SANTIBALA CHATTERJEE Vs. STATE

JUDGEMENT

(1.) - The present Revisional Application is at the instance of two erstwhile licencees of a liquor shop which was being- used both as an off-shop and on-shop, situate at 567, Diamond Harbour Road, Calcutta-700034. The subject matter of dispute of the instant application is an Appellate Order of the Commissioner of Excise, West Bengal dated 6.12.86, substantially, affirming the order passed by the Collector of Excise South 24-Parganas dated 3.5.86. The Appellate Authority, inter alia, directed that "the country spirit shop shall not continue in the present location and its Location shall be changed by shift within the current year, that is, by the 31st March 1987 in accordance with the Rules and provisions of law on the licencees offering a suitable alternative site whereupon the Collector may renew the licence at such site".

(2.) The relevant facts are more or less admitted. The shop in question had been existing at the disputed site for decades; during the widening of Diamond Harbour Road in 1875, a Sitala Temple had to be shifted to very close proximity of the shop; close to the shop there are also two Nursing Homes, an x-ray installation and a School as also a Mother Dairy Stall; challenging the fitness of the site a writ application had been moved (C.O. 17355 (W) of 1985) by respondent No.6 to the present application as President, Sitala Temple Managing Committee and the same had been disposed of by an Order dated 2nd April, 1986 by S. C. Sen, J. inter alia, directing the petitioner in the said Civil Order to file Objection to the grant of licence in respect of the country liquor shop within fortnight from the date of the order and such objection was directed also to be disposed of by the Excise Authorities in accordance with the law and by a Speaking Order within 4 (four) weeks .from the date of receipt of the said Objection with liberty to the. Excise Authorities to issue a provisional licence in favour of the present petitioners till the disposal of the said Objection; the disposal of the impugned proceedings are by way of compliance with the said order.

(3.) The point which has fallen for my determination is whether the Excise Authorities are empowered and/or are statutorily entitled to make the renewal of the excise licence in favour of the petitioners conditional on shifting of the site of the shop. Sections 30 to 35 of the Bengal Excise Act and Rules 61 and 62 of the Bengal Excise Rules framed under Section 85 of the Act require consideration for disposal of the aforesaid point. The said Sections and Rules embody provisions for preparation of list of places for which it is proposed to grant licences for the retail sale of spirit for consumption on the vendor's premises for the next period of settlement, publication of such List, entertainment of objections relating to such proposed sites, consideration by the Collector of such objections and decision and the selection of sites and grant of licence by the Collector, consideration by the Commissioner of the Division of the List of Sites, objections and opinions sent to him by the Collector and forwarding the same with his own opinion and recommendation to the Excise Commissioner for final consideration by the Excise Commissioner and modification or annulment of any order of or licence granted by the Collector. As far as Rule 61 is concerned the same enumerates the prohibited sites for liquor shops which are or may be used as on-shops and Rule 62 enumerates the principles to be observed, as far as practicable, by the Collector in granting licences for new shops or established liquor shops. In other words Rules 61 and 62 really lay down the procedures in details for carrying out the purposes of Sections 30 to 35 of the Act. It would be convenient to quote, at this stage, Rule 61 of the Bengal Excise Rules framed under Section 85 of the Bengal Excise Act: