Calcutta High Court (Appellete Side)
Shyam Sundar Mal vs State Of West Bengal & Ors on 17 March, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 907 OF 2019
Shyam Sundar Mal
Vs.
State of West Bengal & Ors.
For the Petitioner : Mr. Jaydip Kar, learned Senior Advocate
Mr. Debdeep Sinha,
Mr. Prasenjit Saha .......advocates
For the Respondent
No. 9 & 10 : Mr. Anant Kumar Shaw,
Mr. Mainak Ganguly ........advocates
For the State : Mr. A. Ray, learned G.P.,
Mr. Debasish Ghosh,
Mr. Debraj Sahu ....... advocates
Reserved on : 01.03.2023
Judgment on : 17.03.2023
Hiranmay Bhattacharyya, J.:-
1. The petitioner has prayed for a writ of mandamus
commanding the respondents to forbear from giving effect to
and/or further effect to the application of the respondent nos.
9 and 10 for shifting of their licensed liquor shop from the
existing place at Mouza Tajpur to the proposed area at Mouza
Barankua in the district of Purba Medinipur.
2. Shorn of unnecessary details the facts relevant for the purpose
of deciding this writ petition in a nutshell are as follows- The
private respondents are running liquor shop in plot no. 99
within Mouza Tajpur in the district Purba Medinipur. They
applied for shifting of the existing liquor shop from Mouza
Tajpur to the proposed site at Mouza Barankua. Petitioner
raised an objection against the prayer for shifting of the
licensed liquor shop from Mouza Tajpur to Mouza Barankua
and prayed for cancellation of the prayer for shifting on the
ground that an educational institution namely Balisai Jelepara
Sishu Siksha Kendra and an Anganwadi Centre are situated
within 100 feet of the proposed site at Barankua.
3. The respondent no. 9 and 10 filed an affidavit-in-opposition
denying the material allegations contained in the writ petition.
It was specifically stated therein that Excise license was
granted in favour of the respondent nos. 9 and 10 in the year
2005 in respect of the site at Mouza Barankua and the private
respondent continued to run the business of liquor shop from
the site at Mouza Barankua till the year 2017. Subsequently
the Hon'ble Supreme Court passed an order imposing a
distance restriction in respect of liquor shops from a National
or State Highway. The private respondents had to shift the
liquor shop from the site at Mouza Barankua to the site at
Mouza Tajpur in compliance with the order of the Hon'ble
Supreme Court. Subsequently the Hon'ble Supreme Court
modified its earlier order and the State Government issued
notifications dated 06.03.2018 and 20.03.2018 allowing
opportunity for re-shifting of licensed liquor shop to the
original existing approved sites which became restriction free.
Pursuant thereto the respondent nos. 9 and 10 applied for re-
shifting of their licensed liquor shop from Mouza Tajpur to
Mouza Barankua and vide order dated 08.01.2009 passed by
the respondent no. 4, the private respondents were allowed to
re-shift their liquor shop to the original existing approved site
at Barankua and started functioning therefrom since
20.01.2019.
4. State also filed an affidavit in opposition stating that the
petitioners cannot object to the shifting of the liquor shop from
Tajpur to Barankua as the process of shifting as well as re-
shifting were made in terms of the orders of the Hon'ble
Supreme Court.
5. Mr. Kar learned Senior Counsel appearing in support of the
writ petition referred to various provisions of the West Bengal
Excise (Selection of New Sites and Grant of Licence for Retail
Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (for
short "the 2003 Rules") more particularly Rule 8 thereof
wherein a restriction has been imposed on grant of license for
retail sale of liquor or any other intoxicants at a new site
where the new site is situated in the vicinity of an educational
institution. He referred to the Explanation which explains the
word "vicinity" to mean a distance of one thousand feet to be
measured from a particular point of the building at the new
site to a particular point of the educational institution. He next
contended that the prayer for shifting of the liquor shop of the
respondent nos. 9 and 10 was considered by the State
Government in terms of the West Bengal Excise (Shifting of
Existing Site or Change of Premises of Excise License) Rules
2009 (for short "the 2009 Rules") and referred to Rule 4
thereof wherein the procedure for shifting has been laid down.
