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2008 DIGILAW 662 (GAU)

Bhajan Debnath v. Collector of Excise

2008-09-08

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A.K. Bhowmik, learned senior Counsel representing the Petitioner. Also heard Mr. N.C. Paul, learned Govt. advocate along with Mr. J. Mazumdar, learned Counsel who represent the Respondents. 2. This matter pertains to settlement of Foreign Liquor Shop ('the F.L. Shop') for the year. 2008-09. A tender notice (Annexure-1) dated 16.2.2008 was issued by the Collector of Excise offering for sale of retail end of the F.L. Shops and country liquor shops in West Tripura District and the last date stipulated for furnishing bid was notified as 30 days from the date of issuance of the tender notice. 3. As many as 65 liquor shops in different locations were notified in the tender notice and against the serial No. 28 the Mohanpur Bazar the F.L. Shop No. 1 with an MRF of Rs. 1,26,120 was included in the tender notice and against serial No. 20, for the same. Mohanpur Bazar, the F.L. Shop No. 2 was also notified for sale where MRF of Rs. 93,900 was stipulated. 4. The Petitioner offered highest bid for the Shop No. 1 at Rs. 2,20,000 and the only other offer was from the previous settlement holder Debabrata Saha who made an offer of Rs. 1,30,000. Most of the 65 shops for which tender notice was issued was settled by May 2008 and particularly the second shop in Mohanpur Bazar that is the Shop No. 2 was settled with one Smt. Bindurani Nath on 11.5.2008. But the settlement process with regard to Mohanpur Bazar the Shop No. 1 kept getting delayed. 5. On 30.6.2008 a letter was addressed to the Petitioner by the Collector of Excise asking him to chose an alternate site for locating the Shop No. 1 of Mohanpur Bazar. The Petitioner on the same date i.e. 30.6.2008 responded by submitting requisite documents for an alternate site for location of the Shop No. 1 for which he had made the highest offer. But the authorities did not take a decision on the settlement and eventually the Petitioner filed the instant writ petition seeking a direction on the Respondents to make the settlement as per the offer made by the writ Petitioner. 6. The Respondents have filed their counter affidavit and have also produced the relevant records. But the authorities did not take a decision on the settlement and eventually the Petitioner filed the instant writ petition seeking a direction on the Respondents to make the settlement as per the offer made by the writ Petitioner. 6. The Respondents have filed their counter affidavit and have also produced the relevant records. The Respondents contend that objections dated 1.4.2008 (Annexure R/2 of the counter-affidavit) from members of the public was received with regard to the original site of shop offered by the Petitioner. Accordingly it is claimed that the settlement m the original site in favour of the Petitioner could not be given. The second objection of the Respondents with regard to the original location was on the purported ground that said shop is adjacent to the Mohanpur Bazar F.L. Shop No. 2 and it may not be desirable to have two F.L. Shops operating from adjacent shop premises, at the said location. With regard to the alternate site offered by the Petitioner away from the original site, the Respondents claimed to have received objection on 9.7.2008 from the Principal and teachers of a nearby school. 7. Mr. Bhowmik, learned senior Counsel appearing for the Petitioner submits that there is no prescription under the Tripura Excise Act, 1987 ('the Excise Act') or the Tripura Excise Rules, 1990 ('the Excise Rules') placing restriction on operation of two liquor vends from adjacent shop premises. Therefore, the authorities are not justified in rejecting the original shop premises offered by the Petitioner on the ground that the said shop site is adjacent to F.L. Shop No. 20 of Mohanpur Bazar. The learned Counsel has also given instances of the State, Excise Authorities permitting operation of liquor shops from two adjacent shop premises at M.G. Bazar (Shop No. 1 and Shop No. 2) at Agartala. The Petitioner's Counsel also mentions the hstances of two liquor Shops, one country liquor and one foreign liquor, existing side by side at Sekerkote. 8. With regards the public objection dated 1.4.2008, Mr. Bhowmik submits that the said objections is engineered by Petitioner rival Debabrata Saha who has offered a much lower bid than the highest offer of the Petitioner and in fact several of the signatories in the said so called public objection have been identified, by Mr. Bhowmik as close relatives, employees and relations of such employees of his said rival Debabrata Saha. 9. Bhowmik as close relatives, employees and relations of such employees of his said rival Debabrata Saha. 9. The public objection dated 1.4.2008 (Annexure R/2) has also been referred to by the Petitioner's counsel and it is pointed out that the objection of the public is to the effect that both the Shop No. 1 and Shop No. 2 of Mohanpur Bazar be shifted from the present locations to isolated places. But it is submitted that instead of treating the public objection to be applicable for both the shop premises, the F.L. Shop No. 2 of Mohanpur Bazar has been settled on 11.5.2008 with one Smt. Bindurani Nath. On the basis of the above the learned senior Counsel for the petitioner submits that the justification claimed on the basis of the public petition dated 1.4.2008 for not giving settlement at the highest bid offered by the Petitioner, is not at all acceptable. 10. Mr. Bhowmik has also referred to the communication dated 28.7.2008 (Annexure R/9 of the counter affidavit) of the SDM (Sadar), Agartala to the Collector of Excise, where it is clearly indicated that the original site offered by the Petitioner, which is located in the heart of the market, is a suitable site. 11. On behalf of the Respondent-authorities, Mr. Paul and Mr. Majumdar, the learned advocates submit that as per the enquiry report submitted on 28.3.200S by the Senior Inspector of Excise, the original site of the Petitioner is not considered as an appropriate location for Shop No. 1 at Mohanpur Bazar and accordingly the authorities have taken the decision to not to allow two F.L. Shops to co-exist side by side in the same location because of the apprehension of the local people that two F.L. Shops in the same location will disturb the peace and tranquility of the area. The counsels also contend that there is likelihood of revenue loss if the shops function from same area. 12. On reading of the relevant provisions of the Excise Act and the Excise Rules, it is clear that there is no legal bar under the Excise Laws of the State for two F.L. Shops to operate from adjacent premises in the same location. In fact under Rule 24 of the Excise Rules, it is clearly mentioned that Liquor Shops should not be sparsely distributed as to give each a practical monopoly over a considerable area. In fact under Rule 24 of the Excise Rules, it is clearly mentioned that Liquor Shops should not be sparsely distributed as to give each a practical monopoly over a considerable area. Therefore, the legal provisions do not at all support the contention of the Respondents. 