Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 358 (CAL)

Pijush Kanti Das v. State of West Bengal

2002-05-23

ASOK KUMAR GANGULY

body2002
JUDGMENT Asok Kumar Ganguly, J. This writ petition has been filed challenging, inter alia, the site on which the Foreign Liquor Off Shop Licence was granted in favour of the respondent Nos. 7 & 8 namely, at 28, Hem Chandra Naskar Road, Police Station-Beliaghata, Calcutta 700 010 (hereinafter referred to as the 'said premises'). The petitioner made it clear that he was not a rival applicant and is not challenging the grant of licence in favour of the respondent Nos.7 and 8 on any other ground except that the site in respect of which the said licence has been granted is not permissible in view of the prohibitions contained under the Bengal Excise Act and Rules. 2. The case of the petitioner is that he is a resident of the said premises in respect of which the licence has been granted and, as such, he has a right to object the grant of licence. The case made out in the writ petition is that the petitioner is a resident within the Maniktala Assembly Constituency. The said premises is situated near a very busy Bus Stop and within few yards of the said premises, there are Hospitals like Beliaghata I. B. and I. D. & B. G. Hospital, Dr. B. C. Roy Polio Clinic, Cholera Research Institute. There are Nursery Schools like Model Primary School run by the Kolkata Municipal Corporation within the close vicinity of the said premises. The Bus Stop is also situated just behind the said premises and it is stated that the locality around the said premises is a middle class locality. The petitioner's case is that he and other local inhabitants came to learn that a Foreign Liquor Off Shop was going to be started from the ground floor of the said premises. On coming to know of that he and other local inhabitants contacted the Officer-in-Charge of the Beliaghata Police Station, but, as no action was taken by the said Officer-in-Charge, the petitioner and other local inhabitants made a mass representation to the Hon'ble Minister of Excise, Government of West Bengal praying for withdrawal of the permission for starting the shop at the said premises. But, their objection was in vain. Even then there was spontaneous local resistance to the running of the said shop. In order to prevent such resistance, the respondent Nos. But, their objection was in vain. Even then there was spontaneous local resistance to the running of the said shop. In order to prevent such resistance, the respondent Nos. 7 and 8 moved a writ petition before this Hon'ble Court which was numbered W. P. No. 1168(W) of 2002 and in the said writ petition the respondent Nos. 7 and 8 prayed for necessary police help for running the said shop. 3. The petitioner came to learn for the first-time on 28th July, 2000 that- a public notice was issued by the State of West Bengal in the daily newspaper inviting applications from the eligible candidates for grant of licence for sale of foreign liquor indifferent parts of Calcutta and it appears from the said notice that one of the sites which was mentioned in the said notice was 122/17, Beliaghata Main Road, Calcutta-700 010 or its vicinity. It is obvious that pursuant to the said notice, the respondent Nos. 7 and 8 applied for grant of licence and it is admitted that the respondent Nos. 7 and 8 applied for grant of the said licence in respect of the said advertisement against 122/17 Beliaghata Main Road, Calcutta-700 010. 4. The petitioner later on came to learn that the said writ petition filed by the respondent Nos. 7 and 8 against public resistance to the running of the shop came up for hearing before a learned Single Judge of this Hon'ble Court and the learned Judge, after hearing the parties, was pleased to dispose of the writ petition by directing the police authorities, particularly the Officer-in Charge of the Beliaghata Police Station, to render police assistance so that the writ petitioners i.e. the respondent Nos. 7 and 8 herein can run their business. However, the learned Judge made it clear that His Lordship did not go into the question of validity and legality of the grant of licence to the respondent Nos. 7 and 8. Therefore, it is common ground that this court can examine the said question. 5. The main argument in this writ petition is that the said grant of licence has been made by the concerned authorities without having proper regard to the rules namely, West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993 (hereinafter referred to as the said Rules). 5. The main argument in this writ petition is that the said grant of licence has been made by the concerned authorities without having proper regard to the rules namely, West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993 (hereinafter referred to as the said Rules). It is incumbent upon the Collector to follow the procedure contemplated under the said Rules for selection of site for grant of licence of Foreign Liquor Shop. It has been stated that the said premises is within the Maniktala Legislative Constituency and under sub-rule (4) of Rule 9 of the said rules, it has been made clear that the Collector shall send a copy of the notice referred to in sub-rule (3) of Rule 9 of the said rules to the persons and the authorities of the local area. The first authority mentioned in the sub-rule (4) is the Member of the Legislative Assembly. 