SUDHAMOY MONDAL Vs. THE COLLECTOR BANKURA AND OTHERS

JUDGEMENT

(1.) This appeal is directed against order dated 12th Aug., 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:-

(2.) Thereafter 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 Aug., 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.

(3.) 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 expiry of the period of settlement the writ petition had become in fructuous 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 Jan., 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, 63 CWN 857 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.