Calcutta High Court (Appellete Side)
Bibhas Kumar Das vs The State Of West Bengal And Others on 6 September, 2013
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
WP No. 19420(W) Of 2011
BIBHAS KUMAR DAS
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS
For the Petitioner: Mr Kashi Kanta Moitra, Sr Adv.,
Mr Piyush Chaturbedi, Adv.,
Mr Asit Baran Ghosh, Adv.,
Mr Anup Lahiri, Adv.,
Mr Prasanta Banerjee, Adv.
For the Respondents: Mr Jayotosh Majumdar, Adv.,
Mr Soumitra Mukherjee, Adv.
Hearing concluded on: September 3, 2013.
BEFORE SANJIB BANERJEE, Judge Date: September 6, 2013.
SANJIB BANERJEE, J. : -
The petitioner questions the propriety of an order rejecting the petitioner's application for grant of a foreign liquor bar-cum-restaurant licence on the ground that the application should have been considered on the basis of the law as applicable as at the date of the application and not as at the date of consideration of the grant.
The application for the licence was made in the year 2006. At such time, inter alia, Rule 61 of the consolidated rules made under Section 85 of the Bengal Excise Act, 1909 governed the field; and the policy mandated a vicinity qualification. The application was not disposed of within a reasonable time, whereupon the petitioner carried WP No. 19892(W) of 2007 to this court, complaining that though a favourable enquiry report had been furnished by the excise authorities and the local panchayat samity in respect of the site chosen by the petitioner, the Collector had not taken a decision in such regard. That petition was allowed on November 23, 2007 by directing the District Magistrate and Collector, Purba Medinipur, "to dispose of the application in the light of enquiry report and in the light of the no objection by passing a reasoned order within a period of four weeks from the date of communication of this order." The Collector passed an order on January 14, 2008 observing, inter alia, that since the proposed bar was to be located on NH-41, the "approval may cause increase in drunken driving leading to accidents and loss of life." The Collector opined that there were several issues that had to be taken care of before the application for licence could be considered in right earnest and left the petitioner herein free to furnish the necessary information before the excise department for a comprehensive report to be prepared on the proposed site.
The processing of the papers took considerable time but it must be recognised that the petitioner did not challenge the qualified rejection of the application by the Collector's order of January 14, 2008. A second writ petition, WP No. 11649(W) of 2011, was filed complaining that "for undisclosed reasons the authority hearing (the petitioner's) application for excise licence in August 2010 has not yet given his decision." Such second petition was disposed of by an order of July 28, 2011 requiring the Collector to "hear the petitioner afresh and dispose of the application for excise licence within eight weeks from the date of communication of this order." In pursuance of the order passed on the second petition, the Collector passed an order on September 21, 2011 observing, inter alia, as follows:
"One of the essential criteria for grant of license for retail sale of liquor at a new site is to have a distance from National Highway/State Highway above 720.0 feet. From the report of the Deputy Excise Collector, Haldia Range, it is seen that the distance from the offered site to the National Highway (N.H.41) is 120.0 feet (Approx). The proposed site does not fall within any Municipal Corporation or Municipality or any other urban body.
However, the petitioner have represented today that the premises extend beyond 720 ft so may be considered and suitable for the purpose of 'On' Shop licence.
Hence I am of the opinion that joint verification may be done within seven days and report with map/plan may be presented before me."
Again, the petitioner did not challenge such order of the Collector, though it must have been contemporaneously communicated to the petitioner in view of the order on the second writ petition; and there is no grievance in such regard. Upon the enquiry being conducted in accordance with the Collector's order of September 21, 2011, the matter was placed again before the Collector on October 10, 2011 when the petitioner was present before such official. The petitioner did not question the contents of the report filed by the Deputy Excise Collector, Haldia Range upon conducting an inspection in presence of the petitioner on September 23, 2011. On perusal of the sketch map and report, the Collector referred to Rule 8(3) of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail of Sale of Liquor and Certain Other Intoxicants) Rules, 2003 to observe that the offered site was ineligible for grant of a licence for retail sale of liquor. It is such order of October 10, 2011 which has been assailed in the present proceedings.
The petitioner submits that the power conferred under Section 85 of the Act to make rules cannot be seen to confer any authority to introduce rules with retrospective effect. It is the petitioner's further contention that the rules that may be made under Section 85 would be procedural in nature and incapable of retrospective application. The petitioner says that since the order on the first writ petition required the Collector to consider the application on the basis of the reports furnished, the Collector could not have applied Rule 8(3) of the said rules of 2003 which was introduced by a notification with effect from November 25, 2008. The petitioner refers to the relevant notification and the use of the expression "with immediate effect" appearing in its second line to suggest that it would apply to applications made upon the notification coming into effect and would be irrelevant in considering pending applications. The petitioner says that he had, on the basis of the existing rules, purchased the land and had constructed thereon and the State was estopped from altering the rules of the game once the application had already been made.
