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2013 DIGILAW 419 (CAL)

Sankar Datta v. STATE OF WEST BENGAL

2013-07-05

DIPANKAR DATTA

body2013
Judgment : 1) The petitioner had applied for a foreign liquor ‘ON’ shop licence. Necessary enquiry was conducted and, thereafter, the report was placed before the Additional District Magistrate (T) and Collector of Excise, North 24 Parganas together with local objections that had been received. The petitioner and the objectors were heard on November 17, 2011. The Collector upon perusal of the enquiry report and its enclosures was of the view that the site offered by the petitioner is lawful and that he had also complied with other requirements and, therefore, the application for licence deserved consideration. However, considering the objections raised by the local people, which included number of Councillors of the local municipality, the Collector was of the view that he was “under lawful compulsion to apply the directive principles as laid down under rule 62/85 of the B. E. Act, 1909”. He, therefore, proceeded to reject the application of the petitioner for licence. The order passed in this respect by the Collector dated February 16, 2012, is the subject matter of challenge in this writ petition dated June 25, 2012. 2) Preliminary objection to the maintainability of the writ petition has been raised by Mr. Sengupta, learned advocate for the official respondents and Mr. Sarkar, learned advocate for the private respondents. They contended that the Bengal Excise Act, 1909 (hereafter the Act) provides a remedy of appeal to the petitioner before the Excise Commissioner and, therefore, the petitioner ought to be relegated to the appellate forum. 3) The argument that a writ petition is not maintainable because an alternative remedy is available is not at all sound. Availability of an alternative remedy does not oust the jurisdiction of the writ court. Such availability may provide thought to the court as to whether the writ petition should be entertained or not. Judicial discretion has to be exercised bearing in mind the facts and circumstances of each case. The objection has to be characterized as one relating to entertainability of the writ petition despite availability of an alternative remedy, and not maintainability thereof. No decision has been cited laying down the law that availability of an alternative remedy renders a writ petition not maintainable. It is for the court to decide whether to entertain it or not. The objection has to be characterized as one relating to entertainability of the writ petition despite availability of an alternative remedy, and not maintainability thereof. No decision has been cited laying down the law that availability of an alternative remedy renders a writ petition not maintainable. It is for the court to decide whether to entertain it or not. Here, I find that the writ petition was admitted for hearing by an order dated January 14, 2013, when the parties were directed to exchange their affidavits. On that date no objection to the entertainability of the writ petition on the ground of availability of an alternative remedy was raised on behalf of the respondents. The writ petition having been admitted and the parties having exchanged their affidavits, I do not consider it proper to relegate the petitioner to the appellate forum having regard to the law laid down by the Supreme Court in its decision reported in AIR 1971 SC 33 : L. Hirday Narain v. Income-Tax Officer, Bareilly. The objection stands overruled. 4) I have heard Mr. Gupta, learned advocate for the petitioner and Mr. Sengupta and Mr. Sarkar on the merits of the writ petition at length. My attention has been invited to various factual issues, viz. some of the complainants have vested interests (should the petitioner be granted licence, the financial interest of other licensees who have been running liquor shops in the locality would be affected and it is at their instance that those complainants were acting), mala fide of one of the complainants (from his building a foreign liquor shop has been operating), participation of a representative of a nearby school in the hearing although the enquiry report is clear regarding lawfulness of the site (meaning thereby that no educational institution is located within one thousand feet of the proposed site), political interference, etc. I need not examine these factual issues while judicially reviewing the order dated February 16, 2012 passed by the Collector. It is settled law that judicial review by a court of writ is available to scrutinize the process of decision making i.e. whether the procedures that the applicable statutory provision contemplated have been duly adhered to or not. I need not examine these factual issues while judicially reviewing the order dated February 16, 2012 passed by the Collector. It is settled law that judicial review by a court of writ is available to scrutinize the process of decision making i.e. whether the procedures that the applicable statutory provision contemplated have been duly adhered to or not. It is to be remembered that even if the ultimate decision is unwise or unsound, the court may not interfere; however, the court would not hesitate to interfere if the decision is unlawful or illegal in the sense that the provisions of law requiring adherence have been observed in the breach. 5) From the factual narrative, it would appear that the Collector perceived a compulsion “to apply the directive principles as laid down under rule 62/85 of the B. E. Act 1909”. 