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2018 DIGILAW 379 (CAL)

Sumita Dutta v. Principal Secretary of Excise

2018-05-16

ARIJIT BANERJEE, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This mandamus appeal is directed against an order dated 28th July, 2017 passed by the learned Single judge of this Court in a writ petition being W.P. No. 31007 (W) of 2014 filed by the respondent nos. 4, 5 and 6 herein. 2. The impugned order was passed in the following set of facts. 3. The appellant herein made an application for grant of licence for operating a liquor "On Shop" under the Bengal Excise Act, 1909 from his rented premises at Mandeville Gardens on 10th March, 2004. The appellant’s said application was considered by the concerned authority under the said Act in the light of the direction passed by a learned Single Judge of this Court on 11th October, 2004 in a writ petition being W.P. No. 17283 (W) of 2004 filed by the private respondents herein. Prayer for grant of licence for running such shops by the petitioners at the said premises was allowed by the concerned authority vide order dated 30th December, 2009, by ignoring the objection of the private respondents being the co-owners of the premises who refused to give consent for running the said business by the petitioner from their premises. 4. Being aggrieved by the said order, the private respondent herein preferred an appeal before the Appellate Authority which dismissed the said appeal on 10th August, 2012. The revisional application which was directed against the said order of the Appellate Authority was also dismissed by the Revisional Authority vide order dated 10th July, 2013. 5. The present writ petition was directed against the said order of the Revisional Authority passed on 10th July, 2013. The revisional application which was directed against the said order of the Appellate Authority was also dismissed by the Revisional Authority vide order dated 10th July, 2013. 5. The present writ petition was directed against the said order of the Revisional Authority passed on 10th July, 2013. The private respondents herein being the writ petitioners challenged the legality and/or propriety of the said order of the Revisional Authority by contending that the order passed by the authorities at various stages under the said Act granting licence for running liquor ‘On Shop’ from their premises cannot be sustained in law, as such order was passed without taking into consideration, the restrictive clause contained in the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 which was in operation on the date when order was passed by the concerned authority granting licence to the appellant herein permitting him to run liquor "On Shop" from the private respondent’s premises at Mandeville Gardens. 6. In this context a question came up for consideration before the learned Writ Court as to which one of the two Rules would apply, i.e. the un-amended Rules which was in force on the date of submission of such application by the appellant seeking grant of licence for running liquor "On Shop" from the writ petitioners’ premises or the amended Rules of 2003 which was in operation on the date when the order permitting the appellant to run such liquor "On Shop" from the petitioners’ premises was in force. 7. Fact remains when the appellant applied for grant of such licence before the concerned authority in 2003 Rule 8 of the said Rules prohibited grant of licence for retail sale of liquor or any intoxicants at a new site where the new site was situated in a “vicinity” of an educational institution recognized by the State Government or the Central Government or any college or institution affiliated to any University established by law, traditional place of public worship and hospital for public use. Under the said rule, the “vicinity” was construed to be a distance of 300 ft. Rule 8 of the said Rules of 2003 was amended in 2004 which became effective from 2nd April, 2004 whereby the term “vicinity” was modified to a mean distance of 1000 ft. 8. Under the said rule, the “vicinity” was construed to be a distance of 300 ft. Rule 8 of the said Rules of 2003 was amended in 2004 which became effective from 2nd April, 2004 whereby the term “vicinity” was modified to a mean distance of 1000 ft. 8. Admittedly, on the date when the application was submitted by the appellant herein, un-amended Rule i.e. the restrictive distance of 300 ft. was in force. However, on the date when order was passed by the concerned authority granting licence to the appellant herein permitting him to retail sale of liquor "On Shop" from the private respondents’ premises, the amended Rules introducing the restrictive distance of 1000 ft. was in force. 9. The concerned authority allowed the appellant’s prayer for grant of such licence in the light of the un-amended provision of the said Rule as the said Rule was in force on the date of submissions of such application by the appellant before the concerned authority. 