6. It has been stated that the copy is to be sent to the Member of the Legislative Assembly of the local area inviting his opinion as regard the selection of the site. Within 45 days from the date of receipt of the copy of the notice, such person may send his opinion to the Collector as regards selection of the site. It has also made clear in proviso to sub-rule (5) of Rule 9 that if no opinion under -Rule 4 is received by the Collector from the person within the specified period, the Collector shall presume that such authority has no objection to the selection of the site or grant of licence. In the instant case, a great deal of stress has been laid on the non-compliance of the said Rule in view of the fact that the M.L.A. of the said area, i.e. Maniktala Constituency has written a letter dated 7th February, 2002 to the Collector of Excise objecting to the grant of the said liquor shop in favour of the respondent Nos. 7 and 8 from the aforesaid premises which falls within his Constituency. The concerned M. L. A. has also prayed for cancellation of the said licence from the said premises. 7 and 8 from the aforesaid premises which falls within his Constituency. The concerned M. L. A. has also prayed for cancellation of the said licence from the said premises. It has also been urged that the grant of licence in respect of the said premises is also bad in view of the fact that the said licence has been granted disregarding the mandate of Rule 8(1) of the said Rules. Rule 8(1) is set out below:- "Rule 8(1). No license for the retail sale of spirit or any other intoxicant at a new site shall be granted where the new site is situated in close proximity to an educational institution recognised by the State Government or the Central Government, or any college or institute affiliated to any University established by law, traditional place of public worship, hospital or bathing ghat for public use." 7. From a perusal of the said Rule, it is clear that no licence shall be granted for the retail sale of spirit or any other intoxicant at a new site where the new site is situated in close proximity of an Educational Institution recognised by the State Government or of the Central Government or any College or Institution affiliated to any University established by law, or traditional place of public worship, hospital or bathing ghat for public use. 8. In the instant case, the learned Counsel for the State who opposed the prayers of the writ petitioner did not file any affidavit despite the opportunity being given by the court's order dated 21st February, 2002. But when the matter was taken up for hearing the learned Counsel for the State fairly produced the records and assisted the court on the basis of those records. 9. From the records which have been produced before this court, it appears that many facts stated in the writ petition are reflected on the records. Some features which appear from the records are noted below. It appears that a notice dated 8th March, 1999 inviting public opinion or objection for selection of site for the grant of new excise licence for the year 1999-2000 was put up in the Notice Board in the office of the Collector of Excise, Calcutta. Some features which appear from the records are noted below. It appears that a notice dated 8th March, 1999 inviting public opinion or objection for selection of site for the grant of new excise licence for the year 1999-2000 was put up in the Notice Board in the office of the Collector of Excise, Calcutta. In the said notice, the proposed site for Foreign Liquor Off Shop in respect of which the licence was granted in the case was mentioned as 122/17, Beliaghata Main Road, Calcutta- 700 010. Therefore, the notice which was put up by the Collector of Excise, Calcutta for inviting public objection was in respect of 122/17, Beliaghata Main Road, Calcutta- 700 010 or its vicinity. It is not in dispute that no notice inviting objection to the said premises was put up on the notice board for public objection. Premises No. 122/17, Beliaghata Main Road is within the Beliaghata Legislative Constituency but the said premises in respect of which the licence has been granted is within the Maniktala Constituency. The application which was filed by the respondent Nos. 7 and 8 has also been disclosed by the State from the records. It appears from a perusal of the application of the respondent Nos. 7 and 8 that so far as the site is concerned against Column Nos. 6(b), it was mentioned 'Yes, will be offered in future'. The said application was made on 28th August, 2000, pursuant to the advertisement dated 28th July, 2000. From the communication dated 11th April, 2001 to the respondent Nos. 7 and 8 by the Excise authorities it appears that the Excise authorities informed them that the respondent Nos. 7 and 8 have been selected as No.1 in the list of the selected candidates by the Director of Lottery, West Bengal on the basis of lottery dated 19th February, 2001 and they were directed to submit within 7 days from the date of issue of the letter the details of the site including the Blue print of the site, site plan and the rent receipt, consent letter of the land-lord and so no. This is required for enquiry by the Collector. It has been made clear that if the person selected fails to submit the documents mentioned above within the stipulated period, the candidature is liable to be cancelled without any further reference. It appears that the respondent Nos. This is required for enquiry by the Collector. It has been made clear that if the person selected fails to submit the documents mentioned above within the stipulated period, the candidature is liable to be cancelled without any further reference. It appears that the respondent Nos. 7 and 8 filed 'No Objection Certificate' from the landlord on 20th April, 2001. 10. With the records filed by the learned Counsel for the State an enquiry report has also been annexed in respect of grant of foreign liquor shop in favour of respondent Nos. 7 and 8. It appears from the said disclosure that on 14th August, 2001 there was a spot enquiry in respect of premises No. 28, Hem Chandra Naskar Road which was about 5 minutes walking distance from the original site namely, 122/7, Beliaghata Main Road. The report says that in a congested city like Kolkata, it is difficult to get a suitable site, so the site offered may be considered in the vicinity of the 'original site'. So it is clear that the site offered is actually not in the vicinity of the original site but it is considered so in view of the congestion in the city of Kolkata. 