Mr. Kar contended that for the purpose of considering the
prayer for shifting of the existing license liquor shop from
Mouza Tajpur to the proposed site at Mouza Barankua, it was
incumbent upon the excise authorities to consider whether the
proposed site is objection free in terms of Rule 8 of the 2003
Rules. Thus, according to Mr. Kar the restriction on grant of
license as laid down under Rule 8 of the 2003 Rules could not
have been ignored by the excise authorities while considering
the prayer for shifting of the license liquor shop from the site
at Tajpur to the site at Barankua. Mr. Kar concluded by
submitting that since the excise authorities allowed the prayer
of the respondent nos. 9 and 10 for shifting of the license
liquor shop from the site at Mouza Tajpur to the site at Mouza
Barankua without taking note of the existence of educational
institutions within 100 feet of the proposed site at Barankua,
the excise authorities failed to perform their legal duties for
which the order allowing the prayer for shifting of the license
liquor shop from Mouza Tajpur to Mouza Barankua is liable to
be set aside and quashed.
6. Mr. Shaw, learned advocate representing the respondent nos.
9 and 10 seriously disputed the contentions made by Mr. Kar.
He raised an objection as to the maintainability of this writ
petition on two fold grounds. Firstly, that the order passed by
the authority allowing the prayer for shifting is an appealable
one in view of Section 8 of the Bengal Excise Act 1909 (for
short "the 1909 Act") read with the Consolidated Rules made
under Section 85 of the said Act. The other objection on the
maintainability of the writ petition is that several writ petitions
challenging the issue of shifting of the license liquor shop from
Mouza Tajpur to Mouza Barankua stood dismissed by orders
passed by co-ordinate benches of this Court and, therefore,
such issue of shifting to Barankua cannot be reopened. Mr.
Shaw further contended that the site at Barankua being an
existing site as per Rule 3(1)(iii) and also that the private
respondents had to shift their business from the existing site
at Barankua to Mouza Tajpur in order to comply with an order
passed by the Hon'ble Supreme Court of India coupled with
the fact that restriction imposed by the Hon'ble Supreme
Court being lifted subsequently, the procedure laid down
under Rule 8 of the 2003 Rules cannot be applied to the case
on hand. He further contended that the private respondents
carried on the business of licensed liquor shop at Barankua
from 2005 till 2017 and the educational institution has been
set up only in the year 2012 i.e., subsequent to the issuance of
licence for running liquor shop at Mouza Barankua, therefore,
the said restriction under Rule 8 cannot be applied to the case
on hand.
7. Mr. Ghosh, learned advocate representing the State contended
that the writ petitioner has no locus standi to raise any
objection against the shifting of the licensed liquor shop from
Mouza Tajpur to Mouza Barankua. He further contended that
since the private respondents prayed for re-shifting of their
licensed liquor shop to the original existing approved site at
Mouza Barankua in terms of the order passed by the Hon'ble
Supreme Court of India, Rule 8 of the 2003 Rules need not be
complied with in the instant case. He submitted that the
excise authorities allowed the prayer of the respondent nos. 9
and 10 for shifting of the license liquor shop from the site at
Mouza Tajpur to the site at Mouza Barankua after complying
with necessary formalities and, therefore, this Court should
not interfere with the decision of the excise authorities.
8. Heard the learned advocates for the parties and perused the
material placed.
9. Before entering into the merits of the writ petition, this Court
shall first decide the issue of maintainability of this writ
petition in view of objection raised by the private respondents
herein.
10. It is not in dispute that the order passed allowing shifting of
the license liquor shop from the site at Mouza Tajpur to the
site at Mouza Barankua is an appealable order under Section
8 of the 1909 Act before the forum specified under the
Consolidated Rules made under Section 85 of the said Act.
