Smt. Sikha Saha vs The State Of West Bengal & Ors
2022 Latest Caselaw 2878 Cal

                                      1


                   IN THE HIGH COURT AT CALCUTTA

                   (Constitutional Writ Jurisdiction)

                            APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                          WPA 13597 of 2009

                            Smt. Sikha Saha

                                Versus

                    The State of West Bengal & Ors.



           Mr. Sandip Kumar Bhattacharyya
           Mrs. Mamata Khatun
           Mr. Soumyadeep Mukherjee
           Ms. Sayani Ahmed
           Mr. Satyam Mukherjee
                                                   .....For the Petitioner
           Ms. Chaitali Bhattacharyya
           Mr. Debasish Ghosh
                                                    .....For the State
           Mr. Anant Shaw
           Mr. Ravi Kumar Dubey
                                          ......For the Respondent No. 5

Heard on               : 11.03.2022

Judgment on            : 17.05.2022

Krishna Rao, J.: The petitioner has challenged the order passed by the

Principal Secretary, Excise Department, Government of West Bengal dt.

20.05.2009 wherein the appeal preferred by the private respondent no. 5

against the order passed by the Collector of Excise, Murshidabad dt.

09.09.2008 was set aside and confirmed the order passed by the District

Magistrate dt. 13.07.2007.

In the year 1931, the business of Retail Selling of Country Sprit,

Coloured and Flavoured Country Sprit and beer in the town of

Ragunathgunj was granted to Sri Rajendra Nath Saha, since deceased, who

was the Father-in-Law of the petitioner.

In the year 1972, the respondent no. 6, Nimai Chandra Saha, the

husband of the petitioner herein who is elder son of the original licensee i.e.

Rajendra Nath Saha was inducted in the said business. The respondent no.

5 namely Amar Nath Saha was also inducted in the said business in the

year 1991. Since 20.06.1991 till 1994 the licenses were jointly held by

Rajendra Nath Saha, Nimai Chandra Saha and Amar Nath Saha.

On 21.07.1994, the original licensee namely Rajendra Nath Saha

expired and after the death of Rajendra Nath Saha, the licenses were jointly

granted in favour of the respondent no. 5 and the respondent no. 6 with the

approval of the concern authorities.

The respondent no. 6 being an Assistant Teacher in the High School

at Raghunathgunj Boy's High School and was also the Secretary/member of

Jangipur Urban Co-operative Credit Society Limited and due to his personal

reasons, the respondent no. 6 had made an application on 27.03.2002 to

the District Magistrate and Collector, Murshidabad seeking approval/

permission for voluntary retirement from the licenses and also requested for

transfer of the licenses of the above mentioned business in the name of

respondent no. 5.

On receipt of the request made by the respondent no. 6, the District

Magistrate and Collector, Murshidabad after giving an opportunity of

hearing and considering all the relevant documents as submitted by the

respondent no. 6 granted approval for voluntary retirement of the

respondent no. 6 from the licenses and transferred the licenses in the name

of the respondent no. 5 which was duly approved by the competent

authority.

After the approval granted by the State Government and Excise

Commissioner, West Bengal, the licenses were granted in the name of the

respondent no. 5 as a sole licensee and the respondent no. 5 had started

running the business since 24.02.2003.

On 18.10.2006, the petitioner had made an application to the

Collector, Murshidabad requesting for incorporation of her name as joint

licensee in the license issued in the name of the respondent no. 5. In the

representation submitted by the petitioner, the petitioner has submitted

that the husband of the petitioner retired from the license with a condition

that petitioner would be inducted as a joint licensee in place of her husband

as per partnership deed executed on 27.03.2002 between the respondent

no. 5 and the petitioner in presence of witnesses and also submitted that

petitioner is also running the business jointly with the respondent no. 5

after retirement of her husband.

After receipt of the representation made by the petitioner an enquiry

was conducted by the District Magistrate and Collector, Murshidabad and

after enquiry, the District Magistrate and Collector, Murshidabad had

rejected the claim made by the petitioner on 30.10.2007.

