Calcutta High Court
Baba Loknath Enterprises And Anr. And ... vs State Of West Bengal And Ors. on 30 September, 2005
Equivalent citations: 2006(4)CHN371
JUDGMENT Soumitra Sen, J.
1. Both the appeals have been filed against the impugned judgment dated 20th November, 2002 whereby the learned Judge has been pleased to uphold the order of the Excise Commissioner whereby the said Commissioner set aside the grant of off shop foreign liquor licence in favour of M/s. Ashirbad and directed fresh lottery to be held. The facts of the instant case are as follows.
2. On 10th of August, 2000, an advertisement was published in the newspaper inviting applications for grant of off shop foreign liquor licence at a specified location namely, Chanchol, Durgabari Road, Galaxy Market Complex, District Malda. Pursuant to such advertisement both the appellants and one Maa Tara Enterprises together with other applicants submitted their applications in accordance with West Bengal Excise (Grant of Licence for the Manufacture of Liquor and Capsule Bottle and Country Spirit and Sale by Wholesale) Rules, 1998. Preliminary scrutiny of the applications were made by the Collector of the concerned District namely, Malda. Thereafter, in accordance with rules the applications were forwarded to the Directorate of State Lottery for holding a lottery. On 5th of February, 2001, the lottery was held and a panel of 3 candidates was prepared in which Baba Loknath Enterprises stood first, Ashirbad stood second and Maa Tara was the third candidate.
3. In accordance with rules the candidature of all the three candidates were thereafter required to be examined and in case of ineligibility of the first candidate the second candidate was required to be chosen and in case the second was found to be ineligible, the third candidate was to be considered for grant of licence in the event if all the three candidates were found to be ineligible, fresh selection procedure de novo was required to be started.
4. By a Memo dated 18th of June, 2001, Baba Loknath Enterprises was directed to appear before the concerned authority on 29th of June, 2001 for further action and on the said date a memo was issued directing Baba Loknath to submit certain documents in original within seven days thereof which were admittedly furnished. Therefore, the concerned Collector considered all the applications and held that out of the three candidates only the application of Ashirbad was valid in all respects and licence was sought to be settled in favour of Ashirbad. Against the order of the Collector Baba Loknath Enterprises preferred an appeal before the Excise Commissioner in accordance with the provisions of Section 8 of the Bengal Excise Act, 1909.
5. The Excise Commissioner set aside the order of Collector was also pleased to set aside the settlement of licence in favour of M/s. Ashirbad and directed fresh settlement of foreign liquor off shop at Chanchol. Being aggrieved by, and dissatisfied with, the order of the Commissioner Baba Loknath Enterprises preferred a revisional application but such application was dismissed by the Secretary, Excise Department, and the order of the Commissioner was upheld. Thereafter, the two writ petitions were filed one by Baba Loknath Enterprises and other by M/s. Ashirbad challenging the order of the revisional authority which upheld the order of the Commissioner.
6. In order to arrive at a definite conclusion regarding the issues involved herein the grounds on which the Commissioner set aside the order of the Collector is required to be gone into.
7. With regard to the application of Baba Loknath Enterprises the Collector had initially held that the application filed by Baba Loknath was defective inasmuch as requisite documents were not submitted along with the application and the partners not being unemployed could not be considered for grant of licence in case of a reserved category namely, reserved for unemployed youth. In this context, the Notification dated 4th February, 2000. issued by the Government of West Bengal, Excise Department, becomes relevant.
8. It has been submitted on behalf of the State that by reason of said Notification dated 4th February, 2000, an order was issued whereby the State Government may reserve new site or sites for settlement amongst firms or societies formed by unemployed youth under the provision of any law for the time being in force.
9. Under the said order an Explanation was also given which reads as follows:
'Explanation.--"Unemployed youth" shall mean any person of or above the age of 21 (Twenty-one) years but not above 37 (Thirty-seven) years registered as unemployed in any Employment Exchange in the State of West Bengal and certified to be unemployed by any of the authorities mentioned hereunder in whose jurisdiction such person reside:
(a) Member of Parliament;
(b) Member of Legislative Assembly;
(c) Sabhadhipati of a Zilla Parishad;
(d) Sabhadhipati, Siliguri Mahakuma Parishad;
(e) Chairman, Darjeeling Gorkha Hill Council;
(f) Chief Executive Officer of Notified Area;
(g) Mayor or Commissioner of a Municipal Corporation; and
(h) Chairman of a Municipality.
10. It was also submitted on behalf of the State that in terms of Clause 5(i) of the order issued pursuant to the Notification dated 4th February, 2000, every applicant must submit documents in support of the statements made in the application or otherwise such applications would be liable for rejection.
11. The Collector in his Order dated 31" August, 2001, held that the application of Baba Loknath Enterprises was not in accordance with the rules inasmuch as the certificate evidencing that the partners are unemployed namely, the certificate of the Employment Exchange and certificate of unemployment issued by the authorities mentioned in the order were not submitted along with the application, this finding was upheld by the Commissioner. The Commissioner had clearly held that submission of these documents were pre-requisite for consideration of an application filed by a firm formed by unemployed youth. It is not necessary to discuss the candidature of Maa Tara, as Maa Tara is longer in the fray.
12. The finding of the Collector that the partners of Baba Loknath Enterprises cannot be considered to be unemployed as they have indicated in their application that the partners have income. One of partners has an income Rs. 40,000/- and the other partner had an income of 45,000/-. Therefore, they cannot be considered as unemployed.
13. From the provision of the rules and the order passed pursuant to the Notification dated 4th February, 2000, it appears no time limit has been fixed as to the date of formation of a partnership firm or a co-operative society formed by unemployed youth before making of an application. Therefore, it can be presumed that a previously constituted firm or a society was entitled to apply and an existing firm or society, which carries on any business activity, is expected to earn profit or loss.
14. Therefore, allowing an existing firm or a society to apply, it presupposes that a firm or a society engaged in any business is likely to earn some income. Further no income criteria have been laid down anywhere prohibiting a firm or a society to apply. Therefore, the contention that the partners of Baba Loknath Enterprises earning money would disentitle them from applying as unemployed youth appear to be inconsistent with the provisions of the rules and the orders.
15. It is true that the expression unemployed youth has a specific connotation but once the authorities had permitted existing firms and/or societies to apply the expression unemployed youth would assume different connotation. It would, therefore, mean that self-employed youth who are not employed under any authorities or any private organizations would be entitled to apply irrespective of their income.
16. The other ground of the Collector for rejection of the application of Baba Loknath Enterprises assumes a greater significance since the said finding has been upheld by the Commissioner that is non-submission of documents in support of their status of being unemployed. It has been submitted both on behalf of the State as well as the Counsel appearing on behalf of M/s. Ashirbad that Baba Loknath Enterprises has not submitted the necessary documents in support of their contention that they are unemployed inasmuch as the certificate of the Employment Exchange and the certificate of the other authorities were not submitted along with the applications. Therefore, the said application was liable to be rejected.
17. In support of the said submission a great deal of reliance was placed on Rule 5(1) of the Order dated 4th February, 2000, for the sake of convenience the said rule is set out as hereunder:
5(1) On receipt of application by the Collector in response to the public notice mentioned in the foregoing paragraph within the time stipulated therein, he shall make a preliminary scrutiny of the application received. Such of the applications as are not submitted in the prescribed form and/ or are not complete in all respects including as respect submissions of documents in support of the statements made in the application shall be liable to be rejected. When the Collector rejects an application, he shall record the reason(s) therefor.
18. A careful reading of the rule indicates that an applicant is required to submit all documents in support of the statements made in the application. The application to be made is in a prescribed form which is Form II framed under Rules 9 and 10 of the relevant rules. From the prescribed rules it does not appear that there is any requirement to disclose that the applicant is an unemployed person. Furthermore, in the prescribed rules itself a list of documents has been included which were required to be submitted along with the application. From the said list of documents it also does not appear that an applicant will have to submit any document in support of the fact that the applicant is an unemployed youth.
