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2016 DIGILAW 648 (CAL)

Arindam Singh Roy v. State of West Bengal

2016-08-17

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : Ashis Kumar Chakraborty, J. 1. In this writ petition the petitioner has prayed for a writ of mandamus directing the respondents to grant permanent Bar License, for his restaurant namely, Nilanjana Multicuisine Restaurant situate at 24 Garia main Road, Tentultala, Kolkata- 700 084 (hereinafter referred to as "the said restaurant"). The petitioner has also prayed for a writ of mandamus directing the respondent Nos. 1 and 2, being the State of West Bengal represented through the Principal Secretary, Department of Excise and Finance (Revenue) Department and the Commissioner of Excise, respectively to immediately issue temporary and permanent Bar License to him in respect of the said restaurant. 2. The facts of the case are that by a registered conveyance dated November 17, 2004 the petitioner, along with her mother purchased 1290 square feet super built up area, comprising a portion of the first floor of the four storied building situate at Premises No. 24, Garia Main Road, Kolkata-700084 for the purpose of setting up a restaurant -cum- bar. After purchasing a portion of the said of the first floor of the said building, he opened the said restaurant thereat. 3. On May 16, 2005 the petitioner filed an application before the respondent No. 4, the Superintendent of Excise, Government of West Bengal for obtaining permanent Bar License to his said restaurant. Although in between November, 2005 and till January 01, 2007 the respondent No. 4 had issued temporary Bar License to the said restaurant, but no permanent Bar License was issued to the petitioner. On August 07, 2006 the Officers of the Sonarpur Police Station suddenly conducted a raid in the said restaurant of the petitioner and seized few bottles of liquors which, according to the petitioner, were used for the personal consumption of his father who was compelled to reside at the said restaurant premises in view of a robbery that had taken place at the said restaurant premises. The said seizure led to the registration of a Sonarpur Police Station Case No. 254 of 2006 which was charge-sheeted and is pending before the learned Additional Chief Judicial Magistrate, Baruipur. Apart from the said 1290 Sq.feet of the first floor of the said building the remaining portion of first floor and the second, third and fourth floor of the said building, comprise seven flats owned by various persons including the respondent Nos. Apart from the said 1290 Sq.feet of the first floor of the said building the remaining portion of first floor and the second, third and fourth floor of the said building, comprise seven flats owned by various persons including the respondent Nos. 6 and 7 and the same are used for their residential purpose and the owners of the said flats of the building raised objection to the various authorities to the prayer of the petitioner for obtaining Bar License at his said restaurant. According to them, the concerned Municipality sanctioned the building plan of the said building that all the eight flats are for residential purpose only. Even the Officer-in-Charge of Sonarpur Police Station requested the Superintendent of Police, South 24 Parganas to move the License granting authority not to issue any Bar License to the said restaurant of the petitioner, as he apprehended that such step could lead to law and order problems and the Superintendent of Police, South 24 Parganas duly intimated the matter to the collector, South 24 Parganas. 4. Since the respondents Excise Authorities were withholding the issuance of permanent Bar License to the said restaurant the petitioner filed a writ petition being W.P. 18939 (W) of 2007 before this Court. 5. Even the residents of the of the said building filed a writ petition, being W.P. No. 25343(W) of 2007 for obtaining a direction against the Excise Commissioner and other authorities not to grant any Bar License to the said restaurant of the petitioner. By an order dated April 9, 2008, passed in both the writ petitions being W.P. 18939(W) of 2007 and W.P. 25343(W) of 2007 a learned Single Judge of this Court held that whether or not a License can be issued in favour of Arindam Singha Roy, the petitioner in the present writ petition, has to be decided by the Excise Commissioner and not by the Writ Court. By the said order dated April 9, 2008 the learned Single Judge disposed of the both writ petitions by directing the Excise Commissioner, the respondent No. 2 in the present writ petition, to decide the issue regarding the grant of License as prayed for by the petitioner in the present writ petition and opposed by the residents of the said building. The respondent No. 2 Excise Commissioner held the hearing on April 28, 2008 which was duly attended by the writ petitioner as well as the representative of the residents of the said building. 