Sudhamoy Mondal vs The Collector Bankura and Others

G.N. Ray, J.—This appeal is directed against order dated 12th August, 1986 passed in C. 6. No. 9021(W) of 1986. By the aforesaid order the learned Trial Judge disposed of the writ petition made by the appellant inter alia challenging the legality and validity of the decision of settling foreign Liquor ''off'' shop in a locality known as Mejhia in the district of Bankura. It appears that the West Bengal Government decided to settle a Foreign Liquor ''off shop at Mejhia and for that purpose applications were invited from the intending candidates and a large number of candidates offered themselves for the grant of settlement of such Foreign liquor ''off'' shop at Mejhia. On scrutiny of the candidates in order of merit, the Respondent No. 5 was selected as the first candidate and two other candidates were also numbered as second and third in order of preference in the event the respondent no. 5 would fail to obtain licence of such Foreign Liquor ''off'' shop at Mejhia. The appellant Sri Sudhamoy Mondol was one of such candidates but the licensing authority was not in favour of settling a Foreign liquor ''off'' shop at Mejhia in favour of Sudhamoy Mondol and it appears that the father of Sri Sudhamoy Mondol has been settled with a Foreign Liquor ''off'' shop at Benachiti in the district of Burdwan and under the existing policy of the Government if any family member of an applicant has already been settled with such Foreign Liquor ''off'' shop licence, such candidate will not be considered for the grant of settlement. The appellant Sri Sudhamoy Mondal thereafter moved a writ petition before this Court and the said writ petition was disposed of on 25th day of April, 1986 to the following effect : - It appears that this Writ petition challenges the selection of a person for grant of an ''off'' shop licence for the year 1983-84 which has become infructuous. There was an interim order which has also expired. I am not expressing any opinion on the merits of the case. Respondents will be at liberty to proceed in accordance with law.

The writ petition is thus disposed of and the Rule is discharged as above.

There will be no order as to costs.

Therafter the present appellant moved another writ petition before this Court whereupon C.O. No. 9021(W) of 1986 arose. The appellant moved the said writ petition on the ground that the licence granted to the respondent no. 5 had been extended without following the provisions of the Bengal Excise Act, 1909 and the Rules framed thereunder. It was contended before the learned Trial Judge on behalf of the appellant that the settlement and/or grant for running a Foreign Liquor ''off'' shop at Mejhia in favour of the respondent no. 5 could not be extended except by going through the whole procedure of selection of candidates once again and the State Government and its officers had acted mala fide in granting the licence in favour of the respondent no. 5. It appears that on 13th of April, 1984 the licensing authority had passed an order for settlement of the Foreign liquor ''off'' shop at Mejhia in favour of the respondent no. 5 but the appellant moved the earlier writ petition in 1984 and obtained an interim order. Accordingly, the decision to give settlement of a. Foreign liquor ''off'' shop at Mejhia in favour of the respondent no. 5 could not be given effect to but from the affidavit of the State Respondents it transpires that a temporary license for six months was granted in favour of the respondent no. 5. The learned Trial Judge disposed of the second writ petition concerning CO. No. 9021 of 1986 by his order dated 12th of August, 1986 inter alia to the effect that the earlier Rule was disposed of on the ground of becoming infructuous and the grant of license for the year 1983 could not be quashed at a point of time when the earlier Rule was discharged on the 25th of April, 1986. Against the aforesaid decision of the learned Trial Judge, the instant appeal has been preferred.