13. Under Rule 26 of the Excise Rules, certain principles are required to be borne in mind while considering grant of licence for liquor shops. It may be appropriate to extract Rule 26 for ready reference: 26. In granting licences for new shops, and, as far as practicable, in granting licences for established liquor shops, the Collector shall have regard to the following principles: (a) a liquor shop should not be inaccessible to consumers, but it should not be in such a situation as to obtrude itself on the attention of the public or to render persons passing by subject to annoyance from persons drinking. (b) in towns, the position of a liquor shop should be so far public that persons entering it should not escape observation, and it should be such as to render supervision easy, but it should not be so prominent as to compel attention, e.g., by occupying a whole side of a public square; (c) a liquor shop should never occupy a position to which the near neighbours object on grounds which, upon inquiry appear to be sufficient and free from malice or ulterior motives. 14. On reading of Rule 26 it became clear that the Collector must ensure that liquor shops should not be inaccessible to consumers; it must also not draw undue attention of the public; or cause annoyance to passers by. Objections of near neighbours are also required to be considered, unless such objections appear to be motivated through malice or ulterior motives. 15. It is found from the 'public' objection dated 1.4.2008 that a good numbers of signatories of the objection are people who are closely related with the business rival of the Petitioner who has submitted a far lower bid than the Petitioner. But on the other hand, the Mohanpur Bazar Committee where the shop offered by the Petitioner is located, has clearly indicated through their representation made to the District Magistrate on 9.4.2008 that they have no objection to establishment of two F.L. Shops at the Mohanpur Bazar. But on the other hand, the Mohanpur Bazar Committee where the shop offered by the Petitioner is located, has clearly indicated through their representation made to the District Magistrate on 9.4.2008 that they have no objection to establishment of two F.L. Shops at the Mohanpur Bazar. About 19 shop keepers of Mohanpur Bazar have also given a separate representation on 24.8.2008 stating that two F.L. Shops in Mohanpur Bazar have been operating since long and they made itrcl6ar that they have no objections to two liquor shops Operating from Mohanpur Bazar. Now if the so called 'public' objection/dated 1.4.2008 is considered in the light of the stand of the shop keepers of the Mohanpur Bazar and the Market Committee, who may be considered as near neighbours of the Petitioner, the worth of the public-objection is considerably diluted arid the submission of the Petitioner that it is an orchestrated complaint gather credibility. Therefore, the objection; dated 1.4.2008 cannot be accepted to satisfy the requirement of Rule 26(c) of the Excise Rules. 16. But even if the public objection dated 1.4.2008 is considered to be free from malice or ulterior motive and the said objection is considered to be bona fide, no explanation is forthcoming as to why the authorities took the decision to settle the Mohanpur Bazar F.L. Shop No. 2 on 13.5.2008 while the objection dated 1.4.2008 clearly asked for shifting of both the F.L. Shops from Mohanpur Bazar. It appears that the authorities proceeded to treat the demand of the public relevant only for the shop for which the Petitioner was a tenderer and not for the other shop where the Petitioner's rival was not an interested party. This itself gives a clear indication of the fact that the authorities have not dealt with the matter of settlement of Mohanpur Bazar F.L. Shop No. 1 in a fair manner and have fished for reasons and justifications to disregard the highest bid of the Petitioner. 17. Since there is nothing in the Excise Act as well as in the Excise Rules prohibiting operation of liquor shops from adjacent shop premises, the bona fide and sanctity of the 'public' objection is difficult to accept. 17. Since there is nothing in the Excise Act as well as in the Excise Rules prohibiting operation of liquor shops from adjacent shop premises, the bona fide and sanctity of the 'public' objection is difficult to accept. Because if the 'public' objection dated 1.4.2008 does not come in the way of granting settlement of shop No. 2, how such objection justify the refusal to operation of shop No. 1 from the original location offered by the Petitioner as shop No. 2 would be operating from an adjacent shop premises in the same market. Therefore, I think the refusal to the Petitioner cannot be justified on the basis of the said so-called public objection. 18. The decision in the instant case not to accept the highest offer of the Petitioner is found to be vitiated through unfair consideration and the grounds stated for not accepting the site offered by the Petitioner, cannot be accepted as a justifiable ground for rejecting the highest offer of the Petitioner. 19. In view of the above discussion, the decisions of the Respondent authorities to invite fresh tender or to give settlement of the F.L. Shop No. 1 to the second highest bidder Debabrata Saha is found to be unsustainable in law and the same is ordered accordingly. The Respondent authorities are directed to consider the offer made by the Petitioner for settlement of the Mohanpur Bazar F.L. Shop No. 1 as the suitability of the Petitioner's originally offered site has also been found acceptable by the SDM (Sadar), Agartala as can be seen from his report dated 28.7.2008 (Annexure R/9) sent to the Collector of Excise. 20. This process must be expeditiously completed within a period of 10 days from today, as 4 months, of the one year settlement term is already over. 21. With the aforesaid directions, this writ petition stands allowed. 22. A copy of today's order be furnished to Mr. N.C. Paul, learned Govt. Advocate for communication with the competent authorities. In favour of Department.