10. In this factual matrix a question came up for consideration before the Writ Court as to which of the aforesaid Rules i.e. the un-amended Rule or the amended rule was required to be followed by the concerned authority while considering the appellant’s prayer for grant of such licence. 11. The learned Single Judge of this Court held that the concerned authority ought to have considered the appellant’s prayer for grant of such licence in the light of the amended provision of the said Rules as it is the settled law of land that the Rules which were prevalent on the date of granting such licence is required to be followed by the concerned authority. The learned Single Judge of this Court thus set aside the order of the Revisional Authority and directed the Revisional Authority to revisit the issue in the light of the observations made by His Lordship in the said order after affording reasonable opportunity of hearing to the writ petitioner namely the private respondents herein and the private respondent in the writ petition namely the appellant herein. The Revisional Authority was requested to decide the said issue within a period of eight weeks from the date of communication of the said order. The Revisional Authority was requested to decide the said issue within a period of eight weeks from the date of communication of the said order. The Revisional Authority was also directed to pass a reasoned order in support of his conclusion with a further direction upon him to communicate his reasoned order to the parties immediately after the decision is taken by the Revisional Authority. 12. The legality and/or propriety of the said order passed by the learned Single Judge of this Court is under challenge in this mandamus appeal. 13. Thus only one issue which arises for consideration on the contentions urged by the parties in this appeal, runs as follows:- Whether an application for grant of such licence should be considered with regard to the Rules as they existed when the application was made or in accordance with Rules in force on the date of consideration? 14. The said question is no longer res intrega as an identical issue which was raised before the Supreme Court in the case of State of Kerala and Another vs. Six Holiday Resorts Private Limited and Others, 2010 (5) SCC 186 was decided by the Hon’ble Supreme Court holding that “where licence sought related to the business of liquor, as the State has exclusive privilege and its citizens had no fundamental right to carry on business of liquor, there was no vested right in any applicant to claim such licence and all applications should be considered with reference to the law prevailing as on date of consideration and not with reference to the date of submission of the application.” It was further held therein that whether the issue relates to amendment to Rules or change in policy, there will be no difference in principle. Identical view was expressed by the Hon’ble Supreme Court on the same issue in the case of Somdev Kapoor vs. State of West Bengal and Others, (2014) 14 SCC 486 wherein it was held that it would the significant to state that as per the law laid down by this Court, the Rules which are prevalent on the date when the application is considered are to be applied and not the Rules in force on the date when the application was made. 15. 15. Thus, if we apply the said principle laid down by the Hon’ble Supreme Court to the instant case, we have no hesitation to hold that the learned Single Judge of this court was absolutely justified in passing the impugned order in the facts of the instant case. 16. Mr. Arunava Ghosh, learned counsel appearing for the appellant, however, tried to impress upon us that the principle laid down in the aforesaid decision of the Hon’ble Supreme Court may not be applied in the facts of the instant case for two reasons viz. firstly the order passed by the learned Single Judge of this Court on 11th October, 2004 disposing of the earlier writ petition by which the concerned authority was directed to consider the petitioners prayer for grant of such licence taking into consideration that the process started earlier than that of the notification coming into force and that the petitioner had already spent huge money for getting such licence, being unchallenged was binding upon the concerned authority and as such the concerned authority, according to Mr. Ghosh rightly considered the appellant’s prayer for grant of such licence with reference to un-amended provision of the Rules of 2003 which was prevalent on the date of submission of such application by the appellant before the concerned authority. According to Mr. Ghosh an order even though erroneous is binding upon the parties inter se though such order may not operate as Rule of precedence. 