19. This position was sought to be explained on behalf of the State that the prescribed form were framed prior to the Notification dated 4th February, 2000, when for the first time a special category or special reserved category of unemployed youth were created. It was submitted that the object of such amendment of the rules was made in order to give benefit to persons who are unemployed. There may be some logic in such a submission, but unfortunately, the object of the amendment is not reflected from any statements or reasons or any preamble to such rules. It was a mere statement from the Bar. Even Rule 5(1) does not specifically mention that documents in support of the status of unemployment will have to be submitted along with the application. On the contrary, even the amended rules mentioned that documents in support of the statement made in the applications are to be submitted. If the application form itself is devoid of any column whereby an applicant is required to disclose his status of unemployment we do not find any reason why an applicant should submit any documents which is otherwise not required in accordance with the prescribed form of the application. It is also significant to note that Baba Loknath Enterprises in fact had in his possession the certificate of the Employment Exchange. The certificates given in favour of both the persons indicate that they were registered in the Employment Exchange much prior to the date of submission of the application. We see no reason why the said documents could not have been submitted along with the application. There was no earthly reason for Baba Loknath Enterprises not to give the said certificate along with the applications in spite of having it in their possession. The only explanations that we are bound to accept that since the prescribed format do not require submission of such certificates it was not submitted. The anomalies contained in the prescribed form of application and also amended rules would automatically come in aid of Baba Loknath Enterprises to contend that they should not be held responsible for such anomalies.
20. It was submitted by the Advocate appearing on behalf of M/s. Ashirbad that since Baba Loknath Enterprises have declared in their application form that they were unemployed, they were required to submit the documents in support of such statements. It was submitted that each of the applicants had understood the prescribed format of the application and had duly declared themselves as unemployed and therefore required documents in support thereof should have been submitted. We, accordingly, called for the records from the State. After going through the records we find that none of the applicants had actually declared themselves to be unemployed.
21. In fact, that was what each applicant could do since there was no scope in the prescribed format to describe one as unemployed.
22. The application form which is a prescribed form column 3 reads as such:
3. (a) Name of partners in case of firm with educational qualification of each:
(b) Address of all partners:
(i) Present
(ii) Past
(c) Other occupations (if any):
(i) Present
(ii) Past
(d) Annual income of each of the partners:
23. In the application of M/s. Ashirbad against column 3(c) it is mentioned as against the first partner, "educated unemployed youth now engaged in seasonal mango business", as against partner No. 2 "educated unemployed youth now engaged in private sector" as against partner No. 3 "educated unemployed youth now engaged in private sector". Therefore, the statements made as against the same column are self-contradictory in terms. Moreover, under the heading annual income of each of the partners amount of Rs. 50,000/-, 6,000/-and 12.000/- was written in respect of each of the three partners respectively. The cumulative income of all the three partners would exceed the individual income of the partners of Baba Loknath Enterprises even the cumulative income of the partners of Baba Loknath Enterprises is not much higher than the cumulative income of the partners of M/s. Ashirbad.
24. Even from the application of Maa Tara, we do not find that the expression "unemployed" has been mentioned anywhere in the application. Therefore, it is clear that all the applicants have applied in accordance with the prescribed format if M/s. Ashirbad had given any documents in support of their contentions that the partners are unemployed, then they have done so on their own volition but not in accordance with the rules and the format framed thereunder. In any event if we accept the contentions of the State that having income would disentitle a person to contend as being unemployed, then by the same analogy the application of M/s. Ashirbad cannot be accepted also.
25. We have not been able to appreciate as to how the Collector could reject the application of Baba Loknath Enterprises on the ground that the partners have substantial income and at the same time hold that the partners of M/s. Ashirbad satisfied the criteria of being unemployed when admittedly the partners have disclosed income to the extent as indicated hereinbefore. In our opinion, therefore, the order of the Collector settling the licence in favour of M/s. Ashirbad was biased and was passed only to favour M/s. Ashirbad to the exclusion of others.
26. With regard to the ground for rejection of the candidature of M/s. Ashirbad by the Commissioner, we find that the ground was with regard to non-registration of the partnership firm.
27. It was submitted by the Advocate appearing on behalf of M/s. Ashirbad that the Notification dated 4th February, 2000 was amended subsequently on 8th September, 2000, whereby it was clearly mentioned that a firm or a society need not be registered at the time of submitting registration in the prescribed form for new licence but registration shall have to be made after selection through lottery.
28. After going through the unamended provision contained in the order issued pursuant to the Notification dated 4th February, 2000, we find that there are several stages of scrutiny and the whole object purpose of such various stages of scrutiny is to find out whether the applicants satisfy all the tests required for grant of licence and whether the statements made in the applications are all true. It is true that there was no requirement for a partnership firm to be registered at the time of submitting the application but once their selection is made then before grant of licence registration of the firm must be completed or otherwise it would be very difficult for the authorities concerned to proceed against an unregistered firm as when it would be necessary to do so. When the order of the Collector was passed on 31st August, 2001, M/s. Ashirbad knew that they were selected for grant of licence but the firm was not registered until August, 2002. Therefore, on the date of grant of licence M/s. Ashirbad was an unregistered firm and no licence could have been issued in its favour.
