Calcutta High Court
Sourav Roy vs State Of West Bengal And Ors. on 20 July, 2006
Equivalent citations: 2007(2)CHN188
Author: Soumitra Pal
Bench: Soumitra Pal
JUDGMENT Soumitra Pal, J.
1. In the writ petition the petitioner has prayed for a direction upon the police authorities to reopen his shop at 33/1, Mahim Haider Street, Kolkata in terms of the order passed by the Excise Commissioner, West Bengal.
2. The facts are that initially the petitioner was granted a licence to run a country spirit shop in Tapsia. There were objections. After receiving necessary permission it was shifted to Mahim Haider Street, Kolkata. But, thereafter, due to the objection by the private respondents against the grant of licence and due to physical obstruction, the petitioner could not run the shop. Challenging the action of the authorities in granting licence to run a country liquor (on and off) shop, a Public Interest Litigation being W.P. No. 15116 (W) of 2005 was moved before this Court which was disposed of on 5th August, 2005 by the following order:
Heard learned Counsel for the parties. This writ petition has been filed challenging, inter alia, the setting up of country liquor (on and off) shop within the vicinity of Kalighat Temple and a school. We are not examining the correctness of the grievances, but we are of the view that against the setting up of country liquor (on and off) shop eight of appeal is provided under the relevant statute, the petitioner should exhaust that right before approaching the High Court. We, therefore, dispose of the writ petition by directing the petitioner to exhaust his right of appeal under the statute. We make it clear that if such an appeal is filed within one month from today, the same shall be disposed of as early as possible, preferably, within one month from the date of filing such appeal. In the absence of any affidavits, allegations made in the writ petition are not admitted. With this observations the writ petition is disposed of.
3. Thereafter, in terms of the order passed on 5th August, 2005, the matter was taken up for hearing by the Excise Commissioner. On 6th October, 2005 after hearing the arguments of the parties an interim order was passed, the relevant portion of which is as under:
Considered the arguments, both written and oral. What is required to the considered here under the rules is the suitability of the site and that of the petitioner. In the instant case, the license was granted after consideration of the suitability of the site. However, since a dispute has surfaced in this regard, the Collector of Excise, Kolkata (South) is directed to examine the suitability of the site afresh, if possible, jointly with the petitioners. Meanwhile, liberty is given to the private respondent to apply for shitting his shop to a fresh objection free site for consideration by the Government as a very special case. The shop should remain closed till disposal of the appeal.
4. Thereafter, by an order dated 20th January, 2006 the matter was finally disposed of. The relevant portion of that order is as under:
Since the Collector initially granted the license at the present site after satisfying himself that the same is objection free as per existing rules and a re-examination of the same also proves it to be free from restrictions as provided under Rule 8 of Notification No. 800-EX dated 29.07.2003, as amended. I do not find any merit in the application submitted before me. The said application is accordingly rejected and the shop is allowed to function at its present site.
In view of the local objections, I, however, direct that the licensee shall not be allowed to sell country spirit to customers for consumption 'on' the premises. He shall sell country spirit 'off the premises only.
5. The grievance of the petitioner is that though the authorities by order dated 20th January, 2006 had granted permission to sell the country spirit on off basis, the petitioner has been unable to reopen the shop in view of the resistance by the private respondents against which a complaint has been lodged which has gone unattended. Thereafter, the private respondents tried to stall the reopening of the shop again by moving a Public Interest Litigation being W.P. No. 7402(W) of 2006 which was disposed of on 12th May, 2006 by granting liberty to the private respondents to prefer appeal if they so chose. According to Mr. Dutta, for the first time today his client has come to learn that an appeal has been preferred against the order dated 20th January, 2006. Submission has been made since there is no order of stay of the order passed, the respondents cannot refuse to implement the order and, therefore, police authorities should be directed to carry out the order dated 20th January, 2006 passed by the Commissioner. In support reliance has been placed on the Judgments of the Apex Court passed in Union of India v. Kamlakshi Corporation Ltd. Collector of Customs, Bombay v. Krishna Sales (P) Ltd. and the Judgment of this Court in Pankaj Guljarilal Gupta v. Collector of Customs Calcutta to buttress his point.