6. After hearing the writ petitioner and the residents of the said building, the respondent No. 2 found that the residents of the said building in which the said restaurant of the petitioner is located have serious objection to the grant of any Bar License inside the residential complex, the Officer-in-Charge of the Sonarpur Police Station has requested the Superintendent of Police, South 24 Parganas not to issue any Bar License to the said restaurant, as he apprehended that such step could lead to law and order problems and the same has been intimated by the Superintendent of Police to the collector of the South 24 Parganas. The respondent also found that on various raids, being conducted of the restaurant, the petitioner was apprehended for selling liquor without License and there are two temples namely, Mahamaya Temple and the other Shiva Temple which are traditional places of worship situated within a distance of 1000 feet from the said restaurant. On these findings, by an order dated May 05, 2008 the respondent No. 2 rejected the prayer of the petitioner for issuance of a Bar License to his said restaurant. In this regard, the relevant extract of the order dated May 05, 2008 passed by the respondent No. 2 is set out below: "Considered the submissions made on behalf of both the parties. According to Rule 8 of the Rules made under the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain other Intoxicants) Rules, 2003, published under Notification No. 800-Ex dated 29.7.2003 as subsequently amended, no License can be granted within a distance of 1000 feet from a traditional place of worship or Educational Institution and etc. as prescribed in the said rules. The site offered by Sri Arindam Singha Roy is not free from restrictions as per law. The conduct of the Licensee is also not free from objections. It appears that he is a habitual violator of the Bengal Excise Act, 1909, as he has been detected to possess for sale Foreign Liquor, by the Officers of Sonarpur Police Station on as many as two occasions. The conduct of the Licensee is also not free from objections. It appears that he is a habitual violator of the Bengal Excise Act, 1909, as he has been detected to possess for sale Foreign Liquor, by the Officers of Sonarpur Police Station on as many as two occasions. Besides a Bar-cum-Restaurant License cannot be granted in a purely residential area where the residents have serious objections. The issue of temporary License at the said site cannot pave the way for grant of a regular Excise License at the said site in the face of stiff opposition from the locality for fear of affecting the atmosphere of the locality adversely. I, therefore, direct the Collector, South 24-Parganas to reject the prayer of Sri Arindam Singha Roy as submitted before the said Collector, South 24-Parganas for grant of a Bar-cum-Restaurant at the said Arghya Apartment under P.S. Sonarpur." 7. Against the above order passed by the respondent No. 2 the petitioner filed an appeal, under Section 8 of the Bengal Excise Act, 1908, before the Principal Secretary, Excise Department, (hereinafter referred to as "the Appellate Authority"). Before the Appellate Authority, the advocate appearing for the petitioner confirmed that the Trade License in respect of the said restaurant had not been renewed by the concerned authority. By an order dated September 18, 2008 the Appellate Authority dismissed the appeal filed by the appellant on the ground that the residents of the building raised serious objection to the grant of Bar License to the said restaurant and in view of provisions contained in para (c) of Rule 62 of the Consolidated Rules made under Section 85 of the Bengal Excise Act, 1909 permanent Bar License should not be granted to the said restaurant. The appellate authority also upheld the ground of rejection recorded by the respondent No. 2 Excise Commissioner that the Officer-in-Charge of Sonarpur Police Station apprehended law and order problem in the locality and there are two traditional places of worship, namely, Mahamaya Mandir and Shiba Mandir within the distance of 1000 feet from the said restaurant. 8. The appellate authority also upheld the ground of rejection recorded by the respondent No. 2 Excise Commissioner that the Officer-in-Charge of Sonarpur Police Station apprehended law and order problem in the locality and there are two traditional places of worship, namely, Mahamaya Mandir and Shiba Mandir within the distance of 1000 feet from the said restaurant. 8. From a bare reading of the writ petition, it is evident that the petitioner has not claimed any relief for setting aside of the above orders passed by the respondent No. 2 Excise Commissioner and the Appellate Authority rejecting his prayer for grant of permanent License and upholding the objection raised by the residents of the said building to the grant of Bar License to the said restaurant. The petitioner has, however, prayed for relief already recorded at the outset of this judgment. Although the petitioner has not challenged the said orders dated May 5, 2008 and September 18, 2008 passed by the respondent No. 2 Excise Commissioner and the Appellate Authority, respectively when the present writ petition was moved on November 26, 2009 a learned Single Judge of this Court passed an ad interim order directing the State respondents to consider the prayer of the petitioner for granting temporary License for selling liquor strictly in accordance with law. 9. In the writ petition the petitioner has impleaded two of the flat owners of the said building as the respondent Nos. 6 and 7 and they have contested the writ petition by filing a joint affidavit in opposition. In their said affidavit the respondent Nos. 6 and 7 have raised serious objection to the relief claimed by the petitioner in the writ petition and have prayed for dismissal of the writ petition. 10. 