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2016 DIGILAW 51 (CAL)

Bibhas Kumar Das v. State of West Bengal

2016-01-15

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. Re: Can 5752 of 2015 (Condonation of delay) This review application was not filed within the period of limitation. There was 242 days delay in filing the review application. Reason for the delay has been explained by the petitioner in this application for condonation of delay. It is stated therein that being aggrieved by the order passed by the other Division Bench of this Court on 18th September, 2014 in MAT 1628 of 2013, the appellant moved a Special Leave Petition being Special Leave to Appeal (C) No. 7630 of 2015 before the Hon’ble Supreme Court. 2. Ultimately the said Special Leave petition was dismissed as withdrawn on 1st May, 2015. While dismissing the said Special Leave Petition, it was observed by the Hon’ble Supreme Court that if a review application is filed within 30 days from the date of dismissal of the said Special Leave petition, the High Court may not dismiss it on the ground of delay. 3. Admittedly the present review application has not been filed within 30 days from the date of dismissal of the said Special Leave petition by the Hon’ble Supreme Court. The reason which prevented the appellant/petitioner from filing this review application within the time as granted by the Hon’ble Supreme Court has also been explained by the appellant in this application. It is stated therein that the last date within which the review application could have been filed as per the order of the Hon’ble Supreme Court expired on 30th May, 2015, but since the summer vacation of this High Court commenced from 18th May, 2015, the review application could not be filed within the time which was granted to the appellant for filing such review application before this Court. This Court again reopened after summer vacation on 1st June, 2015 and immediately thereafter on 6th June, 2015 certified copy of the order under review was applied for and immediately after obtaining the certified copy of the same on 15th June, 2015, the review application was filed before this Court on 22nd June, 2015. 4. Thus, we find that the reason for the delay has been sufficiently explained by the appellant/petitioner in this application for condonation of delay. Accordingly, delay in filing this review application is condoned. Let the review application now be registered. 5. 4. Thus, we find that the reason for the delay has been sufficiently explained by the appellant/petitioner in this application for condonation of delay. Accordingly, delay in filing this review application is condoned. Let the review application now be registered. 5. The application for condonation of delay being CAN 5752 of 2015 is thus disposed of. Re: R.V.W. 140 of 2015 6. Immediately after the delay in filing this review application was condoned, we were invited by the learned counsel appearing for the parties to consider the review application on merit. Accordingly by consent of the parties, we have decided to consider the review application on merit. 7. Heard the learned counsel appearing for the parties on the merit of the review application. 8. The order passed by the Division Bench of this Hon’ble Court on 18th September, 2014 in MAT 1628 of 2013 is under review in this application. The appellant’s application for grant of licence for operating Foreign Liquor ‘On Shop’ was rejected by the Collector on 10th October, 2011. The legality of the said order was challenged by the appellant by filing a writ petition being W.P.No. 19420(W) of 2011 which was dismissed by a learned Single Judge of this Court on 6th September, 2013. 9. Challenging the legality and/or propriety of the said order of the learned Single Judge of this Court, an intra-court appeal was filed being MAT 1628 of 2013. 10. In course of hearing of the said appeal, a question came up for consideration before the Appeal Court as to the applicability of the amended provision of the West Bengal Excise (Selection of New Sites and Grant of License for retail sale of Liquor and certain other intoxicants) Rules, 2003 which was notified on 20th November, 2008 to the appellant’s application. It was contended that since the amended provision of the said Rules came into operation subsequent to the filing of the petitioner’s application for such licence, the fate of the petitioner’s application ought not have been decided by applying the amended provision of the said Rules. 11. Ultimately it was decided by the Appeal Court that the amended provision of the said Rules was applicable to the pending application and after applying the provision contained in the amended Rules, the appellant’s application for grant of licence was rejected by the Appeal Court. 11. Ultimately it was decided by the Appeal Court that the amended provision of the said Rules was applicable to the pending application and after applying the provision contained in the amended Rules, the appellant’s application for grant of licence was rejected by the Appeal Court. Subsequently, the appellant has filed the present review application seeking for review of the said order passed by the learned Appeal Court. 