Shri Dipankar Majumder vs The State Of Tripura
2021 Latest Caselaw 450 Tri

                        HIGH COURT OF TRIPURA
                            AGARTALA


                        W.P(C) No. 529 of 2020

   Shri Dipankar Majumder,
   son of Lt. Tribeniswar Majumder
   resident of Dakbanglow Road,
   P.S & P.O-R.K Pur, Udaipur
   District-Gomati Tripura.

                                                ---- Petitioner(s)
                                Versus

1. The State of Tripura
   Represented by the Finance Secretary,
   Finance Department, Govt. of Tripura
   New Capital Complex, Agartala, Tripura
   Pin-799010.

2. The Commissioner of Excise,
   Government of Tripura, Gurkhabasti,
   P.O and PS-New Capital Complex,
   District-West Tripura.

3. The District Magistrate and Collector,
   Government of Tripura, Gomati District,
   PO and PS-R.K Pur, District-Gomati Tripura

4. The Collector of Excise,
   Gomati Tripura, Government of Tripura
   P.O & P.S-R.K Pur, District-Gomati Tripura

5. Sri Partha Singha,
   Son of Sri Pramod Ranjan Singha
   Resident of Dhajanagar, P.O Gokulpur,
   P.S-R.K Pur, Udaipur, District-Gomati Tripura
                                                ---- Respondent(s)

For Petitioner(s) : Mr. Raju Datta, Adv.

For Respondent(s) : Mr. D. Bhattacharjee, G.A.

Mr. T.K. Deb, Adv.

Date of hearing                  :      17.12.2020.

Date of pronouncement            :      01.04.2021.

Whether fit for reporting        :
                                          Yes       No
                                                    

             HON'BLE MR. JUSTICE S. TALAPATRA

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Judgment & Order (Per S.G. Chattopadhyay, J.)

This writ petition has been filed challenging the

order dated 08.07.2020 [Annexure-18] of the Collector of Excise,

Gomati District granting licence in favour of respondent No.5

permitting him to open a shop at Bagma market in Udaipur for

retail sale of foreign liquor.

[2] The factual background is as under:

The District Collector of Excise, Gomati District,

Udaipur (respondent No.4) issued notice inviting e-tender (DNIT)

dated 17.01.2020 vide Annexure-1 of the writ petition for

settlement of retail vend of foreign liquor at various locations in

Gomati District including Bagma market area. By the said notice,

the intending tenderers were asked to submit their e-tender to

the Collector of Excise at Udaipur by uploading the same within

21 days from the date of publication of the e-tender and it was

also mentioned in the said tender notice that there would be 2

(two) parts of tender, viz. (i) technical part, & (ii) financial part.

The notice also contained the principles to be observed in

granting licence for such liquor shop in terms of Rule 26 of the

Tripura Excise Rules, 1990.

[3] The petitioner as well as respondent No.5 along

with others participated in the said e-tender process by uploading

their e-tender on the official web portal of respondent No.2.

Receipt of petitioner's bid was acknowledged by the respondent

vide bid acknowledgment dated 06.02.2020 which is annexure-2

to the writ petition. Along with his bid, petitioner also deposited a

sum of Rs.3,41,177/- with the said respondent as earnest money

vide payment details dated 06.02.2020 at Annexure-3. Petitioner

also submitted a statement of his immovable property vide

Annexure-4, the details of his bank accounts containing the cash

balance maintained by him in those accounts vide Annexure-5,

copy of his Permanent Account No. (PAN) vide Annexure-6, copy

of his Aadhar card vide Annexure-7 and his letter dated

06.02.2020 whereby he submitted his tender vide Annexure-8.

[4] According to the petitioner, respondent No.5

along with his bid submitted a declaration from one Sri Sudhir

Chandra Saha of Bagma, Udaipur vide Annexure-9 whereby said

Sri Sudhir Chandra Saha declared that he had entered into a rent

agreement with respondent No.5 to run a foreign liquor shop on

his land at Bagma and he also declared that he had no objection

for setting up such business by respondent No.5 on his landed

property at Bagma. It has been averted by the petitioner that in

the said declaration said Sri Sudhir Chandra Saha never stated

whether he had any building on such land for opening a retail

outlet of foreign liquor.