11. In the said report it has been admitted that there is one small nursing home and Clinic in the name and style of "C. 1. T. Medical Centre" situated at about 125 ft. off diagonally opposite the site and in close proximity of the propose foreign liquor shop. This has been admitted in the report submitted to the Collector of Excise by the Deputy Excise Collector, F. L. D. Zone. It appears that the said report submitted by the Deputy Excise Collector is dated 16th August, 2001. Thereafter, the Collector after considering the said report by his order dated 26th November, 2001 settled the shop in favour of respondent Nos.7 and 8. Thereafter, a letter was also written by the Collector of Excise to the Commissioner of Police, Kolkata to issue a Police Certificate in favour of the said respondents for taking necessary action. 12. It appears that thereafter a licence was issued in favour of the said shop on 14th January, 2001. In the affidavit-in-opposition, which has been field in this case by the respondent Nos. 12. It appears that thereafter a licence was issued in favour of the said shop on 14th January, 2001. In the affidavit-in-opposition, which has been field in this case by the respondent Nos. 7 and 8 most of the admitted facts have been stated including the newspaper notification and also the fact that the said premises was within the vicinity of 28, Hem Chandra Naskar Road. It has also been stated that there are various shops on the ground floor of the said premises and the particular shop room in which the liquor shop was running was previously used by the previous owner. It has also been stated that the respondent Nos. 7 and 8 incurred substantial expenses for the purpose of running the said shop. 13. In view of the aforesaid fact, the question for consideration before this court is whether the grant of licence of the said shop was in accordance with the provisions contained under Bengal Excise Act and Rules framed thereunder. Since in the instant case, the main dispute is about the location of the shop being approved ignoring the prohibition under the Rules, this court by dated 03.04.2002 appointed a Senior Advocate of the court as the Special Officer for visiting the said premises upon notice to the parties. The court permitted the said Special Officer to be accompanied by a surveyor for the purpose of taking measurement. Pursuant to such order, the learned Counsel visited the said spot upon notice to the parties and gave a report. The said report was circulated amongst the parties. None of the parties objected to the said report. The report as given by the said Special Officer is set out below:- "The distance, in terms of feet, of the said shop from (i) the B. C. Roy Polio Hospital (Old) (now The Vocational Rehabilitation Centre for Handicapped) at 38, Badan Roy Lane, Kolkata - 700 010; (ii) B. C. Roy Polio Hospital (New); (iii) The Cholera Research Institution; and (iv) I.D. & B. G. Hospital was measured. The Surveyor's Report mentioned the details of such measurement. I found that the first of the above mentioned institutions has two gates, the one on the C. I. T. Road side nearer to the said shop was found closed and the same is certainly not in use. The Surveyor's Report mentioned the details of such measurement. I found that the first of the above mentioned institutions has two gates, the one on the C. I. T. Road side nearer to the said shop was found closed and the same is certainly not in use. The distance of the said shop from the nearest boundary wall of the Institution is 511 feet; that from the closed gate is 572 feet and that from the other gate (entrance) on C. I. T. Main Road is 654 feet. The distance of the said shop from B. C. Roy Polio Hospital (New) is 758 feet measured from its nearest boundary wall, 817'6 feet from the first gate on C. I. T. Main Road, 897'6 feet from the second gate on C. I. T. Main Road, 911'6 feet from the 3rd gate on Badan Roy Lane which appeared to be the main entrance for doctors and others and 1117 feet from the 4th gate on Badan Roy Lane. The I. D. & B. G. Hospital is on vast piece of land. Its main entrance being far away from the said shop while the rear emergency gate is somewhat closer, the distance of the said shop from the said institution was measured upto the rear emergency gate on Surah 3rd Lane. This was found to be 1175 feet. The starting point of the boundary wall of the Cholera Research Institute is at a distance of 1853 feet from the said shop while the distance increases to 1923'6 feet upto the first gate on C. I. T. Road. The only other institution near that shop is the C. I. T. Medical Centre and Nursing Home at 29, H. C. Naskar Road, Kolkata - 700 010. The gates of this institution were found closed. A lady standing in front of that institution, who disclosed her name to be Smt. Sabita Dutta and her occupation as a nursing sister attached to that institution, flatly refused to cooperate when she was requested either to let me in or to call in some responsible man of that institution; this notwithstanding the purpose of my visit and the authority by dint of which I had been undertaking the job being fully disclosed to her. However, apart from a Board, containing the names etc. However, apart from a Board, containing the names etc. of four doctors, hung up on the wall, no sign of any activity usually associated with a nursing home could be found by me there during the time of my visit. According to said Smt. Sabita Dutta there were tow indoor patients there at the time of my visit which could not be verified. The distance of C. I. T. Medical Centre and Nursing Home from the said shop is 218 feet." 14. From a scrutiny of the said report it appears that distance of the said shop in terms of feet from the B. C. Roy Polio Hospital (Old) is 522 feet and from the closed gate 572 feet and from the other gate on