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2015 DIGILAW 848 (CAL)

State of West Bengal v. Avijit Karan

2015-10-05

ASHIM KUMAR BANERJEE, MANJULA CHELLUR

body2015
JUDGMENT : Dr. Manjula Chellur, J. – The present appeal is directed against the order of the Learned Single Judge at the instance of the State. In brief the facts that led to the filing of appeal are to the effect that the respondent writ petitioner was carrying on business of running foreign liquor off shop right from 2005 onwards. In 2011 he sought for shifting of his business premises from Original Site to another site at Plot No. 280/575, L.R. Plot No. 501 (P), Khatian No. 13, J.L. No. 171, Mouza Keranitola, P.S.-Kotwali (hereinafter referred to as the 'new site'). Of Course this was by an application to the concerned authority. Initially such permission was granted by Memo dated 18.02.2013 issued by Superintendent of Excise, the second appellant herein. Subsequently, a mass petition was submitted that the 'new site' in question was approved in violation of restrictions imposed under rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other intoxicants) Rules 2003 (hereinafter referred to as the rules). On the basis of such complaint an enquiry was conducted and thereafter by impugned memorandum dated 06.09.2013, the operation of the foreign liquor shop of the writ petitioner at the 'new site' was directed to be closed with immediate effect. However, liberty was given to the respondent/writ petitioner to submit an application afresh for shifting of his side to a restriction free area. An appeal came to be filed by the writ petitioner to the District Magistrate which went in vain. Finally he chose to challenge the impugned memorandum dated 06.09.2013 in the present writ petition. 2. The writ petition was seriously contested by the respondents not only by submitting arguments but also by filing affidavit-in-opposition. The official appellants relied on a report dated 29.08.2013 of the Additional Superintendent of Excise Medinipur (West) and Deputy Commissioner and Excise which indicated that the 'new site' was within the restricted area envisaged under rule 8 of the rules. 3. However, the learned Single Judge by order dated 24.12.2013 appointed a Special Officer in order to ascertain status, existence and distance of areas/institutions cited by the appellants for cancellation of license from the site in question. 4. 3. However, the learned Single Judge by order dated 24.12.2013 appointed a Special Officer in order to ascertain status, existence and distance of areas/institutions cited by the appellants for cancellation of license from the site in question. 4. Pursuant to such direction a report dated 08.11.2014 was submitted by the Special Officer wherein it was mentioned that the 'new site' was within 1000 feet of the following institutions namely Lion K.G. School, Netaji Subhas Open University, Spandan Hospital and Ex-service man's Contributory Health Service Poly Clinic (OPD) but was at a distance of 1100 feet from a Mazar. Another report dated 14.11.2014 submitted by Superintendent of Excise, Paschim Medinipur was also available upon which the appellants placed reliance wherein it was stated that the Mazar was within 1000 feet from the "new site". 5. After hearing both the parties, the learned Single Judge by Judgment and order dated 25.11.2014 quashed impugned memorandum inter-alia, holding that the 'new site' did not fall within restricted area as the Mazar was beyond 1000 feet from the 'new site' and the other institutions namely Lion K.G. School, Netaji Subhas Open University, Spandan Hospital and Ex-service man's Contributory Health Service Poly Clinic (OPD) were not institutions in respect of which the restrictions under rule 8 of the rules would come in the way. 6. Aggrieved by the same the present appeal is initiated at the instance of the State. On behalf of the appellants, learned Advocate General Mr. Jayanta Kumar Mitra assisted by Mr. Mazumdar and Mr. Dutta submitted arguments. They restricted their challenge to the 'new site' on the premise that the same was within 1000 feet from Spandan Hospital, 101 bedded Private Hospital accessible to general public at large. According to learned Advocate General the word "hospital for public use" in rule 8 cannot be read in a restricted sense to mean a public hospital as a charitable hospital alone. To substantiate his contention, reliance is placed on definition of the word "public use" in Wharton's Concise Law Dictionary, 15th edition pagte-847 and Black's Law Dictionary, 10th edition page-1775. Reliance was also placed on State of Kerala and Others v. Kandath Distilleries reported in (2013) 6 SCC 573 to emphasise that the respondent writ petitioner cannot claim a fundamental right to trade in liquor. 7. Per contra, Mr. Reliance was also placed on State of Kerala and Others v. Kandath Distilleries reported in (2013) 6 SCC 573 to emphasise that the respondent writ petitioner cannot claim a fundamental right to trade in liquor. 7. Per contra, Mr. Dutta learned Senior Counsel arguing for respondent/writ petitioner argued that appellant No. 2 had initially approved the 'new site', therefore, he had no power to review its own order. Without prejudice to above submission, he further argued that Spandan Hospital cannot be treated as a "hospital for public use" as it is a private hospital where people could avail of medical services only for a consideration. He also places reliance on the definition of the word "public" in the Advanced Law Lexicon 3rd edition page-3823, Black's Law Dictionary 10th edition page-1422 and also definition of the word "public hospital" in Advanced Law Lexicon 3rd edition page-3831 and Stroud's Judicial Dictionary of Words and Phrases 3rd edition, page-2379 and 2380. For this he places on reliance on the definition of the word 'use' in the aforesaid legal dictionaries and also relies upon the decision in State of U.P v. Ramgya Sharma reported in AIR 1966 SCC 78. 