17. Secondly, the order passed by the concerned authority granting such licence in favour of the appellant is in conformity with the subsequent notification issued by the Excise Commissioner Government of West Bengal on 28th September, 2005 regarding settlement of Excise licences in favour of the applicant/licensees who had applied for the same before publication of the Excise Department’s notification No. 527-Ex dated 02.04.2004. (a) By the said notification it was notified that all the applications received before 15th April, 2004 being the date of publication of the said notification, by the concerned District authorities for grant of foreign liquor "On Shop" licences and not rejected by the Collector may kindly be sent to the Directorate, if not sent already, after suitable processing as per Rule 8(1) of the Excise Department’s notification No. 800-Ex dated 29.07.2003. (b) All the petitions received before 15th April, 2004 duly rejected by the collector and/or the Collectors due to coming into force of the Excise Department’s Notification No. 527-Ex dated 24.7.2014 also sent to the Directorate for further consideration after processing of the same in terms of the Rule 8(1) of the Excise Department’s notification No. 800-Ex dated 29.07.2003. (c) If the licences in respect of Foreign Liquor "On Shop" duly approved by the Government in the Excise Department and communicated to the District authorities by the Directorate could not be issued due to publication of the Excise Department’s Notification No. 527-Ex dated 02.04.2004, the same may now be issued as per Rule 8(1) of the Excise Department’s Notification No. 800-Ex dated 29.07.2003. (d) All the proposals received by the District authorities before 15th April, 2004 regarding shifting of their existing licence from the existing site to the proposed now site may also be sent to this Directorate after necessary processing as per Excise Department’s Notification No. 800-Ex dated 29.07.2003. (e) It has also come to the notice of the issuing authority that several applications for grant of foreign liquor "On Shop" licences received by the District Excise Authority are being rejected at their end. 18. Referring to the said notification Mr. Ghosh submitted that when the concerned authority itself decided to consider the applications submitted before the Rule of 2003 stood amended with reference to the un-amended Rules, the concerned authority according to Mr. Ghosh did not commit any illegality in granting licence to the appellant herein with reference to the Rules which was prevalent on the date when the appellant submitted his application before the concerned authority. 19. We do not find any substance in either of the aforesaid contentions of Mr. Ghosh as we do not find from the order passed by the learned Single Judge of this Court on 11th October, 2004 in W.P. No. 17283 (W) of 2004 that any mandatory or positive direction was given by the learned Single Judge while disposing of the writ petition either to consider the appellant’s applications for grant of such licence in the light of the un-amended Rules which were prevalent on the date of submission of his application or to grant any licence to the petitioner in the light of the un-amended Rules of 2003. By the said order simply direction was given to the authority concerned to consider the appellant’s said application for grant of such licence. Thus this is not a case where a mandatory direction was given by the learned Single Judge of this Court earlier to grant licence to the appellant in the light of the provision contained in the un-amended Rules of 2003. As such the argument of Mr. Ghosh that an order even if it is erroneous, is binding inter-parties and the parties cannot avoid implementation of such erroneous order, does not commend to us at all. 20. With reference to the second contention of Mr. Ghosh as referred to above we would like to mention here that the concerned authority had no opportunity to reply upon the notification of 2005 on which reliance was placed by Mr. Ghosh in support of his contention that the authority concerned did not commit illegality in passing the impugned order which was in conformity with the directions contained in the said notification as the said notification, was not in existence on the date when licence was granted by the concerned authority to the appellant herein. The said notification was issued long after grant of licence to the appellant herein. 21. Be that as it may it is trite law that a statutory Rule cannot be overridden by any office order and/or notification issued by an authority, however high position he holds under the statute. 22. We, thus, are unable to accept the above contentions of Mr. Ghosh. We, thus do not find any merit in this appeal. The appeal thus stands dismissed. We direct the concerned Revisional Authority to revisit the appellant’s prayer for grant of such licence in the light of the amended Rules of 2003 as directed by the learned Single Judge; however, time for such consideration by the concerned authority is extended by a period of four weeks from the date of communication of this order. 23. The appeal and the application in connection therewith are disposed of. No order as to costs.