Being aggrieved and dissatisfied with the order passed by the District

Magistrate and Collector dt. 30.10.2007, the petitioner has preferred an

appeal before the Excise Commissioner, West Bengal and on 09.09.2008,

the Excise Commissioner, West Bengal had disposed of the appeal preferred

by the petitioner by setting aside the order passed by the District Magistrate

and Collector, Murshidabad dt. 30.10.2007 and directed to settle the license

jointly in the name of respondent no. 5 as well as in the name of the

petitioner.

Being aggrieved and dissatisfied with the order of the Excise

Commissioner, the respondent no. 5 had preferred an appeal before the

Principal Secretary, Excise Department. The appeal filed by the respondent

no. 5 was disposed of by the Principal Secretary on 20.05.2009 by setting

aside the order passed by the Excise Commissioner and confirmed the order

passed by the District Magistrate and Collector, Murshidabad.

Mr. Sandip Kumar Bhattacharyya, Ld. Counsel representing the

petitioner submits that the husband of the petitioner, the respondent no. 6

realized that it would not proper for him to continue as a partner in the said

business and accordingly he expressed his desire to induct his wife, the

petitioner herein, as partner in the said business in his place and got

himself retired from the said business. The said issue was discussed with

the respondent no. 5 and it was agreed between the respondent no. 5 and 6

that the petitioner would be one of the partner after the retirement of the

respondent no. 6 from the said business.

The Counsel for the petitioner further submits that on 27.03.2002, a

deed of partnership was executed between the respondent no. 5 and the

petitioner and in the said deed of partnership it was agreed to take the

petitioner as a partner of the said business to share the profit and loss in

the said business equally.

The Counsel for the petitioner further submits that on the same date,

the respondent no. 6 had submitted an application to the District Magistrate

and Collector, Murshidabad praying for retirement from the said business

and also issued No-Objection for transfer of the entire business in the name

of the respondent no. 5.

The Counsel for the petitioner submits that on 04.02.2003, the Excise

Commissioner has accorded approval of the proposal of the respondent no.

6 after the lapse of one year and in the mean time there was no license was

in existence in the name of respondent no. 5 as the license was expired on

31.03.2002.

The Counsel for the petitioner further submits that the respondent no.

5 had took away the original deed of partnership executed between the

petitioner and the respondent no. 5 and also the deed of retirement entered

between the respondent no. 6 and the respondent no. 5 on 27.03.2002 on

the pretext that the respondent no. 5 will produced the same before the

Excise Authority for incorporating the name of the petitioner in the licenses

along with the respondent no. 5.

The Counsel for the petitioner submits that the respondent no. 5 had

also obtained signature of the petitioner and her two daughters on blank

papers for incorporation of the name of the petitioner in the license issued

by the Excise Department. The Counsel for the petitioner further submits

that the signature obtained by the respondent no. 5 in the blank paper was

later on converted into No Objection Certificate of the petitioner and their

daughter.

The Counsel for the petitioner further submits that at the time of

induction in the partnership business, the petitioner has contributed an

amount of Rs. 4,75,000/- towards the share of her capital by way of two

account pay cheque in the name of the respondent no. 5.

The Counsel for the petitioner further submits that in terms of the

partnership deed dt. 27.03.2002, the respondent no. 5 used to withdraw Rs.

10,000/- per month till July, 2006 being his portion of profit from the said

business.

The Counsel for the petitioner further submits that in the month of

August, 2006, the respondent no. 5 failed to pay the monthly share to the

petitioner and thereafter the petitioner came to know that the respondent

no. 5 had played fraud upon the petitioner and her daughters by

transferring the license of the business in the name of the respondent no. 5

alone and, accordingly the petitioner has made a complaint to the District

Magistrate in 18.10.2006. On 30.10.2007, the District Magistrate and

Collector has rejected the prayer made by the petitioner on the ground that

the allegation made against the respondent no. 5 in her complaint was a

deception and has no jurisdiction to adjudicate such allegation.

Being aggrieved by the Order dt. 30.10.2007 passed by the District

Magistrate and Collector, Murshidabad, the petitioner has preferred an

appeal before the Excise Commissioner and accordingly after detailed

enquiry conducted by the Excise Commissioner; the Excise Commissioner

has passed an order by setting aside the order passed by the District

Magistrate and directed to include the name of the petitioner in the license.

