SANKAR DATTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner had applied for a foreign liquor 'ON' shop licence. Necessary enquiry was conducted and, thereafter, the report was placed before the Additional District Magistrate (T) and Collector of Excise, North 24 Parganas together with local objections that had been received. The petitioner and the objectors were heard on November 17, 2011. The Collector upon perusal of the enquiry report and its enclosures was of the view that the site offered by the petitioner is lawful and that he had also complied with other requirements and, therefore, the application for licence deserved consideration. However, considering the objections raised by the local people, which included number of Councillors of the local municipality, the Collector was of the view that he was "under lawful compulsion to apply the directive principles as laid down under rule 62/85 of the B. E. Act, 1909". He, therefore, proceeded to reject the application of the petitioner for licence. The order passed in this respect by the Collector dated February 16, 2012, is the subject matter of challenge in this writ petition dated June 25, 2012.

(2.) Preliminary objection to the maintainability of the writ petition has been raised by Mr. Sengupta, learned advocate for the official respondents and Mr. Sarkar, learned advocate for the private respondents. They contended that the Bengal Excise Act, 1909 (hereafter the Act) provides a remedy of appeal to the petitioner before the Excise Commissioner and, therefore, the petitioner ought to be relegated to the appellate forum.

(3.) The argument that a writ petition is not maintainable because an alternative remedy is available is not at all sound. Availability of an alternative remedy does not oust the jurisdiction of the writ court. Such availability may provide thought to the court as to whether the writ petition should be entertained or not. Judicial discretion has to be exercised bearing in mind the facts and circumstances of each case. The objection has to be characterized as one relating to entertainability of the writ petition despite availability of an alternative remedy, and not maintainability thereof. No decision has been cited laying down the law that availability of an alternative remedy renders a writ petition not maintainable. It is for the court to decide whether to entertain it or not.