Sandip Kumar Neogi vs The State Of West Bengal And Others
2023 Latest Caselaw 6678 Cal

AD-26
Ct No.09
03.10.2023
TN
                               WPA No. 18151 of 2023

                                 Sandip Kumar Neogi
                                        Vs.
                          The State of West Bengal and others


             Mr. Sobham Majumder,
             Ms. Atulya Sinha
                                                        .... for the petitioner

             Mr. Anirban Ray,
             Mr. Tanoy Chakraborty,
             Mr. Saptak Sanyal
                                                              .... for the State



             1.   Learned counsel for the petitioner contends that

                  the Superintendent of Excise, Nadia has palpably

                  acted     without     jurisdiction     in   not   enquiring

                  whether the provisions of law for setting up liquor

                  shops      were      adhered     to   by    the   concerned

                  authority in issuing liquor licence to the private

                  respondent. It is submitted that despite the

specific complaint of the petitioner that there

were several educational institutions within the

close vicinity of the shop-in-question, the

Superintendent did not look into such aspect of

the matter at all and rejected the complaint on

technical aspects.

2. Learned counsel places reliance on Rule 8 of the

West Bengal Excise (Selection of New Sites and

Grant of License for Retail Sale of Liquor and

Certain other intoxicants) Rules, 2003 in support

of his contention.

3. Learned counsel for the respondent-authorities

places reliance on Rule 2 of the Consolidated

Rules made under Section 85 of the Bengal

Excise Act, 1909 and submits that an appeal is

provided before the Collector against any order

passed by any subordinate authority under the

said Act. In any event, learned counsel submits

that the petitioner having not challenged the

original grant of licence, is precluded from doing

so at this juncture, since there is no provision for

recall or reopening of the issue in the Act.

4. Learned counsel, in support of his proposition,

places reliance on a coordinate Bench judgment

of this court in Asutosh Ghosh vs. State of West

Bengal and others, reported at (2014) 2 CHN (Cal)

502.

5. Upon hearing learned counsel for the parties, it

transpires that the Superintendent of Excise,

Nadia undoubtedly proceeded on a technical

premise in observing that the petitioner's

objection was not a mass petition, since 15 out of

17 of the complainants did not reside in the area-

in-question. The Superintendent also took into

consideration that the private respondent, the

owner of the shop, was merely an accused in

certain criminal cases and not being convicted,

no action could be taken against the said shop.

6. A perusal of the ratio laid down in the judgment

cited by the respondent indicates that the learned

Single Judge observed that there was no material

to conclude that the grant of licence in favour of

the petitioner therein was illegal and, therefore,

void ab initio. It was further observed, inter alia,

that there is a presumption of law that official

acts are regularly performed and the burden is on

the person who claims to the contrary and seeks

a different conclusion to be reached to dislodge

such presumption by proper rebuttal.

7. It was further observed that one does not know

for certain whether over the last 6 (six) years in

the said case, when the licence was granted in

favour of the petitioner, any new facts had

cropped up.

8. The logic of the said judgment is applicable to the

present case as well, since the presumption in

law is that the acts done officially in granting the

licence to the private respondent is covered by

the presumption under Section 114 of the Indian

Evidence Act insofar as the correctness of such

official act is concerned. There is no specific

provision for recall of the said grant of licence.

9. That apart, the respondents are justified in

arguing that in view of the specific provision of

appeal being provided in the Consolidated Rules,

in particular, Rule 2 thereof, against any such

order such as the present impugned order, there

is no scope of interference at this juncture.

10. The Superintendent of Excise was also justified in

recording that there was no complaint lodged by

the schools or educational institutions concerned

and/or the parents or guardians of any student

of the same in respect of the operation of the off-

shop run by the private respondent in the area.

11. In such view of the matter, I do not find any

reason to justify interference with the order

impugned herein.

12. Accordingly, WPA No. 18151 of 2023 is

dismissed, without any order as to costs.

13. Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)