6) The Collector would have done well to point to specific provisions of the Act and the rules framed thereunder. The Act contains sections and not rules and, therefore, reference to a rule of the Act in the impugned order would seem to be misplaced. Having considered the provisions of Section 85 of the Act conferring power on the State Government to make rules for the purpose of carrying out the objects thereof or any other law for the time being in force relating to excise-revenue, and Section 86 which confers further power on the State Government to make rules in respect of the matters mentioned in clauses 1 to 14 thereof, I have been able to gather (without the assistance of the learned advocates for the parties) that reference to “rule 62/85 of the B. E. Act 1909” is indeed reference to Rule 62 of the consolidated rules framed under Section 85 of the Act, for, such Rule 62 is obviously a factor relevant for consideration as to whether licence should be granted or not. Rule 62 reads as follows: “In granting licenses for new shops, and, as far as practicable, in granting licenses 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 person 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.” 8) Although not referred to in the impugned order, I shall also assume, considering the affidavit-in-opposition filed on behalf of the respondents 1 to 5 that the Collector had in mind provisions contained in Rule 9 of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain other Intoxicants) Rules, 2003 (hereafter the 2003 Rules). The portion of Rule 9 that is relevant for a decision here, is quoted below: “The Collector shall also go through the following steps, for disposal of the proposal for grant of such licence:- A. He shall ensure whether the following information and documents have been furnished by the applicant, along with the application:- a) A copy of treasury challan, showing deposit of non-refundable application money as fixed under the prevailing rules. b) An estimated monthly sale of Foreign Liquor from the proposed licensed premises. B. After obtaining the application with the information and documents mentioned above, the Collector shall cause enquiry of the same by a responsible officer, to ascertain:- (i) The demand of the local area. (ii) Whether the area is free from objections as contemplated in rule 8 of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003, published vide Notification No. 800-EX. dated 29.07.2003, as amended. (ii) Whether the area is free from objections as contemplated in rule 8 of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003, published vide Notification No. 800-EX. dated 29.07.2003, as amended. (iii) Whether the applicant(s) is/are eligible to hold the licence according to rules 11 and 12 of the Rules published under Notification No. 800-EX. dated 29.07.2003 as amended. C. The following steps shall thereafter be followed by the Collector:- (a) He shall consider, public grievance, if any that may be submitted to him in this regard. (b) In case of receipt of such public grievance, he shall cause enquiry of the same. If on such enquiry, the representation(s) are found to be genuine, he shall not consider the prayer for grant of such licence at the proposed site. (c) To form an opinion, he may conduct any other enquiries as he feels necessary. D. After being satisfied that the proposed site is free from any restriction/objection and the proposed licensee(s) is/are eligible to hold an excise licence, the Collector shall grant a licence temporarily for a period not exceeding six months to the said applicant(s).” 10) For the purpose of deciding as to whether the Collector had complied with the statutory requirements prescribed by Rule 62 of the consolidated rules made under Section 86 of the Act and the steps mentioned in clause C of Rule 9 of the 2003 Rules, it would be necessary to read what the order impugned records in this behalf. The relevant portion is, therefore, reproduced below: “****** Therefore, the applicant deserves consideration. On the other hand a complaint in massive scale appeared before the authority. The complaint has taken an alarming situation because of strong protest by the local residents including Councilors of the local Municipality. It was reported that the public agitation would surely to cause a flaming situation if the proposed license be granted thereon. The entire locality is already protesting against the attempt of such granting, which may create law and order problem, in future. However, the persons appeared in the hearing to protest against the proposed grant of the license, stated that they have no personal grudge against the applicant. Rather, he may offer any such site elsewhere but not in that particular locality. However, the persons appeared in the hearing to protest against the proposed grant of the license, stated that they have no personal grudge against the applicant. Rather, he may offer any such site elsewhere but not in that particular locality. After careful consideration of the entire matter the Collector of the District is under lawful compulsion to apply the directive principles as laid down under rule 62/85 of the B.E. Act, 1909. Therefore, the petition of the ‘ON’ category license on the proposed site is hereby rejected. However, it is also observed that on enquiry, the offered site was found to be a lawful site as per existing rules. Therefore, the applicant may be given the opportunity to offer any other restriction and objection free site for the same category of license for further consideration.” 11) Bare perusal of the aforesaid extract would reveal the sentiments of the people of the locality being preferred to the claim of the petitioner for issuance of a licence in his favour. Experience has shown that whenever a person is desirous of obtaining a liquor licence and makes an application in that respect, lot of heat is generated in the locality and some of the local people masquerading as protectors of the rights of the “aam aadmi” throw in their weight and create impediments. what happens after the licence is issued overruling the objection of such people need not be discussed here. It is of significance that the framers of the rules were not oblivious of the fact that there might be frivolous complaints; that is the reason the requirement of conducting enquiry as well as further enquiry was incorporated in the rules. 