Kalyan Jyoti Sengupta 1519 Of 2005 (July 10, 2006) CLYDE STORES PRIVATE LIMITED VS. STATE OF WEST BENGAL ( 1 ) THE aforesaid application has been taken out by the State respondent for recalling of the order dated 22nd July, 2005 whereby and whereunder the above writ petition was disposed of finally setting aside and/or quashing the order of the Collector of Excise, Calcutta dated 29th September, 1999. By this order the Collector directed that business of foreign liquor "off Shop" in the name and style of the writ petitioner to be closed and all operations on the basis of the excise licence is stopped on purported recovery of non-duty paid Indian made foreign liquor being recovered from the shop of the petitioner. The said writ petition was heard from time to time on several days. However, on 22nd july, 2005 the learned Lawyer for the respondent was not present when he was scheduled to address the Court. Therefore, having found non-appearance I disposed of the writ petition on merit with reasons and on the basis of the fact finding. ( 2 ) OH 22nd December, 2005 I technically disposed of the recalling application with an observation that Mr. Kar will make his submission on the merit of the matter and if the Court considering his submission, finds that the order is required to be recalled then it may be recalled or modified in suitable manner after hearing the matter, otherwise the order will remain as it is ( 3 ) IN the context of the aforesaid order Mr. Joydip Kar led by Mr. A. C. Kar for the State contended that the writ petition is not maintainable as the impugned order was appellable one under the provision of Section 8 (2) of the bengal Excise Act, 1909. So the petitioner, without exhausting the remedy provided under the statute, has approached with this writ petition add this should be dismissed on that ground alone. According to Mr. Kar, under Section 42 of the Bengal Excise Act, 1909 (hereinafter referred to as the said Act), licence granted under the said Act can be suspended or cancelled on the various pounds as mentioned therein. According to Mr. Kar, under Section 42 of the Bengal Excise Act, 1909 (hereinafter referred to as the said Act), licence granted under the said Act can be suspended or cancelled on the various pounds as mentioned therein. Under Rule 2a of the rules framed under Section 86 of the said Act, licence granted under the said Act to a company will stand determined on any change of membership of the company or in the management thereof unless in the case of the private company prior approval of the State government to such change is obtained. It is an admitted position that there has been change in management by reason of induction of the Directors of the company. This change has occurred without prior approval having been obtained, as such the licence granted earlier shall stand automatically cancelled. Before the Collector could consider the question of violation of the aforesaid Rule and for violation of provision of Section 18 of the said Act which debars possession of intoxicant not having been obtained from a licensed vendor the present proceeding has been filed. Under provision of Section 44a of the Bengal Excise act, 1909 no person to whom a licence or permit has been granted under this act shall have any claim to the renewal thereof, as licence is granted from year to year and its renewal depends on the observance of the terms and conditions of the licence by the licensee. In view of breach of the aforesaid conditions the same is liable to be cancelled and/or suspended. There has been no illegality of the order of suspension of business passed by the Collector. It cannot be contended that the Collector had no jurisdiction to pass such order. The Writ court cannot usurp the jurisdiction of the statutory authority. The Writ Court can only interfere with the order of the statutory authority when it is found that the same is perverse, irrational and mala fide and also unreasonable. In support of this submission he has relied on three decisions of the Supreme Court reported in (1998)8 SCC143 (State of West Bengal v. Nuruddin Maluck), (2002)5 SCG 37 and (2004 6 SCC 588 (M. C. Mehtav. Union of India ). ( 4 ) MR. Samit Talukdar, while opposing this application, contends that there has been no breach of condition on the part of the petitioner at all. Union of India ). ( 4 ) MR. Samit Talukdar, while opposing this application, contends that there has been no breach of condition on the part of the petitioner at all. Induction of the petitioner No. 2 as a Director was made to change slightly Composition of Board of Director in accordance with law, and before such change due prior approval and Intimation was sought for. In spite of such intimation having been received no action was taken by the Government either by disapproving or otherwise, on the contrary, the licence was renewed admittedly upto 1999 even after induction pf the petitioner No. 2 on 30th December, 1993. According to him Section 42 (1 ) (c) of the said Act has no manner of application in the present case. The action on account pf alleged recovery of non-duty paid IMFL (liquor)was challenged by a review application. The respondent authorities, after reviewing the said order, by the subsequent order dated 15th February, 2000, has not continued order