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High Court Of Calcutta
A.K. Sengupta & N.A. Chowdhury, JJ.
Bijoy Basanta Singha- Appellants
Vs
State Of West Bengal - Respondents
Decided on: Apr 02, 1993
EXCISE - LICENSE - SETTLEMENT OF FOREIGN LIQUOR 'OFF' LICENSE SHOP - PROCEDURE TO BE FOLLOWED - RIGHT OF OBJECTION - RIGHT TO CARRY ON BUSINESS - REASONABLE RESTRICTIONS - BENGAL EXCISE ACT, 1909 (BENGAL ACT V OF 1909), SECTIONS 30, 31, 32, 33, 34, 35, 35A, 36, 37, 85 - WEST BENGAL TAXATION LAWS (AMENDMENT) ORDINANCE, 1993 - WEST BENGAL EXCISE (LICENSING BOARDS) RULES, 1950, RULE 21.
Fact of the Case:
The appellant, a resident of Ushagram, Assansol, filed a writ petition challenging the grant of a foreign liquor 'off' license shop in his locality. He claimed that the Excise Authorities had not followed the procedure prescribed under the Bengal Excise Act, 1909 and the Rules framed thereunder while inviting applications for settlement of the 'off' license shop. The appellant also contended that he had a locus standi to challenge the grant of license as he was a resident of the locality where the shop was proposed to be set up.
Finding of the Court:
The court held that the appellant had a locus standi to challenge the grant of license as he was a resident of the locality where the shop was proposed to be set up. The court also held that the Excise Authorities were required to follow the procedure prescribed under the Bengal Excise Act, 1909 and the Rules framed thereunder while inviting applications for settlement of the 'off' license shop. The court further held that the Excise Authorities were required to invite opinions and objections from the concerned authorities before the settlement of license whether 'off or 'on'.
Issues: 1. Whether the appellant had a locus standi to challenge the grant of license? 2. Whether the Excise Authorities were required to follow the procedure prescribed under the Bengal Excise Act, 1909 and the Rules framed thereunder while inviting applications for settlement of the 'off' license shop? 3. Whether the Excise Authorities were required to invite opinions and objections from the concerned authorities before the settlement of license whether 'off or 'on'?
Ratio Decidendi: 1. The court held that the appellant had a locus standi to challenge the grant of license as he was a resident of the locality where the shop was proposed to be set up. The court relied on the fact that the appellant had raised objections to the grant of license in the past and that he had a genuine interest in the matter. 2. The court held that the Excise Authorities were required to follow the procedure prescribed under the Bengal Excise Act, 1909 and the Rules framed thereunder while inviting applications for settlement of the 'off' license shop. The court relied on the provisions of the Act and the Rules which require the Excise Authorities to invite opinions and objections from the concerned authorities before the settlement of license. 3. The court held that the Excise Authorities were required to invite opinions and objections from the concerned authorities before the settlement of license whether 'off or 'on'. The court relied on Rule 21 of the West Bengal Excise (Licensing Boards) Rules, 1950 which requires the Excise Authorities to invite opinions and objections regarding the sites and the nature of the license from the concerned authorities.
Final Decision: The court disposed of the appeal by directing the Licensing Authorities to consider all applications already submitted for the year 1992-93 for 'off' license shop at the sites proposed being the subject matter of the writ application after inviting opinions and objections from those who are entitled to raise such objections and give opinions regarding the sites and the nature of the license. The court also directed the Excise authorities to issue a notice inviting opinions and objections regarding the sites and the nature of the license within two weeks from the date of communication of the order specifying the date within which such objections and opinions should be submitted.
1. THIS appeal is directed against the order passed on 18th March, 1993, by a learned Single Judge of this Court vacating the interim order granted on 26th February, 1993 on a writ application filed by the appellant.
2. THE subject matter of dispute relates to settlement of an 'off' licence foreign liquor shop. The case of the appellant writ petitioner is that he is a resident of Ushagram, Assansol where one of the 'off' licence shops was proposed to be set up. According to the appellant the Addl. District Magistrate, Assansol invited public objections and opinions on 9th December, 1986 regarding granting of 2 Excise 'off license for sale of foreign liquor as ushagram and New Road By-pass Road Crossing, Assansol. The proposal for granting license at Ushagram, Assansol was, however, dropped on the ground that it comes adjacent to children park etc. The said proposal related to the year 1987-88. Again a proposal for granting the foreign liquor 'off' license at ushagram. Asansol for the year 1990 - 1991 was made and the Addl. District magistrate vide his memo dated 29th December, 1989 invited public objections and opinions thereto. The appellant claims that he was a signatory to the objection raised by the local people reiterating the grounds on which the proposal for grant of hotel-cum-bar license for the periods 1987-88 and 1988-89 was dropped in the locality. It was stated that the said grounds would also apply to the rejection of the proposal of 'off license. On 16th March, 1992 the Addl. District Magistrate invited application for grant of 2 off' licenses for the year 1992-93. If the case of the appellant that provisions of Bengal Excise Act, 1909 (hereinafter referred to as the said Act)as well as the Rules framed thereunder have not been followed in inviting application for settlement of 'off license shop.
3. THE said writ application was moved exparte. It appears that no prayer was made for dispensation with compliance of the Rule 27 of the Appellate Side rules relating to the applications under Article 226 of the Constitution of India.
4. BY the interim order dated 26th February, 1993 the Excise Authorities were restrained from giving any effect or further effect to the Memo dated 11th february, 1993 of the Superintendent of Excise Burdwan, West Area, Assansol whereby interview was called on 3rd March, 1993 to the intending licensees for settlement of foreign liquor 'off' shop at Ushagram, Assansol and further restrained them from granting the license at the proposed site at Ushagram and New Road Bypass Road crossing, Assansol without following the provisions as laid down under Sections 32 to 36 of the said Act and the Rules. Thereafter, an application for vacating the interim order was made by the respondent No. 6, Suranjit Kundu, who was called for interview for the settlement of foreign liquor 'off' shop at Ushagram. But when he went for interview he was told by the Excise Authorities that interview had been stayed by an order passed by a learned Single Judge of this Court. The learned Judge was prima facie satisfied that the appellant-writ petitioner does not have any locus standi to question the grant of license. The learned Judge was also of the view that while the appellant acquiesced to the grant of license for the hotel bar which serves liquor, it does not in his mouth to object to the issuance of 'off' license shop. The learned Judge after considering all the facts and circumstances vacated the said interim order dated 26th February, 1993 and fixed hearing of the main writ application on 26th April, 1993. The learned Judge also observed that the question of extension of time for grant of license for the period 1992-93 beyond 31st March, 1993 would be determined at the final hearing. The learned Judge did not grant any stay of operation of the said order. Hence this appeal.
5. MR. B. C. Roy, ld. Senior Advocate appearing for the appellant has submitted that the learned Judge was not justified in holding
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