12. Mr. Chaturvedi, learned advocate appearing for the appellant/petitioner submits that even admitting that the fate of the writ petitioner’s application could have been decided with reference to the amended provision of the said Rules, still then, according to him, in view of the provision contained in the explanation added to sub-rule (3) of Rule 8 of the said Rules, the petitioner’s application for grant of such licence ought not to have been rejected by referring to the distance factor as contained in Rule 8(3) of the said amended Rules. 13. Since the fate of the review application depends upon the interpretation of the provision contained in Rule 8(3) of the said amended Rules, we feel it necessary to reproduce the said Rule hereunder :- “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 feet 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.” 14. On perusal of the said amended Rules, we find that licence for retail sale of liquor or any other intoxicants cannot be granted at a new site if the new site is situated within 720 feet from the mid point of any National Highway/State Highway. The Collector while dismissing the petitioner’s application for grant of such licence, mentioned in his order that the place where the petitioner wanted to open an ‘On Shop’ for retail sale of liquor was within the restricted area of 720 feet from the mid point of the National Highway. 15. Mr. The Collector while dismissing the petitioner’s application for grant of such licence, mentioned in his order that the place where the petitioner wanted to open an ‘On Shop’ for retail sale of liquor was within the restricted area of 720 feet from the mid point of the National Highway. 15. Mr. Chaturvedi submits that the distance restriction which is imposed in Rule 8(3) of the said amended Rules cannot be applied in this case, as the provision contained in the explanation is satisfied in the present case. According to him, since the Gram Panchayat where the appellant wants to open ‘On Shop’ for retail sale of Foreign Liquor has population of more than twenty thousand, the distance restriction imposed in Rule 8(3) of the said amended Rules cannot stand in the way of granting licence in favour of the appellant. 16. In support of his contention that the concerned Gram Panchayat is having more than twenty thousand population, he has referred to a document issued by the Savapati, Mahishadal Panchayat Samity on 24th November, 2009 wherein Savapati certified that the present population of Itamogra-I Gram Panchayat under Mahishadal Block is about twenty thousand during the year 2009-2010 taking into account 2% increase in population per year from the last census. This is a solitary document which is relied upon by the appellant in support of his contention that the condition mentioned in the explanation having been satisfied in the present case, the distance restriction imposed under Rule 8(3) of the said amended Rules cannot be applied. 17. We have considered the said document very carefully and hold that even the said document does not disclose that the population of the said Gram Panchayat at the material time was twenty thousand or more. The expression “about” used before the figure twenty thousand raises doubt about satisfaction of the condition for attraction of the provision contained in the explanation as there is no clear indication in the said Certificate that the said Gram Panchayat has twenty thousand population or more. Since exact figure of population was not available, the expression “about” was issued by the issuing authority. 18. That apart, we have found another document issued by the Block Development Officer, Mahishadal on 23rd August, 2010 wherein it was mentioned that the said Gram Panchayat viz. Itamogra-I Gram Panchayat has 17,273 population as on 2010. Since exact figure of population was not available, the expression “about” was issued by the issuing authority. 18. That apart, we have found another document issued by the Block Development Officer, Mahishadal on 23rd August, 2010 wherein it was mentioned that the said Gram Panchayat viz. Itamogra-I Gram Panchayat has 17,273 population as on 2010. If this document is also taken into consideration, we have no hesitation to hold that the Gram Panchayat where the appellant wanted to open the ‘On Shop’ for retail sale of Foreign Liquor does not have the population of twenty thousand or above and as such, we hold that the explanation added to Rule 8(3) of the said amended Rules is not satisfied and as a result, the distance factor as mentioned in Rule 8(3) of the said amended Rules squarely applies in the present case. Though the amended Rules had no retrospective effect but we do not find any wrong in the order under review wherein it was held that the amended Rules can be applied in deciding the pending applications. 19. We, thus, do not find any reason to alter and/or modify the order which is sought to be reviewed by the appellant/petitioner in the instant application. 20. The review application is thus dismissed.