Calcutta High Court
Supriya Banerjee vs State Of West Bengal And Ors. on 12 October, 2004
Equivalent citations: (2005)2CALLT83(HC), 2005(1)CHN135
Author: Soumitra Pal
Bench: Soumitra Pal
JUDGMENT Soumitra Pal, J.
1. The petitioner, pursuant to a notice inviting application for grant of licence for retail sale for consumption of country spirit, applied for "off and "on" shop at Sonepur Bazari, Burdwan. After considering the applications, a lottery was held. Admittedly the petitioner stood second and the respondent No. 4 stood first on the panel. By memo No. 995/E (W) dated 1.6.2001 a communication was made on behalf of the respondent No. 3 to the petitioner. The relevant portion of the memo dated 1.6.2001 is as under;
"In reference to your application for grant of licence for retail sale of country spirit for consumption 'off and 'on' the premises/at Sonepur Bazari he is informed that in the panel of the lottery, his/their position is first/second/ third. He is directed to submit sites for the said licence within seven days. It may be noted in this connection that the offer for licence will be date to the first man in the panel first, provided his site is acceptable and his antecedents arc satisfactory. In case the No. 1 fails, the offer will be made to the second man on the above conditions. Similarly, if the No. 2 is not found fit, the offer will be made to the third man provided he complies with the above conditions. In case the third man in the panel also fails, the matter will be referred to the Excise Commissioner, West Bengal.
Addl. District Magsitrate & Collector, Asansol."
2. The petitioner enquired and came to learn as the respondent No. 4 stood first and was found fit, the licence was going to be granted to him. Subsequently, the petitioner came to know that though the said respondent stood first, no shop of country spirit had been opened.
3. Thereafter, the petitioner by letter dated 29.8.2003 demanded justice. Since the respondent No. 4 had not opened the shop, the petitioner called upon the respondent Nos. 2 and 3 to grant licence in favour of the petitioner as he stood second on the panel.
4. However, as the petitioner did not get any response and being aggrieved moved the writ petition. The prayer in the writ petition which is relevant is as under :
"a) A writ of/or in the nature of Mandamus commanding the respondent authorities, their men, agents and assigns to withdraw, cancel, recall and/ or rescind the licence issued to the private respondent No. 4 herein and further commanding the respondents to forthwith issue the licence to the petitioner herein being 2nd in the panel."
5. The writ petition was moved on 22.9.2003. On the said date following directions were issued:
"In view of the urgency of the matter, Rule 26 of the Appellate Side Rules is dispensed with.
In spite of service none appears for respondents.
Affidavit of service filed in this case be kept with the record.
It appears that the petitioner second empanelled candidate in the list prepared by the respondent authorities. Upon hearing the petitioner and after considering the facts and circumstances of this case, it appears that a prima facie case has been made out by the petitioner. The respondent authorities shall not take any steps in the matter without exhausting the list in question. This order will remain in force till 29.9.2003. Let this matter appear in the list as a listed motion 26.9.2003 ."
6. Thereafter, on 26.9.2003 following order was passed : "Let affidavit-in- opposition be filed within two weeks after the Puja vacation, reply if any thereto be filed within one week thereafter. Interin order already passed in the matter will continue until further order." Affidavits have since been exchanged.
7. Mr. Arunava Ghosh, learned Advocate for the petitioner, submitted that the respondents are bound to act in accordance with the provisions in the West Bengal Excise (Selection of Person for Grant of Licence at New Sites for Retail Sale of Spirit and certain other Intoxicants other than Foreign Liquor on Categories of Licenses and Licenses for Denatured Spirit) Order, 2000 (for short 'the Order') and the petitioner ought to have been granted licence as the shop was not opened by the respondent No. 4 for transaction within 30 days from the date of offer. According to him, as the date of offer was August 2, 2001, the respondent No. 4 should have opened the shop by 31.8.2001. The shop was admittedly opened, if at all, on 7.9.2001 much beyond the statutory period of 30 days. It was also submitted that as it appears from the affidavit-in-opposition since no sale took place the shop was not opened and even if any sale took place on or after 7.9.2001, the same was invalid. Therefore, since the respondent No. 4 failed to open the shop the respondent should have offered the licence to the petitioner. Not having done so the respondent No. 3 should be directed to grant licence in favour of the petitioner as the site offered by the petitioner is lying ready since 2001.
8. The learned Advocate on behalf of the respondents submitted that since licence was issued to the respondent No. 4, the panel is not in existence and selection has to be made after issuing fresh notification under Rules 14(5) and (7) of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Spirit and certain other Intoxicants) Rules, 1993. Moreover, it was submitted since the respondent No. 4 lifted bottles from the bottling plant at Durgapur, the shop was opened as contemplated under the order.
9. In reply it was submitted that as the shop was admittedly not opened within 30 days of the offer, the licence should be granted to the petitioner otherwise Order 8(b) becomes redundant. Assuming sale took place, it was merely a paper transaction. Further, such sale was illegal and void as it was after 31.8.2001.