C. I. T. Main Road it is 654 feet. The distance from B. C. Roy Polio Hospital (New) is 758 feet from its nearest boundary wall. From the first gate on C. I. T. Main Road, 897'6 feet, from the 3rd gate on Badan Roy Lane which is the main entrance for doctors and others it is 911"6 feet away from 4th gate on Badan Roy Lane it is 1117 feet. So it is clear that both the B. C. Roy Polio Hospital (Old) which is now used as Vocational Rehabilitation Centre and the B. C. Roy Polio Hospital (New) are situated much within about 1000 feet from the said shop. The I. D. and B. G. Hospital is at a distance of 1175 feet. The distance of the Cholera Research Institute is 1853 feet which increases upto 1923 feet from the first gate on C.LT. Road. The distance of C.I.T. Medical Centre and Nursing Home from the said shop is 218 feet. Of course, about that medical centre, the Special Officer could not verify its activities. 15. It is an admitted position from the said report which is not disputed before this court, that there are as many as two medical institution and hospitals or rehabilitation centres for the handicapped within 1000 feet and another one is within 1200 feet and the Cholera Research Institute is at a distance of 1853 feet. 15. It is an admitted position from the said report which is not disputed before this court, that there are as many as two medical institution and hospitals or rehabilitation centres for the handicapped within 1000 feet and another one is within 1200 feet and the Cholera Research Institute is at a distance of 1853 feet. Along with the said report, a sketch map prepared by the surveyor was also annexed and from the sketch map it appears that the said shop is situated on the corner of Hem Chandra Naskar Road and C.I.T. Road and from the said sketch map it is clear that the B. C. Roy Polio Hospital (Old) is situated little towards the right of C. I. T. Main Road, the B. C. Roy Polio Hospital (New) is just a little away from the old one. In view of the said report of the Special Officer the factual dispute as to the distance of the said site from the aforesaid hospitals is set at rest. 16. Now the question is what is meant by close proximity. It may be noted here that the expression 'close proximity' has not been defined under the said Act or the Rules. The learned Counsel for the respondent Nos. 7 and 8 has referred to Law Lexicon and Black's Law Dictionary in order to explain the meaning of the word 'proximity'. First reliance was placed on Cassell's Concise English Dictionary from which it appears that the word 'proximity' means immediate nearness in place, time, relation. In Chambers 20th Century Dictionary the meaning of the word 'proximity' is defined as immediate nearness in time, place relationship. In Black's Law Dictionary the word 'proximity' has been described as 'kindred between two persons, quality or state of being next in time, place, causation, influence, etc.; immediate nearness". In the Law Lexicon it has been described as "closeness, nearness or immediate nearness in time, place, relationship". 17. Relying on the aforesaid meaning given to the word 'proximity' in different dictionaries the learned Counsel for the respondent Nos. 7 and 8 submits that the distance as reflected in the report of the Special Officer shows that the said site is not within the close proximity of the hospitals and nursing home. 18. The prohibition in Rule 8(1) of the said Rules has been engrafted with a public purpose. 7 and 8 submits that the distance as reflected in the report of the Special Officer shows that the said site is not within the close proximity of the hospitals and nursing home. 18. The prohibition in Rule 8(1) of the said Rules has been engrafted with a public purpose. Apart from that the prohibition in the said Rule is absolute in nature inasmuch as it starts with a clear mandate. 19. Considering the said Rule, this court in another case held that the expression 'close proximity' must be reasonably construed to mean that the site for a foreign liquor off shop must not be within the visibility of students who are at an impressionable age. In that case (W. P. 17144 [W] of 2001) the site for the shop was within the close proximity of a school. The court held that close proximity in the context of the said rule couldn't be less than a distance of at least three hundred yards. 20. Though bringing about prohibition in our country was one of the dreams of the founding fathers of the Constitution and is one of the Directive Principles of our National Charter (Article 47), but in today's permissive society the same appears to be a far cry. The promise of Article 47 is honoured more in its breach than by its compliance. 21. Be that as it may, the rules which have been framed specially Rules 8 and 9 presuppose that members of public have a right to object about the site of an excise shop. That is why apart from engrafting the mandate in Rule 8, Rules 9(4),9(5),9(7) and 9(8) have been framed. 22. In this connection Rule 9(8) is extremely relevant. Rule 9(8) is set out below:- "Rule 9(8). Before revision or modification of the list under sub-rule (7), the Collector may take into account objections or opinions, if any, received by him within a period of forty-five days from the date of publication of the notice under sub-rule (3) from any person, other than the person/authority referred to in sub-rule (4) and sub-rule (5), residing in the vicinity of any new site for-which a license is proposed to be granted in accordance with provisions of the Act or the Rules made thereunder." 23. In the instant case, the petitioner not only lives in the vicinity of the said premises in which the licence for the off shop is granted but in fact the petitioner is living in the very same premises. So the right of the petitioner to raise the objection is statutorily recognised. 