RAHIPADA SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Having heard Mr. Sircar for the petitioner and Mr. Datta for the State respondents, it appears that the present writ petition has been filed by the petitioner for issuance of a writ of mandamus commanding the respondents to revoke, cancel, rescind the Order contained in Memo No. 2043, dated 2-9-88 issued by the Additional District Magistrate, Murshidabad, being Annexure 'E' to the writ petition and to renew the licence in the sole name of the petitioner in respect of a pachai shop at Murshidabad and also to restrain the respondents from giving effect to the Order as communicated by Annexure 'F' to the writ petition by inviting the eligible intending candidates in prescribed form for settlement of excise licence for the excise shop for the period of 1988-89. It is stated in the petition that originally the excise licence stood in the name of the petitioner and one Sm. Snehalata Saha. Said Snehalata Saha died on January 29, 1988. After her demise, the petitioner has been running the said shop upon representation to grant necessary licence in his name. It appears from the materials on record that the petitioner was given an opportunity of hearing on 19-5-88 regarding settlement of the said Pachai Shop. It appears further that by another letter, dated 2-9-88 regarding the petitioner's application, dated 30-8-88 he was informed that no further extension will be allowed to him beyond 30-9-88 for running the said shop and the petitioner was directed to wound up the business by 30-9-88 and make over the charge of relevant registers papers, etc., to the Officer-in-Charge of excise of Kandi 'B' Circle. A step has, however, been taken to issue the notice inviting applications as aforesaid. Both the steps have been challenged by the writ petitioner in the present writ petition.

(2.) Mr. Sarkar has strongly argued that there has been non-compliance of Rule 209 of the West Bengal Excise Compilation, Part 2 indicating inter alia that on the death of a licensee the Collector may renew the licence on the same terms in favour of a representative of the deceased, if he be satisfied that such representative is fit to hold it, and on the condition that any arrears due from the deceased licensee are recovered before the licence is so renewed. In such case, no fresh deposit need be called for. Mr. Sarkar has further drawn the attention of this Court to a circular issued by the Commissioner of Excise on 20-11-59 indicating inter alia that in disposing of a revision petition in the year 1953, the Hon'ble Excise Minister was pleased to hold that an excise licence held in partnership with another person terminates on the death of a Joint licensee and that the surviving licensee cannot as a matter of right have any claim to the licence. It goes on further indicating that in the interest of revenue the surviving partner may be allowed to continue to hold the licence provided he is a suitable candidate and the Hon'ble Minister disposed of the revisional application with the direction that the Collector concerned would make a new settlement if he did not consider the surviving joint licensee a suitable person to hold the licence in question.

(3.) Mr. Datta has however, tried to support the case of the respondents by drawing the attention of the Court to Section 37 of the Bengal Excise Act, 1909.