6 and 7 and they have contested the writ petition by filing a joint affidavit in opposition. In their said affidavit the respondent Nos. 6 and 7 have raised serious objection to the relief claimed by the petitioner in the writ petition and have prayed for dismissal of the writ petition. 10. While this writ petition was pending disposal for some time, on June 6, 2016 the petitioner filed an application, being CAN 5441 of 2016 alleging that during the pendency of the writ petition, the Additional District Magistrate & District Land & Land Reforms Officer had requested the Block Land and Land Reforms Officer, Sonarpur, South 24-Parganas to depute a person to ascertain the distance between the said restaurant of the petitioner and the said Mahamaya temple and thereafter as the Revenue Inspector, Sonarpur filed his report before the Block Land and Land Reforms Officer, Sonarpur to the effect that on inspection he found the distance between the said restaurant of the petitioner and the said Mahamaya Temple is 1462 feet (One Thousand Four Hundred Sixty-two feet). Relying upon the said report of the Revenue Inspector in the said application the petitioner has prayed for an order directing the respondent No. 2 Commissioner of Excise to immediately grant a permanent Bar License to his said restaurant. 11. From the documents disclosed in the said application it appears that by an order dated March 30, 2010, the respondent No. 3 Additional District Magistrate (General) also rejected the prayer of the petitioner for temporary Bar License on the ground that the Deputy Excise Collector, Baruipur Range in her report had categorically mentioned about the existence of the said Mahamaya Temple as a traditional place of public worship, being located within 1000 feet distance from the said restaurant. The petitioner has not challenged the said order dated March 3, 2010 passed by the respondent No. 3. 12. The only ground urged by Mr. The petitioner has not challenged the said order dated March 3, 2010 passed by the respondent No. 3. 12. The only ground urged by Mr. Supriya Bose, learned senior advocate appearing for the petitioner was that in view of the report of the Revenue Inspector dated May 20, 2015 that the distance between the said restaurant and the said Mahamaya Temple is 1462 feet, the grant of permanent Bar License to the said restaurant of the petitioner cannot be withheld by the respondents and as such this Court should pass an order directing the concerned respondent to issue the Bar License to the said restaurant of the petitioner. 13. However, Mr. Anant Kumar Shaw, learned advocate representing the private respondent Nos. 6 and 7, being the owners of two flats of the said building in which the said restaurant is located submitted that none of the said orders dated May 5, 2008 and September 8, 2008 passed by the respondent No. 2 Excise Commissioner and the Appellate Authority respectively suffers from any infirmity and as such the petitioner is not entitled to obtain any order as prayed for, either in the writ petition or in the said application, being CAN 5441 of 2016. 14. Mr. Sabyasachi Roy Choudhury, learned advocate representing the State respondents, including the respondent Nos. 1 and 2 also submitted that both the orders dated May 5, 2008 and September 8, 2008 are well reasoned orders, not vitiated by any illegality and as such the petitioner cannot obtain any order, either in the writ petition or in the application CAN 5441 of 2016, for obtaining Bar License to his said restaurant. 15. I have considered the materials on record and the submissions made by the learned counsel appearing for the respective parties. In the present case, being order dated April 9, 2008 passed in the writ petitions in W.P. 18939(W) of 2007 and W.P. 25343(W) of 2007 a learned Single Judge of this Court held that whether or not the Bar License issued in favour of the petitioner has to be decided by the Excise Commissioner, the respondent No. 2 in this writ petition. After considering all the facts of the case and the documents on record, by the said order dated November 5, 2008 the respondent No. 2 Excise Commissioner rejected the prayer of the petitioner for grant of permanent Bar License on the grounds that according to Rule 8 under the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Spirit and Certain Other Intoxicants) Rules, 1993 as subsequently amended by Notification No. 800-Ex dated July 29, 2003 no License can be granted within a distance of 1000 feet from a traditional place of worship and in the present case there are two traditional places of worship namely, the said Mahamaya Temple and the said Shiva Temple which are situated within the distance of 1000 feet from the said restaurant, the petitioner is a habitual violator of the Bengal Excise Act, 1909 and the residents of the locality have raised a serious objection to the grant of such Bar License to the said restaurant. The petitioner carried the decision dated May 5, 2008 passed by the respondent No. 2 to the Appellate Authority, by preferring an appeal under Section 8 of the Bengal Excise Act, 1909. After considering all the facts of the case, the materials on record, as also the relevant provisions of law, the Appellate Authority affirmed all the findings, as well as the decision of the respondent No. 2 and dismissed the appeal filed by the petitioner. By the order dated September 18, 2009 the Appellate Authority affirmed the finding of the respondent No. 2 in its