The petitioner says that upon the relevant notification coming into effect, there is a discrimination in the treatment of similarly placed persons as existing licensed sites suffering from the similar distance disability continue to do business but aspiring retail vendors are arbitrarily chosen for dissimilar treatment. The petitioner asserts that the Collector committed a jurisdictional error which is capable of correction in the present proceedings. The petitioner labels the Collector exercising authority under the said Act as a tribunal of limited jurisdiction and argues that such a tribunal would not have the requisite power to rule on its own authority. In the context of the Collector's order being in derogation of the order passed by this court on the first writ petition, the petitioner relies on a judgment reported at (2002) 1 Cal LT 76 (STP Ltd v. Nirmaljit Singh Hoon). Paragraph 40 of the report recongises the principle that "when an action is taken in violation of an order of court the resultant action is not only contumacious but is void for illegality."
Upon this court expressing its doubt as to the principal legal proposition canvassed by the petitioner that the application should have been considered on the basis of the law as prevailing on the date of the application and not as at the date of the consideration thereof, the petitioner has, in keeping with the high traditions of the Bar, placed a judgment reported at AIR 1981 SC 711 (State of Tamil Nadu v. Hind Stone) where it was observed that though the application for any grant "should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant ... with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application." Again, the petitioner has pointed out another judgment reported at (2007) 9 SCC 78 (M.P. Ram Mohan Raja v. State of T.N.) where the principle as enunciated in Hind Stone was quoted and relied on. The petitioner, however, asserts that there was no principle of law declared by the Supreme Court in either case within the meaning of Article 141 of the Constitution, but the orders in both cases must be regarded as being under Article 142 thereof.
The State has referred to a judgment reported at (2010) 11 SCC 661 (State Bank of India v. Raj Kumar) and placed paragraph 15 of the report wherein the court relied on a previous judgment rendered in the context of liquor vend licences, to hold that "where the applications required processing and verification the policy which should be applicable is the one which is prevalent on the date of grant and not the one which was prevalent when the application was filed." The court emphasised that the exception to such rule was where a right had already accrued or vested in the applicant before the change of the policy.
The principal ground urged by the petitioner cannot be accepted in view of the axiomatic principle of law that an application of the present nature has to be governed by the rules as applicable as at the date of the consideration thereof rather than the rules as prevalent at the time of the application being made. Such principle should be regarded as the law as consistently laid down by the Supreme Court and cannot be regarded as applicable only in the facts of a particular case and not as a general proposition of law. In any event, Rule 8(3) of the said rules of 2003 prohibits the grant of a licence in certain circumstances and the operation thereof has nothing to do with the date of the application.
As to the other ancillary grounds canvassed by the petitioner, it cannot be lost sight of that if the petitioner is not entitled to the grant directly, the petitioner cannot obtain it indirectly. The principle of promissory estoppel or legitimate expectation would, ordinarily, not apply in a matter of the present kind for the applicant for a licence to suggest that a right vested in the applicant on the basis of the eligibility criteria as prevailing as at the date of the application such that only the rules as applicable as at the date of the application had to be taken into consideration for the grant. With respect, such argument militates against the fundamental legal proposition that no right inheres in an applicant for the application to be considered on the basis of the rules as prevailing as at the date of application. At any rate, the factual basis for urging the ground of promissory estoppel is absent in the petition. It must also be appreciated that the petitioner had accepted the Collector's order of September 21, 2011 wherein the Collector referred to the distance disability and called for a report to be prepared in such regard. In the petitioner participating in the measurements taken by the Deputy Excise Collector, on September 23, 2009 without any reservation and permitting the report filed thereon to be carried to the Collector in course of the petitioner's application being considered, the petitioner can now not be heard to say the purpose of the measurement or the propriety in directing such measurements to be taken was without jurisdiction.
Section 85 of the Act confers wide authority on the state government to "make rules to carry out the objects of this Act" and, in its inclusive and non- exhaustive second sub-section mandates that the state government may make rules for prohibiting the grant of licences for the retail sale of any intoxicants at any place or within any local area described in the rules, or for defining the places in the vicinity of which shops for the retail sale of any intoxicants shall not ordinarily be licenced. Section 2(12a) defines 'intoxicant' to mean, inter alia, any liquor. No limitation may be read into Section 85 of the Act, in view of the expression "may make rules to carry out the objects of this Act", to suggest that only procedural matters may be covered by the rules and not substantive matters.
The expression, "with immediate effect", in the opening limb of the relevant notification covers grant of liquor licences. Such expression applies to grants made after the publication of the notification and governs the consideration of an application. In the light of the notification and the duty cast thereby on the Collector, there does not appear to be any error of jurisdiction committed by the Collector in declining the grant on the basis thereof.
There is no merit in the petition and WP No. 19420(W) of 2011 is dismissed, but without any order as to costs.
Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)