8-9. Learned Counsel Mr. Dutta placing reliance on the aforesaid authorities strenuously contends that the word "hospital for public use" must mean public hospital owned and managed by State with public funds and not private one. Upon hearing the arguments of learned Advocate General and Senior Counsel Mr. Dutta the following issues arise for our consideration. i) Whether appellant No. 2 had the power to reconsider/review its own decision dated 18.02.13 and ii) Whether Spandan Hospital which is a private hospital accessible to general public would fall within the expression "hospital for public use" as envisaged under rule 8 of the rules. 10. Coming to the first issue, we notice that after the shifting, the new site was initially approved by order dated 18.02.13. Later a mass representation was received by the appellants complaining that the new site was within the restricted area as envisaged under rule 8 since various medical and educational institutions including place of public worship situated with in 1000 feet of the said site. 11. Later a mass representation was received by the appellants complaining that the new site was within the restricted area as envisaged under rule 8 since various medical and educational institutions including place of public worship situated with in 1000 feet of the said site. 11. As per rule 4 of the West Bengal Excise (shifting of existing site or change of premises of excise license) rules 2009 (hereinafter referred to as rule 2009) that no permission for shifting of existing shop to a proposed of new site shall be recommended and approved if the proposed new site attracts restrictions imposed under rule 8 of the rules. 12. Procedure contemplated for shifting of existing site as per rule 4 of 2009 reads as under: Procedure of shifting: 4.1. An application shall be made by a licensee with requisite court fee stamp along with the original copy of Treasury Challan showing deposit of non-refundable application fee applicable to the initial grant of that category of license in the proposed area in this regard, to the Collector, for change of site or shifting of existing licensed premises i) within the same excise district or ii) to a neighbouring excise district specifying clearly the reasons for such shifting. Provided that no non-refundable application fee shall be payable in cases when: 4.1.1. the proposed site or premises where the license will operate after shifting is within the excise district where the existing site of the license is located and the Collector is satisfied that such change or shifting is necessary in the interest of the people residing in the area or that such change or shifting is due to change of existing rules or procedures, which are beyond the control of the licensee. 4.1.2. non-refundable application fee has already been paid in connection with the first application and an alternative site within the same excise district is offered by the applicant if it transpires, on enquiry, that the site offered earlier does not conform to the requirements of existing rules and regulations. 4.2. 4.1.2. non-refundable application fee has already been paid in connection with the first application and an alternative site within the same excise district is offered by the applicant if it transpires, on enquiry, that the site offered earlier does not conform to the requirements of existing rules and regulations. 4.2. On receipt of the application referred in sub-rule 4.1, the Collector shall be the competent authority to consider the application of shifting of an existing site for the retail sale of liquor and certain other intoxicants when the proposed site falls within the same ward or Gram Panchayat where the existing site is located and the proposed site is objection free in terms of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other intoxicants) Rules 2003 as amended. 4.4. On receipt of application with all necessary documents and opinion of the Collector, the Excise Commissioner shall consider the application and 4.4.1. in case of the proposed shifting of excise license within the same district, the Excise Commissioner shall forward the same with his opinion to the State Government for consideration. 4.4.2. in case of shifting to a neighbouring excise district, the Excise Commissioner shall consider the prayer and recommendation of the Collector in whose jurisdiction the existing site falls and shall send the same to the Collector of the excise district, under whose jurisdiction the proposed site falls, for processing the matter under clause 4.3.1 and 4.3.2 of sub-rule 4.3 above. On receipt of application, documents and opinion of the Collector, under whose jurisdiction the proposed site falls, the Excise Commissioner shall forward the same to the State Government for consideration. 13. Perusal of the aforesaid rule clarifies the position that any approval to shift a new site granted under the said rule in derogation of restrictions imposed under rule 8 of the rules is illegal and non-est in the eye of law. Hence, when mass representation was addressed to the appellant authorities pointing out such violation on the part of the authorities, it was incumbent upon the appellants to make a due enquiry into the complaint so as to arrive at a conclusion as to whether the new site attracts the restrictions imposed under rule 8 of the rules or not. 14. Hence, when mass representation was addressed to the appellant authorities pointing out such violation on the part of the authorities, it was incumbent upon the appellants to make a due enquiry into the complaint so as to arrive at a conclusion as to whether the new site attracts the restrictions imposed under rule 8 of the rules or not. 14. Such exercise of power on the part of the appellants cannot be said to be at any stretch of imagination as beyond their jurisdiction or authority vested in law. Apparently it is not a case where appellant No. 2 had reviewed its earlier decisions suo-moto. It was based on a mass petition address to the appellants. That apart, this issue was never raised before the learned Single Judge by the writ petitioner and on the contrary, the respondent writ petitioner had, without demur, participated in the fresh enquiry conducted by the Special Officer as to whether the new site attracts the restrictions stipulated in rule 8 of the rules. In the light of above discussion we are constrained to hold that the issue against the writ petitioner under preliminary objection raised by learned Senior Counsel is answered in the negative. 