Research › Search › Judgment

Calcutta High Court · body

2024 DIGILAW 615 (CAL)

Tapan Kumar Dari v. State of West Bengal

2024-03-19

SABYASACHI BHATTACHARYYA

body2024
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The petitioner challenges the refusal by the Excise Authorities to renew a permission previously held by the petitioner to have live band performances in an on and off foreign liquor shop run by the petitioner. 2. It is submitted that the permission previously held was valid till March 07, 2018. However, a scuffle took place between two Excise Constables and the staff and management of the Bar on March 11, 2018. 3. There were allegations and counter-allegations on the part of the petitioner as well as the respondent-authorities, the petitioner alleging that the Excise constables had created the ruckus whereas the authorities gave a version that when the Excise constables went to ascertain whether the petitioner was continuing the live performances without having a valid permission, the constables were assaulted. Accordingly, complaints were lodged and FIRs registered which subsequently took the shape of charge-sheets being filed. 4. However, on such premise, a show-cause notice was issued to the petitioner under Rule 239 of the West Bengal Excise (Foreign Liquor) Rules, 1998 (for short “the 1998 Rules”). 5. Due to the pendency of the show-cause notice, the permission was not being renewed, which prompted the petitioner to move a writ petition before this court. A coordinate Bench of this court refused to interfere in view of the pendency of the show-cause proceeding. The petitioner preferred an appeal against the said order in which the Division Bench disposed of the appeal by limiting the proceeding arising out of the show-cause to the first component of the show-cause which pertained to violation of Rule 239 inasmuch as the petitioner was running live performances without having a valid permission and clarifying that the second component of the show-cause notice, that is, the alleged assault on the Excise officials would not be a ground of consideration under Rule 239. 6. Ultimately the show-cause proceeding culminated in the imposition of a penalty on the petitioner within the contemplation of the said Rules. 7. Thereafter, however, the renewal application was rejected on the ground of the existence of the previous order of the coordinate Bench whereby the coordinate Bench refused to interfere with the non-consideration of the renewal on the ground of pendency of the show-cause. 8. An appeal was preferred against the same, the outcome of which ultimately came before this court by way of a writ petition. 8. An appeal was preferred against the same, the outcome of which ultimately came before this court by way of a writ petition. Thereafter, a mandamus appeal was preferred in which the authorities were directed to dispose of the application for renewal irrespective of the previous order of the learned Single Judge of this court. 9. Subsequently, the Appellate Authority remanded the matter back to the Superintendent of Excise, upon which the impugned order dated November 06, 2023 was passed, refusing the renewal of permission. It is contended by learned counsel for the petitioner that while considering the case of the petitioner for renewal of the permission to run the live band, certain police reports were apparently taken into consideration by the Superintendent of Excise. 10. It is argued that the primary consideration of the authorities was the religious sentiments and peaceful cohabitation of the local people in view of there being three religious establishments in the vicinity of the establishment enshrining idols, which were not only manned by prominent personalities of various states but also visited by the pilgrims from different parts of West Bengal and other States, particularly at the time of two festivals, being the ‘Gajan Mela’ and ‘Srabani Mela’, when the number of pilgrims usually reaches its zenith. The authorities also cited the existence of a nearby children’s park where large picnic parties usually flock and the existence of two schools and the proximity of the liquor shop to State Highway 2. 11. That apart, the authorities also touched upon the apparent mismanagement of the business establishment by the petitioner. It is contended that the limited scope of the consideration while renewing the grant of permission under Rule 239 was fully satisfied by the petitioner. Moreover, since a permission was already granted, merely a renewal of which has now been sought, the authorities cannot resile and go back to the position before the issuance of the original permission by citing the existence of two schools, children park etc., which were already in existence at the time of grant of the permission. That apart, nothing specific has been stated in the impugned order regarding the management of the business establishment being not satisfactory. 12. That apart, nothing specific has been stated in the impugned order regarding the management of the business establishment being not satisfactory. 12. Insofar as the ‘Gajan Mela’ and ‘Srabani Mela’ are concerned, the petitioner specifically gave a written representation agreeing for the live performance to be stopped for the two months during which such festivals take place. It was clarified in the said representation that the petitioner would be satisfied with running the live performance for ten months throughout a year. 13. Learned counsel appearing for the respondent-authorities submits that the premise of the impugned order was primarily the police reports. 14. Even apart from the religious sentiments cited, the mismanagement of the business establishment by the petitioner was also highlighted. 15. By placing reliance on the reports, also annexed to the writ petition, learned counsel submits that the ongoing investigation regarding the allegations against staff and management of the on and off foreign liquor shop being run by the petitioner was the primary consideration in that regard. 16. Upon a consideration of Rule 239 of the 1998 Rules, it is seen that the same restricts a licence retail vendor of foreign liquor from holding any professional entertainment or dance on or near the licenced premises or permit the playing of music, vocal or instrumental on such premises without special sanction of the Collector in writing. 17. The said Rule does not provide any clear grounds for grant or renewal of such permit, although the proviso stipulates that in the areas where the Kolkata Police Act, 1866 or the Kolkata Suburban Police Act, 1866 applies, professional entertainment or dance may be held under certain circumstances. 18. Yet, the proviso does not apply in the present case, thereby leaving a void in the statute as to the exact yardsticks to be considered for grant of such permission. 