of closure on such ground. In any event, there has been no conviction under the said offence and, in fact, the said offence is a compoundable one under Section 65 of the said Act. As far as alternative remedy is concerned he contends that the writ petition is being heard on affidavit and it is settled law that alternative remedy is not bar in entertaining the writ petition. The writ petitioner has complained of impropriety and illegal exercise of jurisdiction. ( 5 ) ON earlier occasion I had considered the submission of Mr. Talukdar arid being persuaded the order was passed. Now question is whether on the basis' of the submission of Mr. Kar I should recall my earlier order or not. The first objection taken by Mr. Kar is for maintainability of the writ petition on the grbund of existence of alternative remedy. I am of the view, as rightly contended by Mr. T alukdar, that existence of alternative remedy is not absolute bar. Moreover, the Writ petition was heard from time to time after giving direction for filing affidavit and at no point of time this point was agitated before this Court not even in any affidavit-in-oppositibn. By this time a large number of decisions of the. T alukdar, that existence of alternative remedy is not absolute bar. Moreover, the Writ petition was heard from time to time after giving direction for filing affidavit and at no point of time this point was agitated before this Court not even in any affidavit-in-oppositibn. By this time a large number of decisions of the. Supreme Court and High Courts of this country have held that when the writ petition is being heard upon filing affidavits and without any reservation at the final stage the plea of alternative remedy cannot be entertained. ( 6 ) I, therefore, reject this contention. The decision cited by Mr. Kar of the Supreme Court cannot be disputed but those are not applicable in this case. This Court is concerned with the proper application of the law and whether the order of closure of business made by the Collector is with authority of the law or not. Obviously, under the law, without any licence liquor shop cannot be run. I have, upon fact finding, already held earlier that there has been renewal froirpi time to time of the licence. Mr. Kar has taken a point that since there has been a breach of terms of the condition of licence because of change of Bo ard of Director, it can be cancelled, rather it is deemed to have been cancelled. Admittedly there has been change of management by inducting a new Director and this is not permissible under Rule 2a. In order to understand the proper text of toe s,aid Rule it is set out hereunder:"2a. A licence granted under the Bengal Excise Act, 1909, to a company or a firm shall stand determined on any change of membership of the company or in the partnership of the firm or in the management thereof, unless in the case of the private company, prior approval of the State government, and in the case of a partnership firm, prior permission of the Collector and the approval of the Commissioner, to such change is obtained. Provided that in cases where changes occur without prior approval of the state Government or without the prior permission of the Collector and the approval of the Commissioner as the case may be, the Colfector shall forthwith ask the firm or the company to show cause within seven days as to why the licence should net be taken to be determined, consider the explanation if any and send his opinion and recommendation along with the explanation to the Commissioner soon thereafter. The commissioner or the State Government as the case may be, shall thereupon reviewe the case after-granting the party an opportunity of being heard and pass brders which shall be final". ( 7 ) ACCORDING to Mr. Kar due to induction of new Director the licence,by virtue of operation of the said Rule stands automatically determined. ( 8 ) I am unable to accept this submission because the entire Rule together with proviso has to be read in order to understand the scope of the same. In the golden Rule of interpretation of any statutory provision this has to be read as a whole, and according to me proviso portion is the dominant part of the aforesaid Rule. Upon careful reading of the said Rule it will appear that if there is change of management without prior permission of the Collector of approval of the Commissioner the licence does not stand determined automatically. In case of private company, it affords a ground tor taking action for cancellation. It will be clear from the proviso portion of the $aid Rules. If there is breach thereof a show cause notice has to be issued and opportunity of being heard has to be given. In this case ft did not happen so. Therefore, it cannot be said that all the renewals granted after change o! Board of Directors are invalid. I have already examined the impugfrted order then* is no such plea having been taken in the impugned order. Impugned order rung on a different footing and this is hbl sustainable urrcferlhetawasi'1 have decided in my earlier order. I do not find any reason to recall and interfere with my earlier order and the said order will stand. ( 9 ) AS this matter was pending for hearing and since the order is sustained now the contempt application is to be heard and the same is fixed one week hence.