The Counsel for the petitioner further submits that the respondent no.

5 had preferred an appeal before the Principal Secretary, Excise Department

and on 09.09.2008 the Principal Secretary has set aside the order of the

Excise Commissioner and upheld the order passed by the District

Magistrate.

The Counsel for the petitioner submits that the Principal Secretary

while passing the order has held that the partnership deed dt. 27.03.2002

as "Void" though the respondent no. 5 has challenged the said deed before

the Civil Judge, Junior Division, Jangipur, Murshidabad and the said suit is

pending before the Hon'ble Court.

The Counsel for the petitioner further submits that the Principal

Secretary failed to consider the first clause of the partnership deed dt.

27.03.2002 wherein it is mentioned that Nimai Chandra Saha retired from

the business and it was agreed between the partners that Sikha Saha, wife

of retiring partner of Nimai Chandra Saha will be taken as partner in the

said business in place of Nimai Chandra Saha under the self same terms

and conditions incorporated in the deed of partnership and a fresh deed of

partnership shall be executed by the parties.

The Ld. Counsel for the petitioner further submits that when the

statutory provisions ordinance the removal of jurisdiction from the domain

of the Excise Department in respect of the matters connected with a license

for consideration by the Judicial fora under Section 83 (b) of the West

Bengal Act, 1909 then the Excise Department cannot avoid taking action

thereon.

The Counsel for the petitioner further submits that as per Section 83

(b) the officers of the Excise Department can file a complaint before the

appropriate Court and not by an ordinary citizen.

The Counsel for the petitioner further submits that the petitioners

have raised the issue before the Principal Secretary for initiating appropriate

action against the respondent no. 5 before the court of law but the

authorities failed to take appropriate steps against the respondent no. 5.

The Counsel for the petitioner further submits that the Principal

Secretary failed to appreciate that the respondent no. 5 has committed fraud

upon the petitioner and got the license in his favour by playing fraud before

the authorities' inspite of knowing the fact the authorities failed to take any

action against the respondent no. 5 but has decided that the license granted

in favour of the respondent no. 5 is legal.

The Counsel for the petitioner prays for setting aside the order passed

by the Principal Secretary, Excise Department and to allow the petitioner to

be inducted in the said license.

The Counsel for the petitioner further submits that an order is

required to be passed directing the respondent authorities to take an

appropriate step against the respondent no. 5 for committing fraud by the

respondent no. 5.

Per contra, Learned Counsel for the respondent no. 5 submits that the

respondent no. 6 was working as Assistant Teacher in the High School of

Ragunathgunj and due to his personal reason, the respondent no. 6 made

an application on 27.03.2002 to the District Magistrate and Collector,

Murshidabad seeking approval for voluntary retirement from the license

requested for transfer the licenses of the said business in the name of the

respondent no. 5. As per the request made by the respondent no. 6, the

District Magistrate after giving an opportunity of hearing and considering all

the relevant documents as submitted by the respondent no. 6 granted

approval of voluntary retirement of the respondent no. 6 from the licenses

and transfer the licenses in the name of the respondent no. 5 which was

duly approved by the competent authority.

The Ld. Counsel for the respondent no. 5 further submits that the

Excise Commissioner, West Bengal had granted approval and accordingly

licenses were granted in the name of the respondent no. 5 as sole licensee

and since then the respondent no. 5 is running the business. It is further

submitted that as the respondent no. 6 has retired from the business and

accordingly, the respondent no. 5 had paid Rs. 4,74,612.52/- to the

respondent no. 6 being the investment/share of the respondent no. 6 by way

of two cheques and the respondent no. 6 had duly accepted the same.

The Ld. Counsel for the respondent no. 6 further submits that the

petitioner had the knowledge that with the consent of the respondent no. 6

had voluntarily submitted his resignation from the licenses and accordingly,

the authorities have issued the licenses in the name of the respondent no. 5

but only to mislead the authorities and to harass the respondent no. 5, the

petitioner had made a false complaint after the lapse of 4 ½ years for

incorporation of her name in the licenses along with the respondent no. 5.