19. However, the case of the petitioner is not for grant of a fresh permission. In the instant case, the authorities being satisfied of the petitioner being eligible, initially permitted such live performances to be run from the said establishment. Thus, at the juncture when the permission is sought to be renewed, new grounds cannot be cited for refusal to so extend the permission, which grounds were also available at the juncture when the initial permission was given. Thus, at the juncture when the permission is sought to be renewed, new grounds cannot be cited for refusal to so extend the permission, which grounds were also available at the juncture when the initial permission was given. Insofar as the existence of a children’s park, picnic parties, two schools and proximity with the State Highway 2 is concerned, those yardsticks were available to the authorities all along, despite which the initial permission was granted to the petitioner, which is not disputed by learned counsel for the State. 20. Insofar as the ‘Gajan Mela’ and ‘Srabani Mela’ and large congregation of pilgrims during the said period are concerned, the petitioner has expressly given in writing that they were willing to be restrained from continuing live performances during the tenure of such festivals, that is, during two months of the year. 21. Hence, there cannot be any valid reason on the premise of such grounds as well for refusing renewal of permission. 22. The only remaining reason which has been cited in the impugned order is that the management of the business establishment is not satisfactory. However, the said observation is as cryptic as can be and no particulars or proper reasons have been assigned for coming to such conclusion, which itself vitiates the order on such count. However, body has been lent to the outlines of such vague allegations by the police reports, which were the premise of such observations and have been relied on by the State. 23. A bare perusal of each of such police reports indicates that the only instance of alleged mismanagement has been cited to be the pending complaints against the management and staff of the petitioner’s establishment on the day of the incident when the Excise constables were allegedly assaulted and the petitioner made counter-allegations of the constables themselves having created a ruckus and having assaulted the personnel of the establishment on March 11, 2018. 24. Although the State is justified in arguing that the exclusion of such consideration for decision on the show-cause under Rule 239 by the Division Bench cannot be a valid restraint at the juncture of considering the renewal of the permission, even irrespective of the same, there is sufficient substance in the challenge against the said observation of the Superintendent of Excise by the petitioner. Even independent of such observation by the Division Bench, the only consideration for alleged mismanagement is the allegations made against the authorities against the petitioner’s establishment on the ground of alleged assault and associated offences. 25. However, we cannot lose sight of the fact that the allegations do not come in a standalone form but are also supplemented by counter-allegations made by the petitioner against the said excise constables, which have also culminated in complaints being lodged and FIRs having been registered. Since the allegations and counter-allegations have all reached the stage of filing of charge-sheets, which will now lead to a criminal trial, as per the established law of criminal jurisprudence in our country, a person cannot be held guilty unless held to be so or convicted by a competent court of law. 26. Mere allegations, particularly in the context of the counter-allegations made by the petitioner, do not give sufficient justification for refusal to renew permission for the petitioner to continue the live band performance which was already going on in the liquor shop previously. 27. Such action of refusal is patently tainted with malice as well as arbitrariness and unreasonableness on the part of the respondent-authorities, evidently due to the pendency of the counter-allegations made by the petitioner against the authorities. 28. That apart, the test of proportionality is not satisfied insofar as the refusal to renew the live band performances cuts sharply into the commercial earnings from the establishment, which disproportionately exceeds the mere pendency of allegations which have not yet taken the shape of a conviction or even reached the stage of trial as yet. 29. In view of the above observations, the impugned refusal to renew the petitioner’s permission to run a live performance in his liquor shop cannot be sustained. 30. Accordingly, WPA No. 1496 of 2024 is allowed on contest, thereby setting aside the impugned order dated November 06, 2023 passed by the Superintendent of Excise, Arambagh Excise District as annexed at page-178 (Annexure-P37) to the writ petition and directing the respondent nos. 30. Accordingly, WPA No. 1496 of 2024 is allowed on contest, thereby setting aside the impugned order dated November 06, 2023 passed by the Superintendent of Excise, Arambagh Excise District as annexed at page-178 (Annexure-P37) to the writ petition and directing the respondent nos. 2 and 3, that is, the District Magistrate and Collector, Hooghly and the Additional District Magistrate (G) & Collector of Excise, Hooghly respectively, to renew the permission of the petitioner for continuance of live musical performance at the petitioner’s foreign on and off liquor shop subject, of course, to the petitioner depositing the appropriate fees in that regard and complying with other due formalities, without being deterred by the pendency of the allegations and counter-allegations by the authorities and the petitioner against each other. 31. However, such renewal, when granted, shall be subject to the final outcome of the criminal proceedings to commence on the basis of the allegations and counter-allegations between the parties. In the event the criminal proceeding ultimately goes against the petitioner, the authorities shall be at liberty to take appropriate steps for cancellation of the renewal/permission in accordance with law. 32. It is made clear that while so renewing the permission, the respondent nos. 2 and 3 shall ensure that the petitioner does not conduct such live performances during the two months during which the religious festivals cited above take place and if necessary take appropriate undertakings from the petitioner on such count while renewing the permission, as a pre-condition of such renewal. 33. The exercise of renewal of the permission as directed above shall be concluded by the respondent nos. 2 and 3 within four weeks from date. 34. There will be no order as to costs. 35. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.