The determination of a license under Rule 4(2) of the West Bengal Excise (Change in Management) Rules, 2009 is not absolute and provides two layers of chances for reversal: regularization and reply to show cause.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. Learned counsel for the petitioner argues that the impugned orders, respectively of the Excise Commissioner refusing to renew the excise license of the petitioner no. 1-Company, and of the Collector cancelling the said license, are illegal, being de hors the statute and the rules framed thereunder. It is submitted that the matter is governed by West Bengal (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as, “the 2003 Rules”) and the West Bengal Excise (Change in Management) Rules, 2009 (in brief “the 2009 Rules”).

2. It is argued that the limited scope of the Excise Commissioner in considering the question of renewal of the petitioners’ excise license was delineated by the previous orders of co-ordinate Benches of this Court. However, the Excise Commissioner traversed beyond the scope of the Rules, in refusing to so renew.

3. As regards the statutory challenge already preferred before the appropriate authority by the petitioners against the said refusal to renew, it is unambiguously submitted by learned counsel for the petitioner, on the query of Court, that the petitioners do not want to proceed with the said appeal any further and choose to incorporated the challenge to the said order of the Excise Commissioner in the present writ petition as well, along with the challenge to the subsequent cancellation of license.

4. It is argued that there was no breach of Rule 4(2) of the 2009 Rules by the petitioners in the present case. Learned counsel contends that there is inherent contradiction between the different paragraphs of Rule 4 of the 2009 Rules.

5. Rule 4(1) requires an application for a change in management to be considered by the Collector. Such a change in management, juxtaposed to the role of Collector in Rule 4(3), leads to the only possible inference that the license is being sought to be transferred to some other entity, for which an application is required to be made to the Collector.

6. It is argued that Rule 4(3) seems unworkable and contrary to law, since it militates against Rule 4(1). If, by legal fiction, the license stands determined, there can be no consideration of any application by the Collector. Again, the Collector being subordinate to the Competent Authority (State Government) for the purpose of approval of change in management, it cannot be perceived that even after such approval by the Government, the Collector will consider an application for similar purpose. Such a construction of the Rule, it is argued, is absurd.

7. Again, Rule 4(2) creates a legal fiction of determination of license of a company on any change of membership of the company or in the management thereof unless prior approval of the State Government is obtained. Hence, the State Government is the prior approving authority. In such a case, the role of the Collector, which is two stages subordinate to the State Government in terms of hierarchy in appeal, cannot be conceived. If, by legal fiction, the license stands determined, it is argued, then how can any question arise for further enquiry for granting permission by the Collector?

8. It is next argued that the legislators imply permission of Collector to be required for change in management of a partnership firm, society and cooperative society, and the approval of the Excise Commissioner for companies. Therefore, a company and other juristic entities have been treated differently by legislators in the matter of change in management or change of membership.

9. Again, the second part of Rule 4(2), although made subject to the requirement to the approval by the State Government, makes a distinction between change in management and change in Board of Directors of a company. This part of the sections speaks of a post facto application to the Collector for regularization, which leaves no scope of discretion to the Collector.

10. Thus, there is clear inconsistency and