Mr. Gautam Chakraborty, learned Counsel appearing for the appellant has contended that the settlement of the Foreign Liquor ''off'' shop is always made for one year and for grant of license the provisions of sections 30 to section 36 of Bengal Excise Act are required to be followed. He has submitted that it was only for the year 1983 that the respondent no. 5 was selected to be the most suitable candidate for the grant of settlement of Foreign Liquor ''off shop at Mejhia but simply for that reason for the subsequent years the said respondent no. 5 cannot as matter of fact be selected and not only the site where such Foreign liquor ''off'' shop will be situated but also the person in whose favour such settlement should be made have got to be decided in accordance with the provisions of sections 30 to section 36 of the Act and the Rules framed under the said Bengal Excise Act. He has, therefore, contended that for the subsequent years, the State respondents are bound to follow the procedure for the grant of settlement of Foreign Liquor ''off'' shop in the same manner in which the original grant could have been made for running a Foreign Liquor ''off shop at Mejhia. Mr. Chakraborty, learned Counsel for the appellant has contended that the learned Trial Judge has misconceived the scope and import of the Writ petition made by the appellant and has proceeded erroneously on the footing that after the exoiry of the period of settlement the writ petition had become infructuous and the prayer made by the appellant could not be entertained any further. Mr. Chakraborty has produced the certified copy of the memo no. 1605 (6) dated 30th of January, 1986 issued from the office of Superintendent of Excise, Bankura for the purpose of showing that for the grant of excise license during 1986-87 an invitation of objection thereto should be made and report of compliance should be sent to the Superintendent of Excise, Bankura positively on the 11th of March, 1986. Mr. Chakraborty, learned Counsel for the appellant has submitted that the said notification issued from the office of the Superintendent of Excise, Bankura clearly demonstrates that for each year of settlement the procedure under sections 30 to 36 are required to be followed. In this connection Mr. Chakraborty has referred to a decision of this court made in the case of Dhirendra Nath Hazra Vs. Collector of Excise and Others, . It has been held in the said decision that although section 30 to section 34 of the Bengal Excise Act did not apply in the case of Foreign Liquor ''off'' shop, a license is required to be issued to enable a vendor to deaf with the Foreign liquor even in the matter of settlement of ''off'' shop, and it has also been held in the said decision that under sub-section (9) of section 86, the State Government may prescribe restrictions under which or the conditions on which, any licence, permit or pass may be granted. Rule 58 to 60 of the Rules framed under the said Excise Act have also been referred to in the said decision. Mr. Chakraborty has therefore contended that simply because for a particular year the respondent no. 5 was found to be the most suitable candidate in whose favour the settlement of Foreign Liquor ''off shop was intended to be made, it cannot be contended that the said respondent no. 5 should be granted with such settlement of Foreign Liquor ''off'' shop at Mejhia for subsequent years.

Mr. Sumitra Dasgupta, learned Counsel appearing for the State respondents has submitted that for the purpose of grant of Foreign Liquor ''off'' shop the State Government must decide as to whether in a particular area such Foreign Liquor ''off'' shop should be settled or not. In the instant case, not only for the year 1983-84 but for subsequent years the State Government has decided that in Mejhia the Foreign Liquir ''off'' shop should be settled. Hence, there is no difficulty in granting settlement of Foreign Liquor ''off'' shop at Mejhia. So far as the selection of licensee is concerned, the learned Counsel for the State Respondents has further contended, that after scrutinising various candidates who applied for such settlement of Foreign Liquor ''off'' shop, the respondent no. 5 was found to be most suitable in order of merit and such selection by the licensing authority has not been annuled by any higher authority and such selection has not also been annuled by this Court. He has, therefore, contended that there will be no difficulty in giving settlement in favour of the said Respondent No. 5 for the subsequent years provided there is sanction for grant of a Foreign Liquor ''off'' shop at Mejhia by the State Government and there is also no difficulty with regard to the site where the said Respondent No. 5 intends to carry on business of Forign Liquor ''off'' shop and wherein on the basis of the temporary license, granted in his favour he is actually carrying on the business of Foreign Liquor ''off'' shop. Mr. Dasgupta, learned Counsel appearing for the State Respondents has contended that upto 1986 the said site has been found to be suitable and for the next period of settlement viz. from April 1, 1987 the suitability of the site will be gone into in accordance with the rules and or instructions issued in this regard. The learned Counsel for the State has submitted further that since the litigation had been pending before this Court and an order of injunction was granted by which settlement for one year in favour of respondent No. 5 could not be given effect to, the State Government had granted temporary license so that there should not be any loss of revenue.