6. Mr. Basu, learned Advocate appearing on behalf of the private respondents does not dispute the proposition that mere filing of appeal does not operate as a bar to carry out the order passed. In this regard, he refers to Order 41 Rule 5 of the Code of Civil Procedure, 1908. However, according to him, if the order passed by the Commissioner is given effect to, his clients shall be out of remedy. Submission has been made that though final order has been passed granting relief to the petitioner, considering the facts and circumstances the appellate authority should be directed to dispose of the appeal since the order passed is perverse as the Commissioner failed to take into account certain facts.
7. Learned Advocate appearing on behalf of the State respondent submits that the police authorities could not act due to pendency of litigations.
8. Heard learned Advocates for the parties.
9. Perusing the petition I find that on 6th October, 2005, the Excise Commissioner took up the matter for hearing. An interim order was passed directing the shop to be kept closed. Thereafter, on 20th January, 2006 the matter was finally disposed of permitting the petitioner to sell country spirit only on 'off basis and not for 'on' consumption. Being aggrieved the private respondent preferred an appeal which is pending. It is not in dispute there is no stay of the order passed. The question is whether mere filing of appeal amounts to stay of the order passed by the Commissioner. In my view, considering the statutory aspect and the principles of law laid down, the issue is well-settled. So far the provisions of law are concerned Order 41 Rule 5(1) of the Code of Civil Procedure (1908) postulates that an appeal shall not operate as a stay of the proceedings. Therefore, mere filing of an appeal does not prevent the authorities from carrying out the order passed. Regarding principles of law, the Supreme Court in Union of India v. Kamalakshmi Finance Corporation Ltd. (supra) held as under:
...The mere fact that the order of the appellate authority is not 'acceptable' to the department--in itself an onjectionable phrase- and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assesses and chaos in administration of tax of laws,
10. In Collector of Customs, Bombay v. Krishan Sales (P) Ltd. (supra) it was held as follows:
6. According to the said para 4, the goods will not be released even where the party succeeds in cases where the customs authorities decide to go in appeal before the Tribunal or the Supreme Court. They will consider the issuance of such certificate only after the decision of the Tribunal or the Supreme Court, as the case may be. The ld. Counsel for the respondent characterizes the said direction as arbitrary and contrary to law. We see the force in his submission. If the authorities are of the opinion that the goods ought not to be released pending the appeal, the straight-forward, course for them is to obtain an order of stay or other appropriate direction from the Tribunal or the Supreme Court, as the case may be. Without obtaining such an order they cannot refuse to implement the order under appeal....
11. In Pankaj Guljarilal (supra) where our High Court occasion to consider the abovenoted Judgments, held that since there was no stay of operation of the order passed by the Collector of Customs (Appeal), the respondents were bound to carry out the order passed by the Collector and directions were issued accordingly. Hence, the proposition is pendency of an appeal does not operate as a stay.
12. Thus, in my considered view, as there is no stay of the order appealed against, the respondents particularly the police authorities should have provided necessary assistance to the petitioner in reopening his shop. In not doing so the police authorities failed and neglected to carry out the duty cast upon them. Therefore, the respondents Nos. 2, 3 and 4 are directed to carry out the order dated 20th January, 2006 passed by the Excise Commissioner, West Bengal by rendering necessary assistance to the petitioner in reopening his shop.
13. The writ petition is disposed of
14. There will be no order as to costs.
15. Learned Advocates for the parties are permitted to take down the gist of this order and communicate the same to the respondents and the respondents, particularly the respondents Nos. 2, 3 and 4 shall act on the basis of such communication without insisting upon production of the certified copy of the order.
16. Urgent xerox certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
Later:
17. Mr. Basu, learned Advocate appearing on behalf of the private respondents, prays for stay of the operation of the order. Prayer is considered and refused.