15. The next issue which falls for our consideration is whether Spandan Hospital construed to be a private hospital accessible to general public would fall within the expression "hospital for public use" as envisaged under rule 8 of the rules. Rule 8 of the rules as under: Restrictions on grant of license at certain new sites: 1. No license for the retail sale of liquor or any other intoxicant at a new site shall be granted where the new site is situated in the vicinity of an educational institution recognised 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. Explanation: i) For the purpose of this rule, the word "vicinity" means a distance of 1000 feet measuring,- (A) where the new site is situated in the part of any building, from the mid-point of the entrance of such building to the mid-point of the entrance of the educational institution, college/institution or traditional place of worship or hospital etc. Explanation: i) For the purpose of this rule, the word "vicinity" means a distance of 1000 feet measuring,- (A) where the new site is situated in the part of any building, from the mid-point of the entrance of such building to the mid-point of the entrance of the educational institution, college/institution or traditional place of worship or hospital etc. as referred to in this sub-rule; or (B) where any educational institution, college/institution, traditional place of worship or any hospital as referred to in this sub-rule is situated in any part of a building, from the mid-point of the entrance of such building to the mid-point of the entrance of the new site; or (C) in any other cases, from to the mid-point of the entrance of an educational institution or any college/institution or traditional places of public worship or hospital as referred to in this sub-rule to the mid-point of the entrance of the new site, along the path which an ordinary prudent person normally takes to reach such new site from such educational institution or college or traditional place of worship or hospital and includes, in case of sub-item (A) the vertical distance to be reckoned from themed-point of the entrance of such building to the floor where such new site is situated, or in case of sub-item (B) the vertical distance to be reckoned from the mid-point of the entrance of such building to the floor where such educational institution, college/institution or traditional places of public worship or any hospital, is situated. [Provided that if a road has to be crossed along the path which an ordinary prudent person normally takes to reach such new site and of the said road is marked by a 'Zebra Crossing' for pedestrians to cross, the said distance shall be measured taking into account the act that an ordinary prudent person, while walking, would have crossed the said road at the point marked by the 'Zebra Crossing' for pedestrians to cross.] [Inserted vide Notification No. 07-EX dated 05.01.2009] (ii) For the purpose of this rule, traditional place of public worship means a place of public worship that is in existence for a period of not less than twenty years, or as per section 5 of the West Bengal Religious Building and Places Act, 1985 (West Ben. Act XXXII of 1985) has taken prior permission of the Collector of the district if the place is outside the jurisdiction of Kolkata, or the Police Commissioner if the place is within the jurisdiction of Kolkata. 2. No license for the retail sale of liquor or any other intoxicant shall ordinarily be granted at any new site in a tribal area. Provided that this sub-rule will not apply to a local area, within which a tourist lodge/spot is situated or within which the headquarters of a block or a sub-division or a police station is located. Note-The provision of rule 8 shall not apply to the licenses mentioned in categories (b), (g), hotels of category 3-Star and above of (j),(l), (m) and (n) of rule 4. (3) No license for retail sale of liquor or any other intoxicants shall be granted at a new site if the new site is situated within 720 ft. from the mid-point of any National Highway/State Highway. Explanation: For the purpose of this rule such part of National Highway/State Highway which are situated within the limits of any Municipal Corporation, City or Town of Municipality or such other authority having population of twenty thousand or more, shall not be treated as restriction. 16. It was consistently argued by the writ petitioner that the word "hospital for public use" must mean a public or Government Hospital rendering charitable services and not a private hospital. 17. In support of such contention, lexo graphical meaning of the words "public hospital, or use" in various law or other dictionaries have been possessed into service by the respondent/writ petitioner as follows: (a) The word "Public" has been defined in Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, page 3823 as: "the body of the public at large; the people of neighbourhood; the community at large; the people; the whole body politic or all the citizens of the State; the inhabitants of a particular place". (b) In the same page, "public" has also been defined as: "The word 'public' has two meanings; a thing may be said to be public when owned by the public; also where its uses are public". (c) Black Law Dictionary, 10th Edition, at page 1422 defines "public" as- "1. The people of the country or community as the whole . 