24. But the said right has been defeated in this case inasmuch as the notice dated 08.03.1999 which was put up by the Collector in its office was in respect of 122/17, Beliaghata Main Road, Calcutta or its vicinity. The petitioner could not have raised any objection as he is residing at a considerable distance from 122/17, Beliaghata Main Road. Even in the report of the Deputy Excise Collector, fairly disclosed by the State Counsel, the distance between the two sites has been mentioned as 600 meters, which is about half of a mile. Sites situated at such distance are not normally within the vicinity of each other. This has also been hinted in the report by saying that the site offered (28, Hem Chandra Naskar Road) may be considered in the vicinity of the original site (122/17, Beliaghata Main Road). That is the petitioner's objection, namely that by putting up notice and inviting objection from public in respect of the original site for which the petitioner has no objection, the licence, on the plea of vicinity, cannot be granted in the residential complex in which he stays. The only justification of considering the said premises (28, Hem Chandra Naskar Road) to be in the vicinity of the original site is that Calcutta is a congested city. Calcutta has not become congested overnight. The concept of vicinity has been introduced in section 30(1) of Bengal Excise Act. There is no whisper in the section about vicinity being considered differently in different places. Now the object and purpose behind various section of the Act and the rule framed thereunder cannot be watered down on the basis of considerations such as congestion of a city. To say that least, such considerations are not strictly germane. 25. There is no whisper in the section about vicinity being considered differently in different places. Now the object and purpose behind various section of the Act and the rule framed thereunder cannot be watered down on the basis of considerations such as congestion of a city. To say that least, such considerations are not strictly germane. 25. It is a well known principle of statutory construction when a rule confers a right on an individual, as it does in the instant case, namely a right to object under sub-rule (8) of Rule 9, the same rule must be strictly construed and in a manner which furthers or protects the right and any construction which frustrates the right should be avoided. Nobody reading the notice inviting objection in respect of the original site can reasonably expect that the licence will be granted in respect of a site which is at a considerable distance and in a different assembly constituency and is actually is not within the vicinity but is considered to be within the vicinity because Calcutta is a congested city. Such an interpretation is unfair and is opposed to public policy on which the rule is based. 26. It is equally well settled when there are two competing claims-one is of following a statutory rule engrafting a public policy and the other is of promoting individual interests namely granting licence to the respondent Nos. 7 and 8, public policy must prevail over individual interest. So by accepting the site offered by the respondent Nos. 7 and 8 at the said premises which is not actually within the vicinity the Excise authorities have not discharged their statutory duty properly. 27. It is more than obvious from a reading of the rules namely Rules 8 and 9 including the sub-rules pointed out above that the power of the excise authorities enumerated in those rules is coupled with a duty. The duty is to exercise the power in such a way that the dominant public interest engrafted in the rules is not frustrated. In the licensing laws in respect of other establishment or shops, similar right to members of the public to object is not there. But the right to object is statutorily provided in respect of excise shops. The purpose behind such statutory dispensation is far too obvious to be ignored. 28. In the licensing laws in respect of other establishment or shops, similar right to members of the public to object is not there. But the right to object is statutorily provided in respect of excise shops. The purpose behind such statutory dispensation is far too obvious to be ignored. 28. Having regard to the said purpose in the rule, the authorities should not have stretched the concept of vicinity by allowing the respondent Nos. 7 and 8 to offer a site which is substantially away from the original site on the plea of congestion in the city of Calcutta. This is not a proper exercise of discretion by the statutory authorities. 29. The learned Counsel for the respondent Nos. 7 and 8 submitted that his clients have nothing to do with the exercise of discretion by the authorities. They have incurred expenditure for setting up the shop. For any lapse on the part of the authorities they are not responsible. So the Court should construe the provisions of Rules 8, 9(4), 9(8) as directory and not mandatory. 30. In support of such contentions, the learned Counsel relied on the decision of the Privy Council in Montreal Railway Company vs. Normandin" reported in AIR 1917 Privy Council 142. In that case the facts were that there was a failure to revise the list of jurors by the Sheriff according to the revised statutes of Quebee and the allegation is that there is mistrial. On that ground conviction by selecting jurors from unrevised list was challenged. The challenge failed. In the background of these facts, the observation of the Judicial Committee of Privy Council is set out below:- "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to the directory only, the neglect of them, though punishable, not affecting the validity of the acts done." 31. It is clear from the aforesaid principles that those observations have been made in respect of acts done by public authorities whose authority to do the act was challenged. It is clear from the aforesaid principles that those observations have been made in respect of acts done by public authorities whose authority to do the act was challenged. Such acts are normally protected by the "De facto doctrine". 