The learned Counsel appearing for the respondent no. 5 has also submitted before us that the settlement of Foreign Liquor ''off'' shop has three ingredients viz. (i) sanction of such shop by the State Government in a particular locality, (ii) selection of person in whose favour settlement will be made and (iii) the actual site where such Foreign Liquor ''off'' shop will be run. The learned Counsel for the respondent No. 5 has further contended that so far as the sanction is concerned, the State. Government had decided in 1983-84 that there would be a Foreign Liquor ''off'' shop at Mejhia and for subsequent years, such sanction of ''off'' shop in that locality has been made by the State Government. So far as the selection of personnel to vend liquor from such off - shop is concerned, the learned Counsel has contended that on scrutiny of the eligibility of the different candidates, the respondent no. 5 was found to be the most suitable candidate and although the respondent no. 5 cannot claim as a matter of right that even for subsequent years the settlement must be given in his favour, in view of provisions of section 44 - A of the Bengal Excise Act, 1909 and the Rules and or the instructions framed or issued by the State Government, if there is sanction for grant of foreign liquor ''off shop licence in a particular locality for the subsequent year and if the respondent No. 5 can offer suitable site for the grant of such license for the subsequent year also either by offering the same site or in the case of objection any other suitable site then his license has to be renewed. It is only when there is no sanction for such foreign liquor ''off shop in the locality or the respondent no. 5 becomes ineligible or disqualified in the meantime or the site at which he proposes to run the foreign liquor ''off'' shop is not suitable and he is not in a position to offer any other suitable site in the locality, the respondent no. 5 may lose his right of renewal. The learned counsel has contended that so far as the appellant is concerned, the apellant cannot be considered for the grant of settlement of foreign liquor ''off'' shop because of the existing policy of the Government that a member of his family has already been granted such license of a foreign liquor ''off'' shop. In the aforesaid circumstances, the appellant cannot be permitted to contend that there should be fresh selection of candidates so that he can also offer himself for being selected as a suitable candidate for the grant of settlement of a foreign liquor ''off shop at Mejhia.

After considering the respective contentions made by the learned Counsel appearing for the parties it appears to us that the previsions of Section 30 to 34 of the Bengal Excise Act, 1909 have no application for the grant of settlement of a foreign liquor ''off shop. It appears to us that the principle to be followed in the matter of settlement of Excise shop including foreign liquor ''off'' shop is governed by the circular dated 21st January, 1979 issued by the Government of West Bengal, Department of Excise. It appears to us that although the settlement of foreign liquor ''off shop is made from year to year subject to the sanction by the State Government of such foreign liquor shop in the locality in question and subject to the suitability of the site in which foreign liquor ''off shop is proposed to be run, the person who has been found to be eligible for grant of" settlement of such foreign liquor ''off'' shop can reasonably except renewal of such settlement from year to year unless for want of sanction or on the score of any unsuitability of the site or for the licencee''s becoming disqualified for other reasons to get such renewal, the said licencee cannot get renewal. In our view, the question of selection of personnel afresh for every year will not arise and in the facts of the instant case, the present appellant cannot claim to get settlement of foreign liquor ''off'' shop at Mejhia because of the existing policy of the State Government that when a member of the family of an applicant has already been granted such settlement, such candidate will not be preferred for grant of settlement. We may note here that it is also not the case of the appellant that the license granted to the father of the appellant is not in existence and a such, there is no bar in giving settlement in his favour at Mejhia. Moreover the Respondent no. 5 having been found to be most suitable candidate to get such settlement of an ''off shop in the locality of Mejhia should not be discarded in the absence of unsuitability of the site offered by him and in the absence of his becoming disqualified for other reasons in the meantime,. It appears to us that although on 13th April, 1984 the licensing authority had decided to grant the settlement in favour of the Respondent no. 5 such settlement in fact could not be made and as aforesaid, sometime in 1986 a temporary license was granted in his favour. In the aforesaid circumstances, we dispose of this appeal by directing the State Respondents to extend the period of temporary license upto 31st March, 1987 and to consider the suitability of the site offered by the respondent no. 5 for the next period of settlement viz. April 1st, 1987 to 31st March, 1988 by considering the objections, if any, in respect of the said site. If the said site is found suitable and or the said Respondent'' No. 5 is in a position to offer a suitable site at Mejhia in case the existing site is found unsuitable then the Respondents will grant settlement in favour of the said Respondent No. 5 for the period commencing from 1st April, 1987 to 31st March, 1988 and thereafter the Excise Authorities will consider the case of renewal in accordance with the existing conditions of renewal.

The appeal is accordingly disposed of.

There will be no order as to costs.

K.M. Yusuf, J.

I agree.