The Ld. Counsel for the respondent no. 6 further submits that the

petitioner is claiming her share in the said business/licenses in terms of the

Partnership Deed dt. 27.03.2002 but the said Partnership Deed is a forged

document and accordingly the respondent no. 6 has filed a suit challenging

the said Partnership Deed which is pending before the Civil Court for

adjudication.

The Ld. Counsel for the respondent no. 5 further submits that the

petitioner in connivance and collusion with the respondent no. 6 who is the

husband of the petitioner with an ulterior motive to harass the respondent

no. 5 has filed the complaint before the District Magistrate.

The Ld. Counsel for the respondent no. 5 further submits that as per

Rule 4 of consolidate Rules made under Section 85, the Principal Secretary,

Excise Department, Government of West Bengal is having power to decide

the appeal. The Ld. Counsel for the respondent no. 5 further submits that

Section 54A of the Bengal Excise Act, 1909 provides penalty for

contravention of Section 85 and 86 and condition of license but in the

instant case the petitioner failed to prove that the respondent no. 5 has

violated any condition under the licenses to attract Section 54A of the

Bengal Excise Act.

The Ld. Counsel for the respondent no. 5 further submits that the

Excise Commissioner after detail enquiry, investigation, applications,

records and recommendation of the Excise Collector had transferred the

license in the name of the respondent no. 5 and as such the allegation made

by the petitioner is totally false and baseless and accordingly, the

respondent no. 2 has rightly set aside the order of Excise Commissioner and

upheld the order passed by the District Magistrate.

Ld. Counsel for the respondent no. 5 relied upon the judgment

reported in 2005 (3) CHN (Goutam Hazra & Anr. -Vs- Pinaki Hazra & Ors.).

Heard the Ld. Counsel for the parties considered the documents

available on record.

Admittedly the license was jointly recorded in the name of respondent

no. 5 and respondent no. 6, the respondent no. 6 realized that it was not

conducive for him to continue as partner in the said business and

accordingly has resigned from the said business and license was granted in

the name of the respondent no. 5 on 24.02.2003. After the retirement of the

respondent no. 6 from the said license, the respondent no. 5 had paid an

amount of Rs. 4,74,612.52 by way of two cheques to the respondent no. 6

on 18.03.2004 and on 26.03.2004. Since May, 2003 till October, 2006 there

was no grievance against the respondent no. 5 and all of a sudden on

18.10.2006 the petitioner being the wife of the respondent no. 6 had made

complaint that due to pre occupation of her husband i.e. the respondent no.

6, intend to resign from the said business and to induct the petitioner as

partner in the said business in the share of the respondent no. 6 along with

the respondent no. 5 and accordingly, a Partnership Deed was executed

between the petitioner and the respondent no. 5 on 27.03.2002. It is the

case of the petitioner that the respondent no. 5 had cleverly got the license

in his name without inducting the petitioner in the said business by taking

the benefit of a signature of the petitioner and her daughters in the blank

paper by using the same as No-Objection.

The complaint made by the petitioner was duly considered by the

District Magistrate and after proper enquiry and after giving an opportunity

of hearing of all the parties had passed an order by disposing of their

complaint filed by the petitioner by passing the following order:-

"Having considered all the points I find that,

i) Ex-joint license, Sri. Nemai Chandra Saha applied for retirement from his business without any condition.

ii) Sri. Nemai Chandra Saha never mentioned the existence of the so called "Deed of agreement" and his conditional retirement.

iii) The allegation against the existing license is nothing but a case of deception and this forum has no jurisdiction to adjudicate such allegation.

iv) The existing licensee, Sri. Amar Nath Saha allowed his sole licenseeship as per formal process satisfying the existing provisions of the relevant Act & Rules.

v) No person can run his business without valid license and as such voluntary retirement of Sri. Nemai Chandra Saha can not be constructed otherwise.

Hence I hereby reject the prayer of Smt. Sikha Saha and all concerned be informed accordingly."