32. Apart from that it is clear from the aforesaid observation that invalidating public acts would cause inconvenience and injustice to persons who have no control over those entrusted with the duty. It was also emphasized that the invalidation will also not promote the main object of the law and that is why the provision was considered directory. Therefore, the main object of the law has to be kept in mind. 33. So those twin considerations were there. One, the invalidation of public acts causing inconvenience to persons who have no control and secondly, such invalidation will not serve the object of the law. 34. Here those considerations are not present. It may be true that the invalidation of the grant would cause inconvenience to the respondent Nos. 7 and 8. But it cannot be said that they have no control or role in the matter. It is the respondents who have offered the site of the said premises which is at a distance from the original site. The responsibility of offering an objection free site is on the applicant. While applying for a liquor shop, it is expected that the applicant will become aware of the requirement of law. Now if they have taken a chance by offering a site which is so close to hospitals and clinics, they have taken a risk and they cannot assume that there will be no objection from members of the public when such a right has been conferred on the public. Apart from that, the invalidation of the grant of excise licence in favour of respondent Nos. 7 and 8 would serve the public purpose engrafted in the said rule which has been violated by the grant. Therefore, the ratio in Montreal Railway (supra) is not attracted here. 35. The learned Counsel had submitted that the ratio in Montreal Railway (supra) has also been followed in the case of Bishwanath Khemka vs. Emperor, reported in AIR 1945 Federal Court 67. The question which came up in that case was the requirement of consultation under section 256 of Government of India Act. 35. The learned Counsel had submitted that the ratio in Montreal Railway (supra) has also been followed in the case of Bishwanath Khemka vs. Emperor, reported in AIR 1945 Federal Court 67. The question which came up in that case was the requirement of consultation under section 256 of Government of India Act. The question was whether non-compliance with the requirement of consultation would make the appointment bad. Learned Judges held that noncompliance with the requirement of consultation would not make the appointment bad. On the facts of that case the learned Judges found that there was no foundation far the contention that the direction contained in section 256 was not complied with. (Please see page 68) 36. Learned Judges also held that the direction in section 256 was directory and non-compliance would not render an appointment, otherwise regularly and validly made, ineffective. 37. It may be noted that such requirement of consultation under section 256 of Government of India Act or under Article 320 (3) (c) of the Constitution has been judicially held to be not mandatory for the reason that such process of consultation does not confer on public servant any right, as such, any absence of consultation does not afford the pubic servant any cause of action in the court (please see the Constitution Bench judgment of Supreme Court in the case of State of U. P. vs. Manbodhan Lal Srivastava, reported in AIR 1957 SC 912 ). But the provisions which are relevant in this case stand on a totally footing as has been discussed above. 38. Now comes to the question of compliance with the provision of Rule 9(4) of the said Rules. But the provisions which are relevant in this case stand on a totally footing as has been discussed above. 38. Now comes to the question of compliance with the provision of Rule 9(4) of the said Rules. The said Rule is set out below: "Rule 9(4).- The Collector shall also send copies of the notice as referred to in sub-rule (3) of the persons/authorities of the local areas, namely,- (i) the Member of the Legislative Assembly, (ii) the Sabhadhipati of the Zilla Parishad, (iii) the Chairman of each municipality, (iv) the Municipal Commissioner or the Chief Executive Officer of each municipal corporation, and (v) the Chief Executive Officer of each notified area, inviting their opinions as regards selection of the proposed new sites falling within their respective jurisdictions within forty-five days from the date of receipt of the said copy of the notice and such persons/authorties shall, within the time so specified, send their opinion to the Collector as regards selection of new sites falling within their respective jurisdictions: Provided that where the list does not contain any new site falling within the jurisdiction of any such person/authority, it shall not be necessary to send a copy of the notice to such person/authority." 39. The learned Counsel for the respondent Nos. 7 and 8 urged that compliance with the rule is directory and not mandatory and the opinion of the Member of the Legislative Assembly is not binding on the Collector. 40. It is difficult for this court to accept this contention in its entirety. Rule 9(4) gives certain category of persons, of which the Member of the Legislative Assembly is the first in the list, a right to express opinion as regards the selection of the proposed site. Such opinion will have to be invited from them by, sending them a copy of the notice under Rule 9(3) in respect of new sites falling within the jurisdiction of the member concerned. 