Calcutta High Court (Appellete Side)
Granting License In Relation To Supply ... vs Unknown on 20 May, 2016
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Sudip Ahluwalia
W.P. 12680 (W) of 2011
For the Petitioner : Mr. Shakti Nath Mukherjee
Mr. Srijib Chakraborty
Mr. S.K. Nandy,
For the State : Mr. Suman Sengupta
Mr. Sanatan Panja
CAV On : 13-05-2016
Judgment On : 20-05-2016
SUDIP AHLUWALIA, J. -
The petitioner applied for grant of an Excise Licence for
serving Foreign Liquor in her Shop-cum-Restaurant near
Bargachia, Dag No. 1143, Nakikul, Hooghly.
2. However, no steps on the petitioner's application were
taken on account of which she approached this Court for
writ in the nature of mandamus to compel the
respondent authorities for granting her the requisite
Licence.
3. On 5th August, 2011, Hon'ble Justice Jayanta Kumar Biswas (as His Lordship then was), directed the respondent no. 3 i.e. the Collector of Hooghly to inform whether all the applications filed before the petitioner's application had been disposed of, and if so, when the last such application was disposed of, and whether any application filed after the petitioner's application was disposed of, and if so, when.
4. In compliance of the aforesaid direction, an Affidavit-in- opposition was filed on behalf of the respondent nos. 3 & 4 in which a report was submitted by the Collector, Hooghly. The same is (Annexure R-1) to the affidavit-in- opposition filed on 18th November, 2011. It is seen therefrom that the petitioner's proposal/application was rejected vide Memo No. 617/E dated 26th of May, 2010.
5. It was also mentioned in the report that the proposed site for granting new Licence is barred by Rule 8(3) of the West Bengal Excise (Selection of New site and grant of Licence for retail sale of Liquor and certain other intoxicants) Rules, 2003.
6. However, admittedly rejection of the petitioner's application was not communicated to her by the authorities, which therefore left her with no scope to challenge the same before any statutory Superior Forum. It has been submitted on behalf of the respondent that in the matter of granting license in relation to supply and service of liquor, the rules in existence at the time when the decision was to be made, and not the original rules, would have to be followed in view of the decision of the Supreme Court in "State of Kerala and another Vs. Six Holiday Resource (P) Ltd. etc" being Civil Appeal No. 983 to 990 of 2003 decided on 13.01.2010.
7. There is no dispute in relation to this position of law. At the same time it must however, have to be understood that there is no blanket ban on issuance of a license, which even under the amended rules could be issued to the applicants subject to satisfaction of the authorities regarding the existence of the specified requirements therein. The claim of petitioner was ostensibly rejected on the ground that it violated Rule 8.3 of the Bengal Excise Act 1909 as inserted by the amounting with effect from 20.11.2008, which runs as follows:-
" ......... 3. No License for retail sale of liquor or any other shall be granted a new site if the new site 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 thousands or more, shall not be treated as restriction.........."
8. Now it has transpired that in rejecting the petitioner's application the Respondent Authorities had not verified the actual population of her concerned local Authority area at the relevant time in the year 2010. They had relied on the population report on the basis of the Census held way back in 2001.
9. The petitioners have cited before this Court the instance of another applicant namely Smt. Shila Saha, whose establishment "Moonlight restaurant-cum-Bar" also falls within the restricted distance under Rule 8.3, but who was nevertheless granted the license since it was found that the population of the concerned local authority area exceeded 20,000 according to the 2011 Census report. Admittedly the application of Smt. Shila Saha was submitted after the Census of 2011 had already been conducted. Nevertheless it cannot be said that in case of the writ petitioner the interest ends of justice had been sub-served by mechanically rejecting her application on the basis of 9 year old Census records. Furthermore, the petitioner was not aware of such rejection even when the new population figures on the basis of the 2011 census were drawn up. She was constrained to she filed this writ petition on 01.08.2011 after the authorities had failed to act on her application and also to inform her about its rejection.
10. In the given circumstances, the writ petition is allowed with a direction upon the Respondent Authorities to have her application reconsidered by an Officer not below the rank of Additional District Magistrate, to be nominated by the respondent No. 3, who shall pass an appropriate order after granting her an opportunity of hearing, and taking into account the population figures of the concerned Local Authority Area on the basis of the 2011 Census report. Such order shall be passed by the concerned Officer within six weeks from the date of communication of this order.
(Sudip Ahluwalia, J.)