Calcutta High Court
Prabir Kumar Chatterjee vs The State Of West Bengal And Ors. on 8 September, 1994
Equivalent citations: (1995)2CALLT332(HC)
JUDGMENT Basudev Panigrahi, J.
1. The writ petitioner, having been aggrieved, by an order of cancellation of retail vending licence passed by the authorities has approached the Court for quashing the same. The petitioner claims that their family, at least since the time of his father has been obtaining licence as a retail vender. His father obtained the licence as a retail vender who continued as such till his death. After his demise, even it was granted to his mother who died in the year 1977. From then on, the said licence in respect of mother, has been renewed and/or settled by the competent authority under the provisions of Rule 209 of the Consolidated Rules framed under Section 86 of the Bengal Excise Act, 1909, and the Circular Notification made thereunder. His place of business has been delineated at village Sunderchack within Kulti P.S. District-Burdwan.
2. It is claimed by the petitioner that some-times in the 2nd week of April, 1992, he went to his native village Jourgram where his other family members used to reside and stayed till 17th April, 1992. He met an accident on his way as a result of which he had to be hospitalised. Therefore, he could not open the shop due to his illness and noncooperation by his salesmen. During his illness, he could not procure Country Spirit Bottles and there was nil balance by the time of visit of the Officer-in-charge of Excise, Barakar. The petitioner implored the authorities for producing the Medical Certificate and other relevant papers as to why he could not procure the stock during his illness. But, it appears that his oral prayer could not impress the authority, subsequently, he received a letter-memo No. 664/E (W) dated 2nd May, 1992 directed the petitioner to show-cause in writing by 11.5.92 as to why his licence shall not be suspended or cancelled under Section 42/1(C) of the Bengal Excise Act. In response to the said notice, the petitioner allegedly sent a letter requesting the authority to grant some time for submission of his show-cause. Again on 15.5.92 another show-cause notice was sent to the petitioner by the Superintendant of Excise, Burdwan asking him to submit the reply by 18.5.92. The petitioner in compliance with the letter dated 15.5.92 submitted his reply on 18.5.92 indicating the grounds why he failed to maintain the minimum stock of Country Spirit as required under the provision of the Act. Despite such reply, it appears that the Additional District Magistrate without proper application of mind passed an order, inter alia, cancelling the licence issued to the petitioner.
3. Although, the service of notice on the government pleader is filed, but, it appears neither the government pleader nor anyone from his panel has taken any steps in this case. Even before taking up hearing the petitioner was directed to serve a notice on the panel lawyer, Samarendra Nath Bose, but conspicuously he failed to take any steps in the case.
4. The learned counsel for the petitioner, Mrs. Motriyee Ghosh, urged with stronge intensity of conviction that the impugned order passed by Additional District Magistrate is whimsical, illegal arbitrary and irrational. It is submitted that when a show-cause notice was issued to the petition, who accordingly applied for time for the same. Within a short spell, the authority had issued another show-cause notice and the petitioner immediately following the same submitted his show-cause. But it seems the authority without considering the grounds mentioned in the show-cause or giving an opportunity of hearing to the petitioner passed an unilateral order cancelling his license. Therefore, the action of the Additional District Magistrate should be characterised to have been made with closed mind and for extraneous consideration.
5. Mrs. Motriyee Ghosh, the learned counsel appearing for the petitioner, further high lighted the authorities have deliberately flouted the provisions and wrongly cancelled the licence of the petitioner.
6. The petitioner had received a notice when he was called-upon for submission of his reply by 18.5.92. From the annexure of the petitioner it is established that he submitted his reply on 18.5.92. It is further revealed from the reply as to why he failed to maintain the minimum quantity of liquor and open the shop. The Additional District Magistrate passed an order on 19.5.92. On a close reading of the order, it does not indicate that he considered the show-cause of the petitioner. It is further argued by the petitioner that he applied for certified copy and, even, that was not granted to him.
7. The Affidavit-in-opposition though sworn before the Court was never tendered. On the contrary the learned counsel for the petitioner filed a xerox copy of the same. While going through the Affidavit-in-opposition it is mentioned inter alia, that the certified copy of the order purported to have been passed by the Additional District Magistrate regarding the cancellation of licence was delivered on 17.7.92. The petitioner in course of hearing produced the certified copy of the order. On a careful reading of the same, it appears that the Additional District Magistrate passed the order of cancellation as suggested by the office on 19.6.92. But it does not appear that the show-cause sent by the petitioner was ever placed before him or considered. The grounds on which the authority felt to cancel the licence has not been indicated. In other words, when an order which is likely affected the rights of the party should be passed only after hearing him and it should be based on sound reasonings.
8. The order is said to have been passed under Section 42(1)C of Bengal Excise Act, 1909 while appreciating the case I feel it necessary to quote the division :-
"Power to cancel of suspend license, permit or pass-(l) Subject to such restrictions as the State Government may precribe, (by rule made under Section 85, sub-section (2) clause (i) ) the authority who granted any license, permit or pass under this Act may cancel or suspend it ....................................
a) ....................................
b) ....................................
c) in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or"
It is undoubtedly true that the authority exercising the power under the provision of the Act has a right to cancel or suspend the licence granted to the licensee/vendor. But it cannot be said that it has untramelled power to cancel the same without considering the fact as to why the vendor made any such breach.
9. On a cogitation of the impunged order it did not indicate as to what breach the petitioner has committed so that the authorities were compelled to cancel the licence.
10. From the rationale of the decision cited supra, it fully supports the contention of Mrs. Ghosh. It is strange how the authority could be oblivious to the situation that no order could be passed, either without hearing a person or without a speaking order against whom it is purported to be made.
11. In this case there is a clear departure from the principle of natural Justice.
12. Thus, in the above back ground I cannot but hold that the authority has cancelled the license of the petitioner illegally without observing proper procedure. Thus, in my opinion, the licensing authority should be wary and circumspect while cancelling the licence to avoid the criticism of vagaries or arbitrariness.
13. In the above back drop of case I must hold that the cancellation order passed by the Additional District Magistrate and Collector, Asansol dated 19.5.92 vide Annexure 'D' was illegally passed without either proper consideration of the petitioner's show-cause or after giving a proper opportunity of hearing which is accordingly quashed.
In the result, the writ petition is allowed but without any order as to cost.