41. This part of the rule is not directory. Rather this part of the rule casts an obligation on the Collector to send such notice. In fact, in this matter the positive case of the Collector is that such a notice was sent. But such a notice was not admittedly sent in respect of the said premises. Notice was sent to Mr. Rather this part of the rule casts an obligation on the Collector to send such notice. In fact, in this matter the positive case of the Collector is that such a notice was sent. But such a notice was not admittedly sent in respect of the said premises. Notice was sent to Mr. Paresh Pal in respect of the V.I.P. Road and Ultadanga Road junction and Ultadanga Railway Station and its vicinity as the said site fell within Manicktola Assembly Constituency and Mr. Pal is the Member of Legislative Assembly from that constituency. Admittedly, the said premises in which the impugned licence has been granted is also within that constituency. Now under the grab of the expression 'vicinity', the right of an M. L. A. to give his opinion on the actual site cannot be defeated. The right of a people's representative to give opinion is provided in public interest and is writ large on Rule 9(4) of the said Rules. Therefore, attempt should be made by the public authorities functioning under the rule to exercise their power in a manner which protects the public interest, in such rule. 42. Considering the public purpose in built in the said rule this court finds that the expression 'vicinity' cannot be so construed as to throw the purpose of Rule 9(4) to the winds. It is a well-known canon of statutory interpretation that no interpretation should be given to a statutory rule which makes a part of the rule otiose. Now if the expression 'vicinity' is construed to mean that against a site mentioned in one assembly constituency, a site can be offered in another constituency, in that case, the purpose behind Rule 9(4) cannot be implemented. In that case the elected representative of the people will not get the statutory opportunity given to him to express his opinion in respect of a site even if the same falls within his constituency. It may be remembered that the right to give opinion must be exercised within forty-five days from the date of notice. Now the offering of the site takes place after forty-five days from the date of notice. It may be remembered that the right to give opinion must be exercised within forty-five days from the date of notice. Now the offering of the site takes place after forty-five days from the date of notice. Now after forty-five days, on the plea of vicinity, if the original site mentioned in the notice is changed to a site in a different constituency, the object of notice under Rule 9(3) for the purpose of obtaining opinion from the people's representative under Rule 9(4) is frustrated. This has exactly happened in this case. The local M. L. A., Mr. Paresh Pal was not invited to give his opinion in respect of the said premises even though the same is within his constituency. This is an infraction of Rule 9(4). It may be true that the opinion given by the M. L. A. is not binding on the Collector. But he has to consider the opinion and record his reasons under Rule 9(7). Here the opinion of the local M.L. A. in respect of the said premises was not invited and therefore, the same could not be considered by the Collector. The opinion of the M. L. A. not disclosed in the annexure to the writ petition is against the opening of the liquor shop from the said premises, but that has not been considered. 43. In order to counter this position, the learned Counsel for the respondent Nos. 7 and 8 urged that for obtaining the opinion of Mr. Paresh Pal notice was given in respect of the site at V.I.P. Road and Ultadanga Road Crossing to Ultadanga Railway Station" and Mr. Paresh Pal did not object about that site so it shall be presumed that he has no objection about any site in the entire constituency. This has been stated in para 9, page 18 of the affidavit filed by the respondent Nos. 7 & 8. 44. This is too weak a logic to be accepted. The objections are to be given in the context of the particular location of a site. If one site in a constituency is objection free that does not mean that all the sites that may be offered will be objection free. 45. Therefore, in the facts of this case the grant of licence has been made without complying with the provisions of Rule 9(4) of the said Rules. If one site in a constituency is objection free that does not mean that all the sites that may be offered will be objection free. 45. Therefore, in the facts of this case the grant of licence has been made without complying with the provisions of Rule 9(4) of the said Rules. The same is an infraction and that makes the order of the Collector infirm and exposes it to the interference of this Court. 46. Now coming to the question of following the mandate of Rule 8, it has been noted above the expression 'close proximity' has not been defined. But it is well settled that the words in a statute must receive its interpretation in the context of the particular statute and the purpose behind the same. Reference in this connection may be made to the judgment of Justice Bhagawati (as His Lordship then was) is the case of Union of India vs. Sankal Chand Himantlal Seth, reported in (1977) 4 SCC 193 . At pages 240-241 para 54 of the report the learned Judge said as follows: "The words used in a statute cannot be read in isolation: their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context.............The context is of the greatest importance in the interpretation of the words used in a statute." 47. The same opinion has been expressed by Mr. Justice Holmes in Towne vs. Eisner, reported in 245 US 418. The learned Judge said: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the Circumstances and the time in which it is used." 48. In the treatise 'The Loom of Language in Chapter IV, the following observations are of some importance in the context of how to interpret a word. It has been stated as follows: "Words are not passive agents meaning the same thing and carrying the same value at all times and in all contexts. They do not come in standard shapes and sizes like coins from the mint, nor do they go forth with a degree to all the world that they shall mean only so much, no more and no less. They do not come in standard shapes and sizes like coins from the mint, nor do they go forth with a degree to all the world that they shall mean only so much, no more and no less. Through its own particular personality each word has a penumbra of meaning which no draftsman can entirely cut away. It refuses to be used as a mathematical symbol." 