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2014 DIGILAW 1100 (CAL)

Abhijit Karan v. State of West Bengal

2014-11-25

NADIRA PATHERYA

body2014
Judgment Patherya, J. By this writ petition the petitioner seeks to challenge the order dated 6th September, 2013 passed by the respondent no.4. The case of the petitioner is that a license was granted to him for carrying on the business of foreign Liquor ‘Off’ Shop. The said license was granted in 2005-06. Initially the license was granted in P.S. Kotwali, Paschim Medinipur and on a request made for shifting the said shop in 2011, the said prayer was allowed by the Excise Department and on the basis thereof, the foreign Liquor ‘Off’ Shop was shifted by the petitioner to the present site. On the basis of a mass petition received by the authorities an order was passed on 6th September, 2013, wherefrom it appears that an enquiry was conducted which revealed that two educational institutions, one hospital, one polyclinic and a religious place of worship (Mazar) was found within the vicinity of the foreign Liquor ‘Off’ Shop. This, according to the enquiry would cause law and order problem and, therefore, the petitioner was called upon to shift the site of the shop to a restriction free site. According to the petitioner, Section 8 of the West Bengal Excise Rules 2003 imposes a restriction on grant of license in the event in the vicinity an educational institution recognized by the State Government or Central Government or any college or institution affiliated to any university established by law, traditional place of public worship and hospital for public use exists. The said restrictions are to be along the path which an ordinary prudent person would take to reach the site from the aforesaid place. In the instant case, the educational institution is one Lions KG School which functions from 8:00 a.m. to 11:30 a.m. and is not recognized by either the State Government or Central Government. The Netaji Subhas Open University is another educational institution which does not conduct any class at its premise but has a sales counter thereat. Therefore, there is no educational institution or college to attract the restriction imposed under Section 8(1) of the 2003 Rules. The hospital is one Spandan Hospital which is not for public use. It is a private hospital which initially started as a polyclinic and comprises of 101 beds only. Therefore, it is a hospital for private individuals and not a restriction to bar grant of license or attract cancellation thereof. The hospital is one Spandan Hospital which is not for public use. It is a private hospital which initially started as a polyclinic and comprises of 101 beds only. Therefore, it is a hospital for private individuals and not a restriction to bar grant of license or attract cancellation thereof. The traditional place of public worship is a Mazar which is at a distance and is not along the path which is a prudent man would take to reach the site. It is situate after two turns and, therefore, cannot be a restriction on the petitioner’s business. Vicinity has been defined to mean a distance of 1000 ft. A Special Officer was appointed by order dated 24th December, 2013 and a report has been filed by him wherein the Mazar has been found to be at a distance of 1010 ft. Therefore, the said is beyond the 1000 ft. contemplated and will not tantamount to vicinity. No exception has been taken to the report of the Special Officer but an independent report dated 14th November, 2014 has been filed in Court for the purpose of creating evidence. The license was granted on the basis that the said Mazar was at a distance of 1200 ft. The Special Officer’s report shows Mazar at 1010 ft., but, the report dated 14th November, 2014 shows the Mazar at a distance of 975 ft. The measurement taken in November 2014 is not based on the path which a prudent person would take to reach the site. Opposite to the petitioner’s foreign Liquor ‘Off’ Shop, a bar cum restaurant has also been granted a license which is carrying on its business. Such bar cum restaurant is closer to the Mazar and the distance covered is less and within 1000 ft., but no step has been taken to cancel its license. In the Affidavit-in-Opposition filed by the State in December 2013, there is no mention of the distance between the Mazar and the petitioner’s site. All that has been said is that Spandan Hospital falls within the definition of hospital in terms of notification dated 29th July, 2003 and in view of the Ex-Serviceman’s Contributory Health Service Polyclinic so also the Mazar and Spandan Hospital the cancellation imposed is unjustified. In opposing the said application, Counsel for the State respondent submits that on measurement undertaken and the said being found within 1000 ft. In opposing the said application, Counsel for the State respondent submits that on measurement undertaken and the said being found within 1000 ft. the order dated 6th September, 2013 was issued. Spandan Hospital is for the public at large as it has 101 beds. Therefore, it cannot be said that it only caters to a few. In fact, it caters to the general public and, therefore, is covered by the restriction mentioned in Rule 8(1) of the 2003 Rules. Objection can be raised and complaints can