The petitioner being aggrieved with the order of the District Magistrate

had preferred an appeal before the Excise Commissioner, West Bengal and

the Excise Commissioner had disposed of the said appeal on 09.09.2008 by

passing the following order:-

"I, therefore, find that the prayer of the present appellant has a strong ground. I am also satisfied that the present appellant has been deprived by her brother-in-law as he is denying her right into the business I am, therefore, of the view that the right of the present appellant should be restored without any delay. Accordingly, I set aside the order passed by the District Magistrate & Collector, Murshidabad on 30.10.2007 in this connection. It is, also ordered that the license shall be settled jointly with the present holder of the license viz., Sri Amar Natha Saha alongwith the present Appellant Smt. Sikha Saha, immediately.

The present appeal is accordingly disposed of."

The respondent no. 6 being aggrieved with the order of the Excise

Commissioner had preferred an appeal before the Principal Secretary and

the Principal Secretary has disposed of the appeal by passing the following

order:-

"20. After considering various submissions made on behalf of the appellant and the respondents and also after going through the order of the District Magistrate and Collector of Excise, Murshidabad, my

observations on various findings and submissions, as considered relevant, are as below:

i) The Collector of Excise, Murshidabad has categorically stated that, as per the provision of Rule 207 of the Bengal Excise Rules, no transfer of license shall be made except with the previous permission of the Collector and the approval of the Excise Commissioner.

The views of the District Magistrate and Collector of Excise, Murshidabad are confirmed by me, particularly in the context of Rule 207 read with Rule 208 of the Bengal Excise Rules, keeping in view the decision of the Hon'ble Calcutta High Court in the matter of Goutam Hazra & Anr. vs. Pinaki Hazra & Ors. (F.A. No. 207 of 2002) reported in 2005 (3) CHN 364, where the specific provisions except Bengal Excise Rules regarding deemed transfer were highlights, The said partnership Deed of March 27, 2002, in my opinion is void.

ii) The Collector had opined Shri Amar Nath Saha fit and qualified to hold such a license and has also recorded that Shri Nemai Chandra Saha had appeared before the District Magistrate and Collector in a personal hearing. He had also recorded that the prayer of Shri Nemai Chandra Saha mentions no conditions of the presence of any Deed of Agreement.

In view of the factual findings of the District Magistrate and Collector of Excise, Murshidabad and no denial of Shri Nemai Chandra Saha, the views of the District Magistrate and Collector of Excise, Murshidabad are confirmed.

iii) The Commissioner has stated that, "It is a common knowledge that a person of ordinary prudence who is benefiting by running a business will not retire from the same without protecting his interest in the said business. The argument that appellant's husband retired from the business on his own is therefore not acceptable." The observations/conclusions of the Ld. Commissioner are not based on any facts, but based on presumption as to what a person of ordinary prudence would do. In the absence of findings based on any facts and without countering the findings of the District Magistrate and Collector of Excise, Murshidabad, I do not agree with the views of the Ld. Commissioner.

iv) The Ld. Commissioner has also recorded his observations on the alleged deed that, "Besides, the anomalies in the deed and its authenticity as stated by the private respondent have already been challenged at the proper forum and actions according to law shall take effect only after its disposal."

The observations of the Ld. Commissioner regarding pendency of the matter before proper forum and actions according to law do not have any relevance in so far as the decision of the Ld. Commissioner is concerned.

v) The Commissioner, in his order, has finally recorded that, "Accordingly, I set aside the order passed by the District Magistrate and Collector, Murshidabad on 30.10.2007 in this connection. It is also ordered that the license shall be settled jointly with the present holder of the license viz., Shri Amar Nath Saha along with the present appellant Smt. Sikha Saha, immediately."

The decision of the Ld. Commissioner, in my opinion, firstly accepts the present holder of the license, Shri Amar Nath Aaha, as sole-licensee, and then adds Smt. Sikha Saha as joint licensee. In my opinion, this cannot hold since with acceptance of retirement of Shri Nemaio Chandra Saha leaves Shri Amar Nath Saha as the sole-licensee, the retirement of Shri Nemai Chandra Saha stands validated. There cannot be any concept of conditional retirement, particularly based on presumption. It cannot merit any consideration in the absence of concerned facts.

vi) In so far as monetary transactions are concerned, these are civil disputes in nature, which cannot be adjudicated in this forum.

vii) In so far as veracity of any of the partnership deeds, i.e. that of the appellant and the respondents is concerned, it is not necessary to adjudicate on the same at this stage. In my opinion, it is also not possible without detailed investigation.