11. It is well settled that existence of an alternative remedy by
itself does not oust the jurisdiction of the High Court from
exercising its powers under Article 226 of the Constitution of
India. High Court has the discretion not to entertain a writ
petition where an effective alternative remedy is available to
the aggrieved person. The rule of exhaustion of alternative
remedy is, however, a rule of policy and not a rule of law and
the Courts have imposed a restriction upon itself not to
entertain a writ petition in case the party approaching the
Court has not exhausted the alternative remedy. Certain
exceptions to the aforesaid rules have now been judicially
accepted. Existence of alternative remedy may not be a bar in
exercising the powers under Article 226 where the writ petition
been filed for enforcement of fundamental rights, or there has
been a violation of the principles of natural justice, or the
order or proceedings are wholly without jurisdiction or the
vires of a legislation is challenged.
12. It is the case of the writ petitioners that his objection against
shifting of the liquor shop was not taken into consideration by
the concerned authorities which amounts to violation of the
principles of natural justice. The order of shifting, according to
the petitioner is without jurisdiction as it was passed de hors
the provisions laid down under the relevant Rules. That apart,
this Court finds that when this petition was moved on
06.02.2019, in the presence of the State respondents and the
private respondents, no objection as to the entertainability of
the writ petition was raised and the Co-ordinate Bench
permitted the parties to exchange their affidavits. The writ
petition has now come up for final hearing after exchange of
affidavits.
13. This Court, therefore, holds that this case falls within the
exceptions to the rule of exhaustion of alternative remedy and
the same being entertained by the Co-ordinate Bench 4 years
earlier, this Court is not inclined to relegate the petitioner to
the alternative remedy.
14. Mr. Shaw learned advocate for the private respondent,
however, failed to satisfy this Court that the issue with regard
to shifting of the licensed liquor shop from the site at Mouza
Tajpur to the site at Mouza Barankua was decided by this
Hon'ble Court on earlier occasion. Mere filing of the writ
petitions cannot be a bar in proceeding to decide with the
issues raised in this writ petition as such issues do not appear
to have been decided earlier. For all such reasons this Court is
inclined to consider the merits of the claims and counter
claims raised by the respective parties.
15. Before entering into the factual aspect, it would be relevant to
take note of the decisions rendered by the Hon'ble Supreme
Court which is the foundation of this writ petition.
16. The Hon'ble Supreme Court of India in the decision reported at
(2017) 2 SCC 281 in the case of State of Tamil Nadu
represented by its Secretary Home, Prohibition and Excise
Department and Ors. vs K. Balu and Anr. (hereinafter referred
to as K.Balu-1) passed certain directions and orders under
Article 142 of the Constitution of India. The paragraph 29.5 of
the said reports would be relevant for the case on hand and
the same is therefore extracted herein below.
"29.5. No shop for the sale of liquor shall be (i) visible
from a national or State highway; (ii) directly
accessible from a national or State highway: and (iii)
situated within a distance of 500m of the outer edge
of the national or State highway or of a service lane
along the highway."
17. The decision in the case of K. Balu-1 was subsequently
clarified by the Hon'ble Supreme Court in the case of State of
Tamil Nadu Represented By Secretary and Ors. vs. K. Balu and
Anr. reported at (2017) 6 SCC 715 (hereinafter referred to as
K.Balu-2). In paragraph 25 of the said reports, the Hon'ble
Supreme Court directed insertion of a paragraph after
direction (v) contained in paragraph 29.5 of the directions
contained in the judgment dated 15.12.2016 in K.Balu-1.
18. The said paragraph which was to be inserted after paragraph
29.5 is extracted hereinbelow-
"In the case of areas comprised in local bodies with a
population of 20,000 people or less, the distance of 500m
shall stand reduced to 220m."
19. Further clarification was made by the Hon'ble Supreme Court
in the case of State of Tamil Nadu Represented By Secretary
and Ors. vs. K. Balu and Anr. reported at (2018) 3 SCC 336
(hereinafter referred to as K.Balu-3). The Hon'ble Supreme
Court in the said decision expressed the view that the State
Governments would not be precluded from taking decisions
consistent with the object of the orders passed by the Hon'ble
Supreme Court. The Hon'ble Supreme Court in the said
decision held thus-
"9. ................................... We are inclined to allow the
State Governments to make this determination since it
is a question of fact as to whether an area covered by a
local self-governing body is proximate to a municipal
agglomeration or is sufficiently developed as to warrant
the application of the same principle. In deciding as to
whether the principle which has been set down in the
order dated 11.07.2017 should be extended to a local
self-governing body (or statutory development authority)
the State Governments would take recourse to all
relevant circumstances including the nature and extent
of development in the area and the object underlying
the direction prohibition the sale of liquor on national
and the State highways. The use of the expression
"municipal areas" in the order dated 11.07.2017 does
not prevent the State Governments from making that
determination and from taking appropriate decisions
consistent with the object of the orders passed by this
Court. We leave it open to individual licensees to submit
their representations to the competent authorities in the
State Governments if they are so advised upon which
appropriate decisions may be taken by the State
Governments."