be received even after grant of license as held in 2009 (3) CHN 782 , therefore, on receipt of complaint an enquiry was made. The respondent authority is ready and willing to issue license for an alternative site to be identified by the petitioner. In view of (2013) 6 SCC 573 the State respondents are entitled to impose restriction. The order of the Collector passed under Section 8 of the 1909 Act is appealable and in the event the petitioner’s ‘Off’ Shop is allowed to remain at site, it will encourage many. As an alternative remedy is available this application merits no order. Measurement has been taken and it is found that the ‘Off’ Shop is within 1000 ft. “Any hospital” mentioned in explanation (i) will include both public and private hospitals. Spandan Hospital has been carrying on its business since the last eight years and the Mazar is at a distance of 975ft. The 1000 ft. distance has been approved by the Supreme Court with its restrictions. As the statute must be followed all that has been done by the authorities is to follow the same, therefore, the action of the authority cannot be faulted and this application merits no order. Having considered the submissions of the parties by order dated 24th December, 2013 a Special Officer was appointed for ascertaining:- (i) Status of various institutions cited by the State to cancel the license; (ii) Existence of such institutions and (iii) The distance of the petitioner’s ‘Off’ Shop from such institution. A report has been filed by the Special Officer. The order of cancellation dated 6th September, 2014 is the subject matter of the writ petition. The said order has been passed on the basis of the restriction imposed under Rule 8(1) of the 2003 Rules. A report has been filed by the Special Officer. The order of cancellation dated 6th September, 2014 is the subject matter of the writ petition. The said order has been passed on the basis of the restriction imposed under Rule 8(1) of the 2003 Rules. The restrictions imposed are in respect of – (i) An educational institution recognized by the State or Central Government; (ii) College or institution affiliated to any university established by law; (iii) Traditional place of public worship and (iv) Hospital for public use. The educational institution in the said vicinity is Lions KG School, the college or institution is Netaji Subhas Open University, the hospital is Spandan Hospital and Ex-Serviceman’s Contributory Health Service Polyclinic (OPD) and the traditional place of public worship is a Mazar. At hearing this day, Counsel for the respondent authorities has very fairly submitted that it is not stressing on the school or college and in all probability the reason for such concession is that the school is a kindergarten school which is not recognized by the State Government or Central Government and operates from 8:00 in the morning till 11:30 a.m. The college or institution does not run any classes from its premise but the said premise is used as an information Kiosk or sales counter. This, therefore, leaves us with Spandan Hospital, Ex-serviceman’s Contributory Health Service Ployclinic and the Mazar. The hospital contemplated in Rule 8(1) of the 2003 Rules is for public use. Spandan Hospital is run by the Spandan Group of Companies and is a private hospital for the use of a restricted class of people and not for the general public. Therefore, the said hospital would not be covered by the restriction which specifically describes the hospital for public use. Similarly, the polyclinic does not satisfy the definition of a hospital and, therefore, cannot be a restriction to grant of license. The Mazar undoubtedly is a traditional place of public worship and going by the report of the Special Officer, the Mazar is at a distance of 1010 ft. No exception has been taken to this report by any of the parties. Instead, an independent report is sought to be relied on by the State respondents of November, 2014. The said report is at a variance from the report on the basis of which the order of cancellation has been passed. No exception has been taken to this report by any of the parties. Instead, an independent report is sought to be relied on by the State respondents of November, 2014. The said report is at a variance from the report on the basis of which the order of cancellation has been passed. Therefore, the two reports of the State respondents itself is conflicting and raises a doubt with regard to the veracity or correctness thereof. As no exception has been taken to the report of the Special Officer and from the report of the Special Officer the Mazar is at a distance of 1010 ft. which is beyond the restrictive zone the order dated 6th September, 2013 cannot be sustained in the eye of law and is accordingly set aside. Another reason is that the Special Officer in his report has specifically stated that Spandan Hospital was found to be a private hospital. A private hospital is in contrast to a public hospital where free or subsidised medical assistance is given to the public including the residents of the State. A private hospital in contradistinction does not provide medical aid at subsidised rate and is set-up as a commercial enterprise. In view of the aforesaid this application is allowed and disposed off.