DILJIT KAUR Vs. COLLECTOR AND DISTRICT MAGISTRATE BURDWAN

JUDGEMENT

(1.) The present writ petition has been filed challenging the Notification vide Memo No. 917(2)/E(W) dated 18.3.89 holding the hearing and enquiry by the respondent no. 2 the Additional District Magistrate, Asansol and to restrain the respondent no. 1 the Collector and the District Magistrate, Burdwan from acting in furtherance of the hearing held on 20. 3. 1989 and/or acting in any manner in continuation of the proceeding and/ or issuing the licence thereof and other consequential reliefs as stated in the writ petition itself. It is stated in detail that the petitioner is the owner of the premises no. 3, G. T. Road (previously known as old 48, G. T. Road) at Asansol, District Burdwan and all the floors were let out to Joginder Singh Attwal since deceased. The portion within the first floor and the second floor were vacated in terms of a decree of Civil Court. The said Joginder Singh Attwal since deceased allegedly carried on business on the ground floor of the said premises in the trading name "Attwal Brothers" as retail sellers of foreign liquors (wines) on the strength of an "off" licence issued in the name of Joginder Singh Attwal. The petitioner allegedly filed two separate suits for eviction and obtaining possession with regard to the first floor and second floor. She filed a separate suit for eviction regarding the ground floor before the Subordinate Judge at Asansol being Title Suit No. 46 of 1977 and the same is still pending for decision. It is further alleged that Joginder Singh Attwal since deceased had been running 'off' and 'on' licences for foreign liquor in the first and second floors and thereafter was allowed and granted licences by the Excise Authority to shift the 'on' licence in the ground floor and carry on both 'off' and 'on' licences in the said floor of the premises in- spite of objection raised by the petitioner and the bank authorities who came to occupy as, tenants in the said premises. Being aggrieved by the, said purported action of the authorities concerned the petitioner filed a writ application before this Court and by Order dated 31st January, 1983 Chittotosh Mookherjee J. (As His Lordship then was) was pleased to dispose of the matter giving liberty to the petitioner to file objection before the renewal of the licences afresh and the Licensing Authority was directed to consider and dispose of the objection filed by the petitioner in accordance with law. Ac- cordingly, the petitioner filed objection dated March 18, 1983 before the respondent nos. 2 and 3 and prayed for a personal hearing in accordance with law. The petitioner, was, however, given an opportunity of hearing on 13th April, 1983 and before that the respondent no. 1 renewed the said licence for 20 (twenty) days without considering the objection of the petitioner. However, the petitioner being aggrieved by the grant of provisional licence which is alleged to be illegal, unjust and mala fide moved this Court by filing another writ application and B. C. Roy J. (As His Lordship then was) issued a Rule Nisi and granted an interim order restraining the private respondents to carry on the business of foreign liquor "On and Off" until the licence is renewed and granted in accordance with law. It is placed on record that on 22nd of December, 1988 the said Rule being C. R. No. 4876(W) of 1983 came up for final hearing before Bhagabati Prasad Banerjee J. and the Rule was disposed by directing the respondent no. 1 to consider and. hear ,any objection that may be filed by the persons who are competent. There was a specific direction that the matter should be considered and/or heard by the Collector himself. It is further placed on record that pursuant to the ,order of Bhagabati Prasad Banerjee J., an objection was filed on 10th of January, 1989 stating inter alia that in any case Sanjiv Atwal son of Joginder Singh Atwal should not obtain any licence to carry on "off and On" business within the premises no. 3, G. T. Road (Old 48, G. T. Road, Asansol) and the petitioner was allegedly surprised that despite such objection the Notification No. 293 (10) (EW) dated. 28.2.89 was issued permitting the licence- holder to carry on "Off and On" foreign liquir business at the ground floor of the aforesaid premises. Thus being aggrieved the petitioner has again come to this Court on the ground that the respondents have acted illegally in issuing the notification being Memo No. 917(2)/E(W) dated 18.3.1989 to the effect that the applicant had not produced any document to prove his right to run the aforesaid business. It is strongly alleged that the Additional District Magistrate took an erroneous view in holding that it was not his business to look out where there is existing land Of the, building and the, owner had objected to the same or not before preliminary objection of site. It is highlighted that it is incumbent upon the respondents to satisfy themselves as regards the site nowhere there was any 'No Objection Certificate' from the owner to the holder of the premises. The attention of the Court has been drawn to the fact that the action of the respondents are wholly illegal and violative of Rule 4 Sub-Rule (2) of section 86 of the Bengal Excise Act.

(2.) An application for amendment has been filed and the same was allowed by this Court in terms of the order dated 7.7.89. The petitioner by way of amendment has further prayed for a Writ of Mandamus be issued directing the respondent authorities to rescind, recall and/or cancel the existing licence and further not to renew the excise licence as to "Off and On" shops, in premises no. 3, G. T. Road, Asanso1, Burdwan.

(3.) The writ petition is seriously contested by the private respondent no. 5, Sanjiv Atwal. The allegations in the writ petition have been controverted and it is placed on record that the Excise Authorities before allowing, to shift the business to the ground floor considered all the formalities and there is nothing wrong for the respondent no. 5 to carry "Off and On" Licences at the site as per provisions of the Bengal Excise Act and the objections raised by the petitioner are wholly erroneous.