The Collector had jurisdiction to consider the matter afresh pursuant to the order of the Excise Commissioner and the petitioner was estopped from questioning the Collector's jurisdiction for the first time in the writ application.

Satyabrata Sinha, J.

The petitioner in this application, inter alia, has prayed for the following reliefs :-

"(a) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to forbear from giving effect to or further effect to and/ or recall, set aside, rescind and cancel the impugned order dated March 27, 1996 passed by the learned Excise Commissioner in the appeal case regarding settlement of the Hatipota Country Spirit Shop;

(b) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to forbear from giving effect to or further effect to and/or rescind, recall, cancel and set aside the impugned order dated November 18, 1996 passed by the District Magistrate and Collector, Jalpaiguri and the memo bearing No. 1178(2)/E dated December 24, 1996 issued by the Superintendent of Excise, Jalpaiguri (being Annexure 'F' collectively to the writ application) regarding settlement of the said excise licence jointly with the petitioner and the respondent No. 5;

(c) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to allow the petitioner to run the Hatipota Country Spirit Shop as sole licensee in terms of the order being memo No. 1074/E dated October 25, 1994 issued by the respondent No. 4 being Annexure 'D' to the writ application".

2. The petitioner and the private respondents are related to each other and are contenders for grant of licence for a liquor shop. The relationship between the parties shall appear from the following genelogical table :-

1st wife ---------- Kanchan Lama ---------- 2nd wife died in 1958

died long before the Sanja Dolma Lamani

2nd marriage of her died on 25.02.93

husband

Choi Namgyal Smt. Padma Lamani

(deaf & dumb) alias Padma Yonjone,

(Respondent No.5).

wife of Moni Kumar

Yonjone (deceased)

Phurba Lama

(Writ-petitioner).

3. Admittedly Kanchha Lama was the original licensee and on his death a licence was granted in favour of Smt. Sanja Dolma Lamani, his second wife, as the son of Kanchha Lam was deaf and dumb. In 1993, Smt. Sanja Dolma Lamani died leaving behind her the private respondent as her heir and legal representative. The petitioner had applied for the said licence. The private respondent also applied for the said licence. A temporary licence was granted in favour of the petitioner purported to be in terms of Rule 209 of the Rules framed under s. 86 of the Bengal Excise Act. He had filed an application for renewal thereof. The private respondent, however, prayed for revision of the said order and by an order dated 14th October, 1993 the District Magistrate stayed the operation of the earlier order passed by him on 28th September, 1993 whereby the licence was granted.

4. Allegedly upon communication of the order dated 5th October, 1994 passed by the Superintendent of Excise, the petitioner took over the charge of the excise shop. In the meantime an appeal was preferred by the private respondent before the Excise Commissioner, West Bengal without impleading the petitioner as a party therein.

5. By reason of an order dated 27.3.1996 the said appeal was allowed and the entire matter was remitted back to the Collector. The Collector thereafter gave opportunity of hearing to both the parties and by reason of the impugned order dated 18th November, 1996 as contained in Annexure 'F' to the writ application disposed of the matter.

6. Mr. Arunava Ghosh, the learned Counsel, appearing on behalf of the petitioner has raised two contentions in support of this application. The learned Counsel submits that the Collector could not have exercised any jurisdiction in the matter pursuant to the order passed by the Excise Commissioner as in the said proceedings, the petitioner was not impleaded nor was given an opportunity of hearing. The learned Counsel submits that in that view of the matter there cannot be any waiver of his right only be