21. I, therefore, confirm the order dated October 30, 2007 of the District Magistrate and Collector of Excise, murshidabad and set aside the order dated September 9, 2008 of the Ld. Commissioner of Excise. Hence the appeal of Shri Amar Nath Saha succeeds."

Neither the petitioner nor the respondent no. 6 have denied with

regard to the application filed by the respondent no. 6 for transfer of the

license in the name of the respondent no. 5. Only the contention raised by

the petitioner is that the respondent no. 5 had misused the signature of the

petitioner and her daughters by using the same as No-Objection for transfer

of the license in the name of the respondent no. 5. The license was recorded

in the joint name of respondent no. 5 and respondent no. 6, the respondent

no. 6 had made an application for transfer of licenses in the name of the

respondent no. 5. On receipt of the applications submitted by the

respondent no. 6, an enquiry was conducted. Transfer of license is provided

under Rule 207 of the Bengal Excise Rule consolidated rules made under

Section 85 which reads as follows:-

"207. No transfer or sub-lease (whether entire or partial) of a license shall be made except with the previous permission of the collector and the approval of the Commissioner. The Collector shall not allow such transfer, or sub-lease, unless good and sufficient reason be shown to his satisfaction, and unless the transferee or sub-lease is, in his opinion, fit and qualified to hold such license."

After submission of the application by the respondent no. 6,

respondent no. 6 had appeared before the District Magistrate in a personal

hearing and accordingly, the competent authority had passed an order for

transfer of license in the name of the respondent no. 5. Now after about 4

years, the petitioner has filed the complaint stating that there was a

Partnership Deed in which the share of the respondent no. 6 has been given

to the petitioner but the name of the petitioner has not been included. The

Partnership Deed was not proved before the authorities and the Partnership

Deed on the basis of which the petitioner is claiming her share over the

license is under challenge before the Civil Court and as such this Court is of

the view that the Principal Secretary as well as the District Magistrate have

rightly rejected the complaint made by the petitioner.

The Counsel for the petitioner relied upon Section 82, 83(b), Section

54(a) and 42(1)(d) of the Bengal Excise Act, 1909 and submitted that the

authorities failed to report the matter to the Magistrate for taking cognizance

for the offence committed by the respondent no. 6 for committing fraud

upon the authorities by producing false document to get his name entered

into the license by depriving the right of the petitioner.

Section 82 reads as follows:-

"[82. Magistrates having jurisdiction to try offences.- No Magistrate other than-

(a) the Chief Metropolitan Magistrate, or

(b) the Chief Judicial Magistrate, or

(c) an Additional Chief Metropolitan Magistrate, or

(d) an Additional Chief Judicial Magistrate, or

(e) a Metropolitan Magistrate, or

(f) a Judicial Magistrate, or

(g) a Judicial Magistrate of the second class,

shall try any offence punishable under this Act.]"

Section 83 reads as follows:-

"83. Initiation of certain prosecutions.- No Magistrate shall take cognizance of an offence referred to-

(a) in section 46, [section 46A] section 48, section 52 or section 53, except on his own knowledge or suspicion, or on the complaint or report of an Excise Officer or an officer empowered in this behalf by the [State Government]; or

(b) in section 54 [section 54A) section 58, clause (d) or clause (e), or section 59, except on the complaint or report of the Collector or an Excise Officer authorized by the Collector in this behalf."

Section 54(a) reads as follows:-

"[54A. Penalty for contravention of sections 85 and 86 and conditions of license, etc.- if any holder of a license, permit or pass granted under this Act, or any person in his employ acting on his behalf,-

(a) In any case not proved for in sections 46 and 46A wilfully contravenes any rule made under section 85 or section 86, or

(b) Wilfully does any act, in breach of any of the conditions of the license, permit or pass, for which a penalty is not prescribed elsewhere in this Act,

shall be liable to fine which may extend to [five thousand rupees].]"