order dated May 5, 2008 that there are two traditional places of worship namely, the said Mahamaya Temple and the said Shiva Temple situated within the distance of 1000 feet from the said restaurant, the police authority had also raised objection to the grant of Bar License to the said restaurant on their apprehension that such step could lead to law and order problem in the locality and the serious objection raised by the residents of the said building. While upholding the objection raised by the residents of the said building, the Appellate Authority also considered the provisions contained in para (c) of Rule 62 of the consolidated rules framed under Section 85 of the Bengal Excise Act which is set out hereinbelow: "62. While upholding the objection raised by the residents of the said building, the Appellate Authority also considered the provisions contained in para (c) of Rule 62 of the consolidated rules framed under Section 85 of the Bengal Excise Act which is set out hereinbelow: "62. Principles to be observed in granting licenses for liquor shop.-- 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) .............................. (b) ............................... (c) a liquor shop should never occupy a position to which the near neighbours object on grounds which, upon inquiry, appear to by sufficient and free from malice or ulterior motives." 16. In the present case, by the said order dated April 9, 2008 a learned Single Judge of this Court held that it is the respondent No. 2, Excise Commissioner who is to decide whether or not the Bar License can be granted to the said restaurant of the petitioner and the decision of the respondent No. 2 not to grant Bar License to the petitioner was affirmed by the Appellate Authority on the grounds recorded above. The petitioner has not claimed any relief for setting aside of the order dated September 18, 2008 passed by the Appellate Authority affirming the said order dated May 5, 2008 passed by the respondent No. 2 Excise Commissioner. Even during the course of hearing of the writ petition, learned counsel appearing for the petitioner could not point out that the decision of either the respondent No. 2 or the Appellate Authority is vitiated by any perversity or illegality. For all these reasons, there is no scope to entertain the prayer of the petitioner for grant of Bar License to his said restaurant. 17. Until the order passed by the appellate authority affirming the decision of the respondent No. 2 Excise Commissioner is set aside on any ground, there was no scope for Superintendent of Excise, South 24 Parganas to reverify the distance between the said restaurant of the petitioner and the said Mahamaya Temple. 17. Until the order passed by the appellate authority affirming the decision of the respondent No. 2 Excise Commissioner is set aside on any ground, there was no scope for Superintendent of Excise, South 24 Parganas to reverify the distance between the said restaurant of the petitioner and the said Mahamaya Temple. In view of the fact that the orders dated May 05, 2008 and September 08, 2008 passed by the respondent No. 2 Excise Commissioner and the Appellate Authority respectively, suffer from no legal infirmity and have attained finality, the communication dated May 14, 2015 issued by the Superintendent of Excise, South 24-Parganas, to the Additional District Magistrate (LR), Alipore, the letter dated May 21, 2015 issued by Additional District Magistrate to the Block Land & Land Reforms Officer, Sonarpur and the report of the Revenue Inspector dated June 29, 2015, being Annexures - "A-3" to "A-4" to the application CAN 5441 of 2016 are quashed. 18. Before parting with the matter, it may be pointed out that the ground urged by the petitioner for obtaining Bar License for his said restaurant as stated in paragraph 9 of the writ petition and Ground V is that there are 14 restaurants in the city of Kolkata who are enjoying the permanent Bar Licenses by violating the laid down Rules of Bengal Excise Act. This is how the petitioner has sought to make out a case of discrimination and violation of his fundamental right under Article 14 of the Constitution against the respondents. I am afraid that it is well settled that guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. Article 14 of the Constitution cannot be invoked for perpetuating illegality. To put it differently, an illegal or wrong order/decision passed in one case cannot be made the basis for compelling a public authority to pass similar decision/order in other cases. Authorities for this view can be found in the decisions of the Supreme Court in the cases of Gursharan Singh v. New Delhi Municipal Committee reported in (1996)2 SCC 459 and State of M.P. v. Ramesh Chandra Bajpai reported in (2009) 13 SCC 635 . 19. For all the reasons as aforesaid, I do not find any merit either in the writ petition or in the application, being CAN 5441 of 2016. 19. For all the reasons as aforesaid, I do not find any merit either in the writ petition or in the application, being CAN 5441 of 2016. Accordingly, the writ petition, being W.P. 10600(W) of 2009 as well as the application, being CAN 5441 of 2016 stand rejected. The interim order dated November 26, 2009 also stands vacated. 20. However, there shall be no order as to costs. 21. Let urgent certified copy of this judgment, if applied for, be made available to the parties upon compliance of all requisite formalities.