49. Going by aforesaid guidelines one thing becomes clear that words in a statute are to be understood in the context of its setting. Here the purpose of the mandate in Rule 8 has been previously discussed. The obvious purpose is to keep liquor shops at a reasonable distance from educational institutions, places of worship, hospital, bathing ghat etc. In our socio-cultural set up, a liquor shop does not happily co-exist with those institutions. That is why a distance has to be maintained. So the expression 'close proximity' must mean a reasonable distance. Anything roughly within 1000 feet in the context of Rule 8 must obviously mean 'close proximity'. Here it is clear from the Special Officer's report, which. is not disputed, that at least two hospitals namely, B. C. Roy Polio Hospital (Old) and B. C. Roy Polio Hospital (New) are within 1000 feet of the said premises which was offered and accepted as a site. Those two hospitals are well known and are in the locality for a long time. Therefore, acceptance of the said premises as a site for a liquor shop in disregard of the mandate of Rule 8 and is invalid in law. 50. The learned Counsel for the respondent Nos. 7 and 8 submitted that this writ petition should not have been filed by the petitioner without exhausting the alternative remedy provided under the Act. The learned Counsel referred to section 8 of the Act in the order to submit that under the said provision an order passed by the Collector is appealable to the Commissioner. Since in the instant, case licence has been given by the Collector an appeal would lie to the Commissioner. 51. The learned Counsel also submitted that section 41(1) and section 41 (2) are of some significance in this case inasmuch as section 41(1) saves a lieence from invalidation if there is a technical defect or of irregularity or omission in the licence or in any proceeding taken prior to the grant thereof. 51. The learned Counsel also submitted that section 41(1) and section 41 (2) are of some significance in this case inasmuch as section 41(1) saves a lieence from invalidation if there is a technical defect or of irregularity or omission in the licence or in any proceeding taken prior to the grant thereof. What is a technical defect or irregularity or omission shall be left to the decision of the State Government. Relying on the said provision the learned Counsel submits that even if there is any defect in the proceeding taken prior to the grant of licence the same is in fact a technical defect or are mere irregularities and for such technical defect the petitioner should approach the statutory authority by way of an appeal and should not rush to this court. 52. This court is however, of the opinion that infirmities which are alleged in this case are not in the nature of technical defect. A technical defect is something which is a defect of very trivial nature. But in a case where there are patent non-compliance with statutory rules, they cannot be termed as technical defects nor can the same be called mere irregularities. 53. Coming to the question of alternative remedy, this court finds that when the grant of licence has been made in disregard of the statutory provision, an approach for a remedy to this court is not barred. It goes without saying that the existence of statutory remedy cannot operate as a bar to the exercise of jurisdiction by this court. In the instant case, the petitioner is not a rival claimant of the respondent Nos. 7 and 8 for a licence. In the instant case, the remedy which the writ petitioner is seeking in the nature of public law remedy in respect of his rights under the statutory provision. When a grant of licence is in violation of mandatory statutory provision, a writ petition would lie and the presence of a statutory remedy cannot be a bar. In this connection the observation of Chief Justice S. R. Das in the case of State of U. P. vs. Mohd. Nooh, reported in AIR 1958 SC 86 , are very partinent. When a grant of licence is in violation of mandatory statutory provision, a writ petition would lie and the presence of a statutory remedy cannot be a bar. In this connection the observation of Chief Justice S. R. Das in the case of State of U. P. vs. Mohd. Nooh, reported in AIR 1958 SC 86 , are very partinent. Speaking for the Constitution Bench, Chief Justice Das observed in page 94 of the report where "the error, irregularity" committed by the authority is "so patent and loudly obtrusive" that it leaves on the decision an "indelible stamp of infirmity or vice" and which "offends the Superior Court's sense of fair play", the Superior Court may exercise its power "to issue the prerogative writ". 54. So on those principles, this court, in the facts of this case, can interfere. 55. So for the reasons aforesaid, this court restraints the Collector of Excise from allowing the respondent Nos. 7 and 8 to run the foreign liquor off shop from 28, Hem Chandra Naskar Road, Beliaghata, Kolkata - 700 010. The respondent Nos. 7 and 8 must also stop the running of the said shop forthwith from 28, Hem Chandra Naskar Road, Beliaghata, Kolkata - 700 010.. The respondent Nos. 7 and 8 may offer any alternative site after following the mandate of the law and if such a site is offered, the excise authorities will immediately make an enquiry in accordance with law and will conclude it within 4 weeks and take an appropriate decision thereafter. 56. The writ petition is thus allowed to the extent indicated above. There will be, however, no order as to costs. Writ petition allowed without costs.