Sumita Dutta vs Principal Secretary Of Excise & Ors

Arijit Banerjee, J

(1) This is an application filed by the appellant for recall and / or modification of the judgement and order dated 16 May 2018 passed by a co-ordinate Bench of this Court of which one of us (Arijit Banerjee, J.) was a member, disposing of MAT 1574 of 2017. By the said judgement and order, the order of the learned Single Judge was affirmed and the appeal was dismissed.

(2) Although, in the cause title of this application it was initially mentioned that the application is also for review of the Division Bench order dated 16 May, 2018, when the matter was taken up for consideration on 19 June, 2019, learned advocate representing the appellant/applicant submitted that this application is essentially for modification and/or recall of the order dated 16 May, 2018 and not for review. As such, we directed the advocate on record of the applicant to correct the cause title of the papers before us by deleting the word 'review' wherever it appeared. This was duly done by learned advocate on record for the applicant.

(3) The brief facts of the case leading to the present application are as follows.

(4) On 10 March, 2004 the appellant made an application for grant of license under the Bengal Excise Act, 1909 read with the Rules framed thereunder, for operating "On Shop" liquor business at a rented premises at Mandeville Gardens, Calcutta. During the pendency of the appellant's application, the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 underwent amendment and the bar of operating a liquor shop at a distance of 300 ft. or less from specified institutions like educational institutions, hospitals, temples etc., was increased to 1000 ft. The appellant approached this Court by filing W.P. No. 17283(W) of 2004 contending that the unamended Rules should be applied while considering the appellant's application since the application had been filed prior to amendment of the Rules. By an order dated 11 October, 2004 a learned Judge of this Court disposed of the writ petition. The operative portion of the said order reads as follows:

"Hence, it would be proper for me to direct the authorities to consider the matter taking into consideration that the process started earlier than that of the notification came into force and the authority shall also consider the case of the petitioner that the petitioner has already spent huge money for getting such licence.

The above consideration shall be made by the authorities within four weeks from the date of communication of this order."

(5) Subsequently, the appellant's application for licence was allowed by the concerned authority vide order dated 30 December, 2009 by rejecting the objection raised by the private respondents herein, who are co-owners of the premises from where the appellant proposed to run her liquor business. The private respondents preferred a statutory appeal before the Appellate Authority which was dismissed on 10 August, 2012. The revisional application filed by the private respondents herein was dismissed by the Principal Secretary, Excise Department, Government of West Bengal, being the Competent Authority, by an order dated 10 July, 2013.

(6) The private respondents herein approached this Court by filing W.P. No. 31007(W) of 2014 assailing the order of the Revisional Authority. The learned Single Judge held that the concerned Authority should have considered the appellant's prayer for grant of licence in the light of the amended Excise Rules. In coming to this conclusion the learned Judge relied on the Hon'ble Supreme Court's decisions in the cases of State of Kerala &Anr. -vs.- Six Holiday Resorts Pvt. Ltd., (2010) 5 SCC 186 and Somdev Kapoor-vs- State of West Bengal &Ors., (2014) 14 SCC 486.The learned Judge set aside the order of the Revisional Authority and directed the said Authority to revisit the issue in the light of the observations made by His Lordship in the said order, after affording reasonable opportunity of hearing to the writ petitioners (private respondents herein) and the private respondent in the writ petition (appellant herein).

(7) The said order of the learned Single Judge was carried in appeal by the private respondent in the writ petition being MAT 1574 of 2017. The said appeal was disposed of on merits by the judgment and order dated 16 May, 2018 of which recall is prayed for in the present application.

(8) We have heard the learned counsel for the parties. The order of which recall/modification is sought for, was passed after hearing all the concerned parties. The co-ordinate Bench recorded the submissions of all the parties and came to a reasoned conclusion. It was not an ex-parte order which would perhaps have entitled the appellant to apply for recall of the order upon showing sufficient cause for the appellant's non-appearance on the relevant date. We find absolutely no reason to recall or modify the said order.

(9) Learned counsel for the appellant urged three points before us. In effect learned counsel attempted to persuade us to reopen the matter and rehear the appeal. This according to us is not permissible. If the order under consideration is erroneous in law, the remedy of the appellant lies before a higher forum. However, since we permitted learned counsel for the appellant to argue certain points before us, we propose to deal with the same briefly.

(10) Firstly, it was urged that the earlier Division Bench did not advert to the issue of delay in filing the writ petition by the private respondents herein, although the point of delay was urged before the Division Bench. Without going into the controversy as to whether or not such point was urged, we notice that before filing the writ petition, the private respondents herein exhausted the alternative remedy available under the Excise Law by firstly, making a representation to the Excise Collector; secondly, challenging the decision of the Excise Collector before the Excise Commissioner by way of a statutory appeal; thirdly, by way of filing arevisional application before the Principal Secretary, Excise Department, Government of West Bengal. Being unsuccessful in the departmental proceedings, the private respondents filed the writ petition on 10 September, 2013 assailing the Principal Secretary's order dated 17 July, 2013 and the orders of the authorities below. In that view of the matter we find absolutely no delay, far less inordinate delay, in the private respondents approaching the Writ Court. The private respondents filed the writ petition within two months from the date of the order passed by the Principal Secretary.

(11) Secondly, it was urged that according to the Hon'ble Supreme Court as observed in Six Holiday Resorts Pvt. Ltd. (supra) and Somdev Kapoor (supra), the Rules in force as on the date of consideration of application for excise licence must be applied. Learned counsel conceded that the date of filing of the application would not be relevant. However, when the Authorities started considering the appellant's application, the unamended Rules were in operation and hence the same should be applied. This was also the view of the Authorities as otherwise it would not have granted the licence in favour of the appellant. We are unable to accept this submission made on the behalf of the appellant. The observations of the Hon'ble Supreme Court have to be understood in the proper context. In Six Holiday Resorts Pvt. Ltd. (supra),the Hon'ble Apex Court observed that where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, consideration should be with reference to the law applicable on the date when the Authority considers the application for grant of licence and not with reference to the date of application. We understand such observation to mean that such an application should be decided on the basis of law applicable on the date of the decision as to whether or not to grant the licence. That is the date when the concerned authority can be said to be considering the application. In this case, the licence was granted to the appellant admittedly in 2009. Hence, the Rules in vogue as on the date of the grant of licence would be applicable.

(12) Finally, it was urged that the Division Bench did not consider the notification issued by the Excise Commissioner of West Bengal, on 28 September, 2005 regarding settlement of excise licences in favour of the applicants who had applied for the same before publication of the Excise Department's Notification No. 527-Ex dated 2 April, 2004. This contention is noted only to be rejected. The Division Bench clearly considered and discussed the said notification in its order which is presently under consideration.

(13) None of the three points urged on behalf of the appellant has any merit. We repeat that we could have rejected the present application on the short ground that it is not maintainable. However, since learned counsel for the appellant argued the aforesaid points, we deemed it proper to deal with the same.

(14) In the result this application fails and is dismissed without any order as to costs.

(15) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.

I agree.