10. After hearing the learned Advocates for the parties, I find interpretation of the Orders 8(b) and 9 is necessary for deciding the issue. Orders 8(b) and 9 are as under :
"(8)(b) If, on enquiry, the number one in the panel is found fit to hold an excise licence, the Collector shall offer the licence to him. In case the number one is found unfit, the offer in turn shall be passed on to the second person if he is fit. If the second person is also found unfit, the offer will go to the third applicant, if he is fit:
Provided that if the person to whom an offer is made fails to open the shop for transaction within 30(thirty) days from the date of offer, the offer shall lapse and the offer shall be passed on to the next person, if any, in the panel and so on. unless the period for opening the shop for transaction is extended in writing by the Excise Commissioner, for reasons to be recorded in writing:
Provided further that before the issue of a licence to a firm, the latter must execute a deed of partnership.
(9) Where the licence cannot be offered in the manner as aforesaid, the matter shall be referred to the State Government by the Collector through the Excise Commissioner. The State Government may, on consideration of the report from the Excise Commissioner, order fresh selection through advertisement in accordance with the foregoing provisions of this Order or order selection of fresh panel through lottery to be conducted amongst the eligible applicants, excluding the applicants who are found unsuitable for holding excise licence."
11. Thus, the proviso mandates that the shop should be opened within 30 days from the date of offer and if one fails to open the shop for transaction within the said period it should be passed on the next person.
12. Facts which are relevant as stated in the affidavit-in-opposition (for short "the said affidavit") by the respondents relating to the issue of licence to the respondent No. 4 are extracted hereunder :
"8(a) That on August 2, 2001 the licence for retail vend of country spirit was issued in favour of the respondent No. 4 who secured first position in the panel and the said license was valid upto March 31,2002. The respondent No. 4 received the licence on August 7,2001.
(b).............
9(a) That on September 7, 2001 the shop for country liquor 'off and 'on' shop at Soneput Bazari, Asansol was opened and 300 bottles of country spirit were lifted from I.F.B. Bottling plant. Durgapur and the sale of Excisable articles took place on the said date.
(b)............
10(a) Thereafter on January 9, 2002 the respondent No. 4 made representations before the respondent No. 3. inter alia, requesting to permit him to shift his site from the existing plot No. 945 to plot No. 766 under Sonepur Mouza as the local people raised objection and threatened him over telephone not to continue the said country spirit shop and on September 8, 2001 the frenzied people had razed the shop."
13. From a perusal of facts from the said affidavit, I find licence was offered to the respondent No. 4 on 2.8.2001. Since offer was made on 2.8.2001 and as the mandatory provisions in the proviso to Order 8(b) postulates that a shop has to be opened for transaction within 30 days from the date of offer, the respondent No. 4 should have opened the shop by 31.8.2001. Since the respondent No. 4 failed to open the shop within 30 days from the date of offer, the offer lapsed on 31.8.2001. As the respondents have stated in the affidavit that the shop was opened on 7.9.2001, which I find was beyond 30 days from the date of offer, any sale transacted beyond the said period by the respondent No. 4 is void and illegal. Submission on behalf of the respondent that the shop was opened since bottles were lifted by the respondent No. 4 from the bottling plant, is not tenable as 'shop' means 'a building or part of a building where goods or services are sold' (Concise Oxford Dictionary, Tenth Edition). Thus, shop is a place where goods are sold. A shop cannot be said to have been opened unless sale is transacted. Lifting of bottles does not amount to sale. The argument on behalf of the respondent, that since licence had been issued the panel stood exhausted, is not tenable as it runs contrary to the proviso to Order 8(b).
14. The proviso postulates if the first person fails to open the shop the offer shall lapse and shall have to be passed on to the second person. If the said person also fails it shall be to the third person. Thereafter, fresh selection through advertisement shall have to be made.
15. In the instant case, since the respondent No. 4 failed to open the shop within 30 days from the date of offer, the offer lapsed and the respondents ought to have offered the licence to the writ petitioner for opening the shop. Not having done so, the respondents acted contrary to the order dated 8.2.2000 which is patently illegal.
16. Thus, as the shop was admittedly not opened by the respondent No. 4 within 30 days from the date of offer, and as the petitioner is second in the panel, the respondent No. 3 is directed to offer the shop to the petitioner for transaction within a period of four weeks from the date of communication of the order,
17. The writ application thus succeeds, However, in the facts and circumstances there shall be no order as to costs.
18. Urgent xerox certified copy of this judgment and order, if applied for, be given to the appearing parties on priority basis.
Later:
19. It is submitted by Mr. Shaw that since vacation is approaching and as it takes time to obtain certified copy of the judgment, liberty should be granted to the petitioner for communicating the operative part of the order and the respondents should be directed to act upon such communication.
20. In view of such submission, I grant liberty to Mr. Shaw as well as Mr. Roychowdhury, learned Advocates appearing for the parties to communicate the operative part of this order to the respondent authorities and the respondent authorities are directed to act on such communication.