12) On perusal of the portion of the order impugned extracted supra, it does not appear that the Collector had conducted any enquiry to find out the creditworthiness of the complaint(s). Having looked into the complaint dated August 29, 2011 appearing at pages 45 to 48 of the writ petition, it appears that at least 8 Councillors of the local municipality had signed as complainants. The local Councillor may have objection but how Councillors of other wards could join as complainants is not comprehensible. It further appears that members of one political party in unison had objected to issuance of licence prayed for by the petitioner. The local Councillor may have objection but how Councillors of other wards could join as complainants is not comprehensible. It further appears that members of one political party in unison had objected to issuance of licence prayed for by the petitioner. what was the interest of the members of a political party to object has not been ascertained by the Collector. It also appears that the Head Mistress of Amrabati Vidyapith was co-complainant and a representative of the said school was present at the hearing. It has been gathered from the order impugned that no school is located within the prohibited distance, as laid down by the 2003 Rules. Therefore, the locus standi of the faculty of the school or members of its managing committee to object ought to have exercised the consideration of the Collector, which unfortunately seems to be lacking. It is also appearing from the objection dated December 16, 2008 signed by the respondent no. 6 and other persons that the site proposed by the petitioner is surrounded by other liquor shops. The petitioner has also placed on record that an existing shop was granted permission to expand and open an additional bar, after rejection of his prayer for licence. W hether or not the licensing authority was right in granting expansion is of no concern here. However, what is striking is the objectors’ reluctance to object to such expansion or running of liquor shops by the other licensees and to put up a front when it comes to consideration of the petitioner’s application for license. There seems to be more than what meets the eyes. In terms of Rule 9 of the 2003 Rules, the first step while considering an application for licence is to ascertain the demand of the area. Insofar as the demand is concerned, the Collector appears to have formed an opinion in favour of the petitioner and declared the site to be “a lawful site as per existing rules”. The obligation that the rules cast on the Collector to hold proper enquiry upon receipt of local objections, i.e. whether the objections are sufficient and genuine as well as free from malice or ulterior motives, does not appear to have been discharged in the present case. The affidavit-in-opposition is silent in this respect. The obligation that the rules cast on the Collector to hold proper enquiry upon receipt of local objections, i.e. whether the objections are sufficient and genuine as well as free from malice or ulterior motives, does not appear to have been discharged in the present case. The affidavit-in-opposition is silent in this respect. I am constrained to hold that the Collector washed his hands off upon receipt of complaints from, inter alia, political leaders (Councillors) and members of a particular political party and did not have the courage to deal with the application with a free and independent mind. That is not how an application for licence is to be considered. It is true that one cannot claim a right to carry on business in liquor but once the State in its wisdom has laid down rules for grant of licence, and liquor shops in the State are found to be in abundance with increased demand of customers resulting in augmentation of State revenue, there appears to be no reason as to why the petitioner should be singled out and deprived of lawful consideration of his application for licence. 13) For all the aforesaid reasons, I am of the considered view that the order impugned is indefensible. The same stands set aside. 14) The Collector shall immediately, but not later than a month from date of receipt of this order, conduct such enquiry as is contemplated in Rule 62 of the consolidated rules made under Section 85 of the Act as well as Rule 9 of the 2003 Rules. Among other things, enquiry must be directed to ascertain the veracity of the allegations levelled by the petitioner in this writ petition regarding vested interests of a group of people, who are standing in the way of a licence being granted in his favour. Copies of the report of enquiry shall be made available to the petitioner as well as the respondent no. 6 (who appears to be the primary objector to grant of licence in favour of the petitioner) as well as the Councillor of the ward in which the site proposed is located. No other Councillor of the local municipality shall be entitled to participate in the proceedings, unless he is a resident of that ward and objects to grant of licence as a resident and not on the authority of the office he holds. No other Councillor of the local municipality shall be entitled to participate in the proceedings, unless he is a resident of that ward and objects to grant of licence as a resident and not on the authority of the office he holds. A Councillor, even though not resident of the concerned ward, may be allowed to participate in the proceedings if he satisfies the Collector of his right to object. The parties shall be extended reasonable opportunity of hearing within a month after the report of enquiry is furnished and an appropriate reasoned decision shall be taken on the petitioner’s application keeping in mind the relevant factors including location of other nearby liquor shops and the likelihood of loss of State revenue, should the petitioner be unable to offer any alternative site. A reasoned order shall be passed upon hearing the concerned parties, which shall be communicated to them without any delay. 15) Let the entire exercise in terms of this order be conducted within three months from date of its receipt. 16) The writ petition stands allowed to the extent mentioned above. There shall be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.