2. (c) Black Law Dictionary, 10th Edition, at page 1422 defines "public" as- "1. The people of the country or community as the whole . 2. A place open or visible to the public " (d) Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, page 3831 defines 'public hospital' as- "A hospital created and endowed by the Government for general charity is a public corporation; and a public hospital may be defined in general as an institution owned by the public and devoted chiefly to public uses and purposes". (e) Strouds Judicial Dictionary of Words and Pharases-3rd Edition at pages 2379 and 2380 inter-alia, defines "Public Hospital" as- "The phrase means a hospital run primarily for ordinary members of the general public as opposed to one run for private profit". (f) The expression "use" has been defined in Advanced law Lexicon by P. Ramanatha Aiyar, 3rd Edition, page 4850 as "The expression 'use' in clause 7 suggests something done positively, for e.g. utilisation or disposal". (g) At page 3854 of the Law Lexicon, the expression "Public Use" has been defined as- "A 'Public Use' must be for the general public or some portion of it and of not a use by or for particular individual or for the benefits of certain estates". 18. On the other hand the learned Advocate General has relied on the definition of "public use" and then as defined in Wharton's Concise Law Dictionary, 15th edition as follows: "Public use, does not mean a general use but a use in public as distinguished from a use that is secret, Carpenter v. Smith, 11 LJ EX 213". 19. The Black's Law Dictionary 10th Edition as follows: "The term 'public use' is misleading, for any use from which the public is not excluded, even though none comes, is held to be public. Similarly, an actual public use of a machine, even though the invention feature be effectively concealed from inspection, is held to be public. It makes no difference whether the patent or other publication is that of the inventor or someone else". Roger Sherman Hoar, Patent Tactics and Law 48 (3rd Edition 1950) (citing Gillman v. Stern, 114 F.2d 28, 31 (2nd Cir. 1940)). 20. It makes no difference whether the patent or other publication is that of the inventor or someone else". Roger Sherman Hoar, Patent Tactics and Law 48 (3rd Edition 1950) (citing Gillman v. Stern, 114 F.2d 28, 31 (2nd Cir. 1940)). 20. By reading aforesaid meanings of various phrases in the dictionaries and other authorities one must bear in mind that they have to be understood with reference to the intention and the purpose for which the rules are brought into effect especially the restrictions with regard to the area. Rule 8 of the rules does not refer to a "public hospital" but it says "hospital for public use". The expression "public" qualifies the word "use" and not "hospital". Bearing in mind such subtle yet clear distinction, we are of the opinion that it is not the nature of the ownership of the hospital but nature and character of its user which is relevant which would determine the applicability of the restriction of rule 8 of the rules. Any hospital, irrespective of its nature of ownership, if accessible to the public at large, it would mean a hospital for public use. Definitely rule 8 does not apply only to hospitals owned by the Government and managed through public funds. It would also apply to any other hospital irrespective of its nature of ownership and management provided every member of the public has a right of access to its services. Mere fact that a member of the public has to pay for such a service would not mean that its facilities are not accessible to the public at large. If one analyses the meaning of the each word referred above technically it may lead to confusion, we have to understand the meaning with reference to the context that is the very purpose of making a provision of law or the rule. We are now concerned with the interpretation of the restrictions referred to in rule 8 of the rules. If we hold that only Government hospitals providing in charitable services hospital loan come within the purview of the restricted area would make the rule nugatory. Therefore, such restrictive definition of the word as contended by the writ petitioner would defeat the very purpose of rule 8 of the rules. If we hold that only Government hospitals providing in charitable services hospital loan come within the purview of the restricted area would make the rule nugatory. Therefore, such restrictive definition of the word as contended by the writ petitioner would defeat the very purpose of rule 8 of the rules. The object of such restriction is to protect the peace and safety of the area where a hospital which is accessible to public at large is situated by prescribing the setting up or establishing of a liquor shop in its vicinity. 21. One has to analyse the entire scenario with reference to the restrictions envisaged under rule 8. From such purposive angle, the nature of ownership of the hospital, be it Government or private, is irrelevant. Therefore accessibility to the public or the people at large is the litmus test. 22. The citation referred to in AIR 1966 SC 78 wherein the Apex Court held that the word "use" must gain its meaning from the context in which it is applied. In view of the aforesaid discussion, we are of the opinion that these authorities are of little assistance to the writ petitioner/respondent. 23. In the light of above reasoning and discussion ideologically and textually we are of the opinion that Spandan Hospital falls within the expression "hospital for public use" under rule 8 and the impugned memorandum dated 06.09.13 directing suspension of the operation from the new site is justified as the same attracts the restriction of rule 8 of the rules. Hence, said order cannot be said to be illegal. I agree. Appeal allowed.