20. After the decision of the Hon'ble Supreme Court in K.Balu-3,
the State Government issued a notification no. 271-Ft dated
06.03.2018 and another notification no. 24-Exc dated
20.03.2018.
21. In the notification dated 06.03.2018 it was stated that no
license for retail sale of liquor shop shall be granted at a site
if,-
(i) such site is situated within 20 metres from the outer edge of
any National or State Highway or of a service lane along such
highway;
(ii) such site is situated within 500 metres but above 220 metres
from the outer edge of any National or State Highway or of a
service lane along such highway except any areas comprised
in local bodies with a population of 20000 people or less.
22. A fourth proviso after the third proviso in the notification
dated 06.03.2018 was added vide notification dated
20.03.2018 wherein it was provided that the restrictions
contained in the notification dated 06.03.2018 shall not apply
to sites located within a radius of 5 kilometers from any block
headquarters or 3 kilometers from any gram panchayat office.
23. The aforesaid notifications are not under challenge in this
petition. It is not the case of the writ petitioners that the site at
Mouza Barankua falls within the restrictions imposed in the
notification dated 06.03.2018 as amended by notification
dated 20.03.2018. The only grievance of the petitioners is that
the site at Mouza Barankua cannot be said to be an objection
free site in terms of Rule 8 of the 2003 Rules in view of
existence of educational institutions alleged to be within 100
feet of the said proposed site. The writ petitioners are
aggrieved because of non consideration of their objection
against shifting of the licensed liquor shop from Mouza Tajpur
to Mouza Barankua which amounts to failure on the part of
the excise authorities to perform their duties vested upon
them by the 1909 Act and the Rules framed thereunder more
particularly Rule 8 of the 2003 Rules.
24. The only issue that falls for consideration in this writ petition
is whether the private respondents 9 and 10 should be allowed
to shift their licensed liquor shop from the site at Tajpur to site
at Barankua.
25. For the purpose of deciding the said issue it would be
profitable to extract Rule 3(1)(iii) of the 2003 Rules.
3.Definitions :- (1) In these Rules, unless there is anything
repugnant in the subject or context :-
(i) ......................................
(ii) .......................................
(iii) "existing site" means,-
a site for which a licence has been granted under section
30 or is required to be granted under section 31 on the
expiry of a licence granted under section 30, as the case
may be, for retail sale of liquor or any other intoxicant
specified in sub-rule (1) of rule (2);
a site for the retail vend of Tari, for which a license has
been granted under section 14, and where such license
has been settled for two consecutive licensing periods
during 2013-14 and 2014-15 in favour of a single license
holder. A site for the retail vend of Tari for which a license
has been granted, or is required to be granted, under
section 14, in accordance with the previsions of the West
Bengal Excise (Selection of Sites and Grant of License for
Retail Sale of Liquor and Certain Other Intoxicants) Rules,
2003, as subsequently amended, shall be considered to be
an existing site:
Explanation - An "existing site" shall continue to remain
an existing site even if retail sale of liquor or any other
intoxicants specified in rule 2 under a license is stopped or
closed from the existing site for whatever reasons for any
period, or even if the license is cancelled or suspended or
withdrawn or surrendered, or even when the license
lapses on the death of person(s) to whom with or without
others, it was granted;"
26. It is not in dispute that the license was granted in favour of
the respondent nos. 9 and 10 in the year 2005 for running the
liquor shop at the site at Barankua Mouza. The said
respondents continued their business at the said site at Mouza
Barankua till the year 2017. Thereafter, the retail sale of liquor
from the said site at Barankua under such license had to be
stopped pursuant to an order passed by the Hon'ble Supreme
Court of India in the case of K. Balu-1.
