumar Basu, J.: I agree. Writ petition allowed.