Section 42(1)(d) reads as follows:-

"42. Power to cancel or suspend license, permit or pass.- (1) Subject to such restrictions as the [State Government] may prescribe, [by rule made under Section 85, sub-section (2), clause (i)] the authority who granted any license, permit or pass under this Act may cancel or suspend it-

(a) if it is transferred or sublet by the holder thereof without the permission of the said authority; or

(b) if any duty [tax] or fee payable by the holder thereof be not duly paid; or

(c) in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or

(d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence, or of any offence punishable [under the Dangerous Drugs Act, 1930 (2 of 1930)] [or under the Trade and Merchandise Marks Act, 1958 (43 of 1958) or under any of sections 479 to 489 of the Indian Penal Code (XLV of 1860), or under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955)]; or

(e) if the holder thereof is subjected to any penalty under Chapter XIV of the Customs Act, 1962 (52 of 1962), or;]

(f) where a license, permit or pass has been granted on the application of the holder of an exclusive privilege granted under section 22, on the requisition in writing of such holder; or

(g) if the conditions of the license, permit or pass provide such cancellation or suspension at will,"

Section 83 relates to initiation of certain prosecution. Section 83(B)

relates to the complaint or report authorized by the Collector. The allegation

of the petitioner in the instant case that the respondent no. 5 has committed

fraud and has obtained a license in his name, the allegation made by the

petitioner with regard to the fraud committed by the respondent no. 5 is not

proved. The petitioner failed to prove what documents have been used by

the respondent no. 5 for committing fraud upon the authorities. Two

contentions have been raised by the petitioner in the complaint i.e. there

was a partnership deed and the respondent no. 5 has suppressed the said

partnership deed and secondly, the respondent no. 5 has used the signature

of the petitioner and her daughters as No-Objection. As regard the Deed of

Partnership i.e. not proved before the authorities and on the other hand, the

said Partnership Deed is under challenge before the court of law as regard

the signature of the petitioner and her daughter used by the respondent no.

5 as No-Objection does not arise, as at the relevant point of time, the license

was not in the name of the petitioner or in the name of her daughter. The

license was in the joint name of the respondent no. 5 and the respondent

no. 6. On the request of the respondent no. 6, the license was transferred in

the name of the respondent no. 5 and as such the respondent authorities

have no occasion to initiation of any criminal prosecution against the

petitioner and as such either Section 83 or Section 82 or Section 54(a)

42(1)(d) is applicable.

The Counsel for the petitioner relied upon the judgment reported in

(2016) 11 SCC 31 (Lalaram & Ors. -Vs- Joipur Development Authorities).

The judgment relied by the petitioner is not applicable in the instant case as

the allegation made by the petitioner against the respondent no. 5 is not

proved. Unless or until the allegation with regard to the fraud committed by

the respondent no. 5 is proved, the authority cannot make any complaint

against the respondent no. 5. In the instant case, though the allegation of

fraud has been made against the respondent no. 5 but the same has not

been proved. There is no allegation that respondent no. 5 has violated any

terms and conditions of the license and as such the respondent authorities

have no occasion to make any complaint for taking cognizance against the

respondent no. 5. The respondent no. 5 had relied upon the judgment

reported in (2005) 3 CHN 364 and submitted that there is no provision in

the Act with regard to deemed clauses. The Counsel for the petitioner relied

upon paragraph 25 of the said judgment and submitted that the petitioner

has not filed any document with regard to the partnership deed entered

between the petitioner and the respondent no. 5 and only on the oral

submission it cannot be said that there has been a deemed partnership.

Clause 25 of the judgment reads as follows:-

"25. We, therefore, find that all the decisions cited by Mr. Banerjee dealt with provisions of different statutes where there was no similar provision of a "deemed clause" and as such, the Courts were of the view that mere introduction of a partner did not amount to transfer of license. We have already held that the said principle cannot be applicable to a case under a statute where the legislature has introduced a "deemed clause" of transfer though there is not actual transfer of license."

The Judgment relied by the respondent no. 5 is squarely applicable in

the instant case.

In view of the above, this Court does not find any infirmity in the order

passed by the Principal Secretary, Excise Department dt. 20.05.2009 hence

the impugned order does not require any interference.

WPA No. 13597 of 2009 is thus dismissed.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)