27. In view of the restrictions imposed in the order passed by the
Hon'ble Supreme Court in the aforesaid reported decision the
private respondents had to stop the retail sale of liquor from the
site at Barankua Mouza. Thereafter, the private respondents
were allowed to shift their license liquor shop to the newly
approved site at Mouza Tajpur.
28. However, the restriction imposed by the Hon'ble Supreme
Court in its initial order was subsequently lifted pursuant to
which the State Government issued a notification dated
06.03.2008 which was subsequently amended by a further
notification dated 20.03.2018. Therefore, even though the
private respondent nos. 9 and 10 had to shift their business
from the site at Mouza Barankua to the site at Mouza Tajpur,
the site at Mouza Barankua still continued to remain an
"existing site" in view of the definition of "existing site" under
Rule 3(1)(iii) of the 2003 rules as explained by the explanation
added thereto.
29. In the case on hand the private respondent nos. 9 and 10
applied before the excise authorities for shifting their license
liquor shop to the original existing site at Mouza Barankua from
the earlier approved site at Mouza Tajpur. Therefore, it is not
the case of shifting of an existing site for the retail sale of liquor
to the proposed new site.
30. Rule 4 of the 2009 Rules lays down the procedure for shifting
of an existing site for the retail sale of liquor to a proposed new
site. In cases of shifting of an existing site to a proposed new
site, Rule 4 of the 2009 Rules mandated that the proposed new
site shall have to be an objection free one in terms of Rule 8 of
the 2009 Rules. This Court finds that Rule 4 deals with shifting
from the existing site to the proposed site. Rule 8 of 2003 Rules
however lays down the restrictions on grant of license at certain
new sites. Upon a harmonious construction of the aforesaid
Rules, this Court is of the considered view that the restrictions
under Rule 8 of the 2003 Rules shall apply in case of shifting to
the proposed site which is other than the existing site. The case
on hand relates to shifting to the existing site. This Court is,
therefore, of the considered view that the provisions relating to
Rule 8 of the 2003 Rules more particularly the distance
restriction from an educational institution cannot be applied to
the case on hand. This Court accordingly holds that the
objection raised by the petitioner against shifting of the licensed
liquor shop to the original existing site at Mouza Barankua has
no legs to stand upon.
31. It is not the case of the petitioners that the site at Mouza
Barankua is hit by the restrictions imposed by the State vide
notification dated 06.03.2018 as amended by the subsequent
notification dated 20.03.2018. The retail sale of liquor under the
license issued by the excise authority had to be stopped from
the existing site at Mouza Barankua on account of the
restrictions imposed by the initial order of the Hon'ble Supreme
Court in the case of K. Balu-1. However, after issuance of the
notifications dated 06.03.2018 as amended by the notification
dated 20.03.2018 issued in terms of the subsequent order of
the Hon'ble Supreme Court in the case of K. Balu -3 there
cannot be any impediment for the running of the business of
the licensed liquor shop from the existing site at Mouza
Barankua.
32. Record reveals that pursuant to an application made by the
respondent nos. 9 and 10 for re-shifting of their licensed
premises to the original existing approved site, an enquiry was
conducted by the excise authorities and suitability of the same
was examined by taking into consideration the definition of the
existing site under Rule 3(iii) of the 2003 Rules as well as other
factors and thereafter the competent authority approved the
proposal for shifting of the licensed premises of the liquor shop
of the private respondents from its newly approved site at
Mouza Tajpur to the original existing site at Mouza Barankua.
After going through the materials on record this Court is of the
considered view that there was no failure on the part of the
excise authorities to perform their duties under the relevant
statute and the rules framed thereunder. The said order also
cannot be said to be without jurisdiction as sought to be urged
by Mr. Kar.
33. For all the reasons as aforesaid this Court holds that the writ
petition is devoid of any merit and the same is accordingly
dismissed.
34. There shall be, however, no order as to costs.
35. Urgent photostat certified copies, if applied for, be supplied to
the parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita)
