Calcutta High Court (Appellete Side)
Bapi Dutta vs The State Of West Bengal And Others on 12 July, 2024
D/L. 21.
July 12, 2024. (Assigned)
MNS
WPA No. 4635 of 2022
+
CAN 1 of 2022
Bapi Dutta
Vs.
The State of West Bengal and others
Mr. Satrajit Sinha Roy,
Mr. Tapan Roy,
Ms. Sulagna Sen
...for the petitioner.
Mr. Kishore Dutta,
Mr. Anirban Ray,
Mr. Tanoy Chakraborty,
Mr. Debraj Saha
...for the State.
1. Notice of service filed in Court today be kept
on record.
2. Learned counsel for the petitioner contends
that the order refusing the petitioner's
application for permission to run a bar-cum-
restaurant is vitiated in law, being perverse
and contrary to the governing Rules.
3. The first ground of challenge is that whereas
in the proviso to Rule 8(1) of the West Bengal
Excise (Selection of New Sites and Grant of
Licence for Retail Sale of Liquor and Certain
Other Intoxicants) Rules, 2003 ( in short "the
2003 Rules"), it is stipulated that if a road has
to be crossed along the path which an
ordinary prudent person normally takes to
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reach such new site and the said road is
marked by a zebra crossing for pedestrians to
cross, the said distance shall be measured
taking into account the act of an ordinary
prudent person, while walking, would have
crossed the said road at the point marked by
zebra crossing for pedestrian to cross. In the
present case, although there was no such
zebra crossing in the immediate vicinity,
measurements have been taken by the
authorities.
4. It is submitted that such action on the part of
the authorities without taking into account the
fact that there is no zebra crossing itself
vitiates the order.
5. Secondly, learned counsel for the petitioner
places reliance on an 'Enquiry Report'
annexed to the writ petition. In one of the
items thereof, annexed at page 74 of the writ
petition, it has been indicated that there are
five existing FL 'On' shops and/or FL 'Off'
shops and/or FL Bar-cum-Restaurant and/or
retail shops selling country spirit within a
radius of approximately one kilometer of the
locality.
6. Hence, it is submitted that there has been
discrimination against the petitioner, since,
although other five shops have been given
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licence within the vicinity, the petitioner has
been deprived of such opportunity.
7. It is further argued by the petitioner that
different distances have been measured by
the authorities, as reflected from the
impugned order, which itself vitiates the
impugned order.
8. Such contentions are controverted on behalf
of the respondents.
9. Insofar as the first contention of the petitioner is concerned, the proviso to Rule 8(1) of the 2003 Rules is not attracted in the present case at all.
10. Since it is an admitted position and also reflected from the order and the enquiry report that there was no zebra crossing in the vicinity, the said proviso cannot have any application. The proviso merely provides that if a road has to be crossed along the path which an ordinary prudent person normally takes to reach such new sites and the said road is marked by zebra crossing for pedestrians to cross, the said distance shall be measured taking into account the fact that an ordinary prudent person, while walking, would have crossed the said road at the point marked by zebra crossing for pedestrians to cross.
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11. It is rather obvious that if there is no zebra crossing, there is no question of a prudent person crossing a zebra crossing. As such, it is absurd that the said proviso should be looked into while passing the impugned order.
12. Insofar as the second ground is concerned, the existing liquor shops cannot have any manner of relevance in the present context, since admittedly those shops are situated within a radius of one kilometer which is more than the restricted area of 1000 feet.
13. No case has been made out before this court or before the authority by the petitioner that any of those shops are also situated within 1000 feet as opposed to one kilometer.
14. Even if such contention was raised, two wrongs do not make a right and the petitioner could not have invoked negative equality inasmuch as if irregularities were committed in respect of grant of licence to other shops, the same illegality could not be a premise of seeking a similar right for the petitioners. In any event, no such illegality finds place in the records.
15. Thirdly, the argument that several distances were measured is misconceived. The impugned order reflects that an enquiry was conducted and as per the enquiry report, the 5 distance between the proposed site and two different gates being Gate Nos. 3 and 4 of the educational institution-in-question, that is, the Indian Statistical Institute, are 757 feet and 582 feet respectively. Thus, the measurements taken were not different distances between the same points, but from the chosen site of the petitioner two different gates of the Educational Institution, both of which fell within the prohibited limits.
16. In fact, even if one of the gates was within the prohibited limit, the requirement of the Rules would be subserved since even then the Educational Institution would be within the prohibited vicinity of the proposed site of the petitioner.
17. Hence, in view of the findings arrived at by the Principal Secretary, Finance Department, Government of West Bengal, while passing the impugned order, I fail to convince myself that there has been any irregularity or perversity and/or palpable illegality in any manner whatsoever.
18. Moreover, since the respondents gave an opportunity of hearing to the petitioners and proceeding on the premise of the enquiry report in accordance with law, there is no flaw 6 in the decision-making process as well, inviting the writ court to interfere.
19. Accordingly, the present writ petition is frivolous and ought to be dismissed.
20. Hence, WPA No. 4635 of 2022 is dismissed on contest. Consequentially, the connected application, being CAN 1 of 2022, is disposed of as well.
21. There will be no order as to costs.
(Sabyasachi Bhattacharyya, J.)