29. In our opinion, such finding of the Excise Commissioner is logical and is in conformity with the scheme of the rules framed pursuant to the Notification dated 4th February, 2000 as amended on 8th September, 2000.
30. In our opinion, if the concerned authority feels that any firm or society constituted by unemployed youth must mean that such unemployed youth should not have been any income then appropriate clarifications in the rules are required to be made. Further in order to avoid all confusions the prescribed form should also be amended mentioning clearly therein the documents required to be submitted along with the application.
31. After going through the records of the case we find that the manner in which the application form has been filled up by all the applicants there is no manner of doubt that there is no statement contained in the application form for which any document in support of being unemployed was required to be furnished. Further, since the rules provided for various stages of scrutiny and/or examination of documents, the authority can very well examine the antecedent of applicants and ask for relevant documents to find out whether the applicants are unemployed or not.
32. In our opinion, therefore, the rules and orders as it presently stands, the application of Baba Loknath Enterprises cannot be said to be incomplete in any respect.
33. The Advocate appearing on behalf of M/s. Ashirbad have contended that if the application of Baba Loknath Enterprises is rejected they being next in line for contention their applications should be considered. The case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M Tripura Sundari Devi, , was cited on behalf of M/s. Ashirbad in support of the contention that if the basic qualification is not there at the time of making an application, and a candidate selected by mistake cannot be said to be duly selected. In the said case of District Collector applicant did not conform to the eligibility criteria inasmuch as the advertisement inviting applications clearly mentioned that the minimum qualification was second class postgraduate degree but the applicant in that case has a third class post-graduate degree. Therefore, the applicant in that case did not confirm to the eligibility criteria. In the instant case, it Is nobody's case that Baba Loknath Enterprises is not constituted by unemployed youth. Therefore, it cannot be said that they do not satisfy the test of eligibility. The only allegation against the firm is that they did not submit the requisite documents at the time of making of such application. Therefore, the ratio of the said case of District Collector (supra) is not applicable in the instant case.
34. The case of Devendra Kumar Mishra v. State of Bihar, reported in 1991 Lab IC 1075, was cited for the same proposition. It was submitted that in case a person did not have the requisite qualification to be appointed in the post, their selection would not give them a right in accordance with the principle of estoppel because the candidate was permitted to appear at the examination by mistake. In the said case in the case of Devendra Kumar (supra) the eligibility criteria for being appointed in the post of Munsif was an Advocate enrolled in the roles of the Bar. Therefore, the public prosecutor who was an employee of the State but not enrolled as an Advocate in the roles of the Bar was deemed not to be qualified to be appointed as Munsif.
35. The facts of the said case are totally different and therefore the ratio decided in the case of Devendra Kumar (supra) is not applicable in the facts of the instant case.
36. Considering the facts and circumstances and the law on the subject discussed, we are of the opinion that the impugned judgment cannot be sustained and consequently the order of the Secretary, Excise Department dated 8th of May, 2002. affirming the order of the Commissioner dated 15th of March, 2002, is hereby set aside. Since, we have held that upon further scrutiny the documents submitted by the Baba Loknath Enterprises being found to be in order and Baba Loknath Enterprises being the first empanelled candidate, the licence for the concerned location namely, Chanchol for foreign liquor off shop may be granted to it.
37. In our conclusion as above, we have also considered one fact that since grant of licence is done under a process of lottery and not on merits a selected candidate can perhaps get only one chance in a lifetime. To deny him such right when obviously there are serious anomalies in the rules and the prescribed format framed thereunder would be extremely inequitable. In cases of grant of licence through lottery all applicants must be clearly made aware about all requirements without giving rise to any scope for future confusion.
38. We, therefore, allow the appeal of Baba Loknath Enterprises being M. A. T. No. 325 of 2003 and dismiss the appeal of M/s. Ashirbad being A. P. 0. t. No 18 of 2003. Accordingly, the State Government is directed to do the needful in the matter.
39. No order as to costs.
Later:
40. Stay as prayed for, is considered and refused.
41. Let urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
Narayan Chandra Sil, J.
42. I agree