[5] After the bids were submitted, respondent No.4

conducted enquiry before granting licence vide order dated

30.04.2020 (Annexure-10). The said Collector of Excise

(respondent No.4) constituted a committee consisting of 3

(three) members including District Panchayat Officer, Pradhan of

South Bagma Gram Panchayat and Senior Inspector of Excise to

conduct fresh enquiry at the proposed site at Bagma market and

submit report within 06.05.2020. The said committee submitted

its report dated 05.05.2020 vide Annexure-11 in which it was

mentioned that the shop proposed by respondent No.5 was found

to have no wall on the upper portion and no roof, no door and no

windows and it was a semi pucca structure and an incomplete

building. The said report also mentioned that local residents

raised objection to the members of the committee on the ground

that the liquor shop would spoil the atmosphere of the area and

the road in front of the proposed site was used by the school

students for going to their nearby school and a liquor shop on

their way to school, according to the members of the committee

would spoil their mind. During enquiry by the said committee, a

nursery school named Shishu Niketan Nursery School including a

temple was found located within 100 meters of the proposed

liquor shop. Moreover, the respondent who initially submitted a

no objection from one Sri Sudhir Chandra Saha for using his land

for his proposed liquor shop at Bagma, submitted a letter dated

13.07.2020 (Annexure-13) to the Panchayat Pradhan of South

Bagma Gram Panchayat requesting the said Gram Pradhan to

permit him to construct a building on the land of Raju Saha for 1

(one) month for setting up a foreign liquor shop and the said

respondent assured the Panchayat Pradhan that he would shift

elsewhere after 1 (one) month.

[6] 78 Nos. of local residents also submitted a

written representation (Annexure-15) to the District Collector

(respondent No.4) to abstain from granting any licence for

opening a foreign liquor shop at the site proposed by respondent

No.5 on the ground that it was in close proximity to a school, an

anganwadi centre and a temple. Without considering such

representation received from the local residents and without

taking into consideration the fact that the site proposed by

respondent No.5 was within 100 meters from a school and

temple and also without considering the fact that respondent

No.5 had no building in terms of the standard laid down by the

Tripura Excise Act & Rules made thereunder. The District

Collector had issued the impugned licence in favour of

respondent No.5 permitting him to open a shop for retail sale of

foreign liquor at Bagma market which according to the petitioner

is grossly illegal and liable to be quashed. Therefore, the

petitioner by filing this writ petition prayed for quashing the

impugned order of the District Collector and directing him to

grant licence in favour of the petitioner to open a retail outlet at

Bagma market for sale of foreign liquor.

[7] The respondents contested the case by filing

counter affidavits. The State respondents in their counter

affidavit filed on 07.10.2020 stated that respondent No.4 invited

e-tender for settlement of all existing foreign liquor and country

liquor shops in Gomati District for the financial year 2020-21,

2021-22 and 2022-23 in terms of the guidelines issued by the

State government vide notification dated 23.08.2019 and Clause-

13 of the said notice inviting tender empowered the Collector of

Excise to reserve the right to accept or cancel any bid including

the highest bid without assigning any reason. For the foreign

liquor at Bagma market 3 (three) bids were received. In their

financial bid, respondent No.5 quoted Rs.93,11,111/- whereas

the petitioner quoted bid of Rs.90,00,777/- and one Smt. Shiuli

Saha quoted a bid amount of Rs.88,99,998/-. Resultantly,

respondent No.5, Partha Singha Roy was taken to be the highest

and successful bidder. After physical verification and completion

of the tender process in all respect, the Collector of Excise

(respondent No.4) sent the list of successful bidders with his

recommendation for granting licence in favour of the highest

bidder to the Commissioner of Excise (respondent No.2) for his

approval. The government approved the recommendation for

granting licence to respondent No.5 who was the highest bidder.

Accordingly, the impugned order granting licence to him to open

foreign liquor shop at Bagma market was issued.

[8] It was asserted by the respondents that Sishu

Niketan Nursery School include a small temple inside the school

which was 100 meters away from the proposed liquor shop of

respondent No.5 but the said school had no recognition from the

State government. The averment made by the respondent in

paragraph 16 of their counter affidavit is as under:

"That with reference to the statements made in paragraph-15 of the writ petition, I beg to submit that the statements are not true. The State Respondents have rightly issued permission in opening of Retail Vend F.L. Shop at the proposed site at Bagma market area."

[9] The respondents stated that the provisions of

Tripura Excise Act as well as the rules made thereunder were

followed in granting the licence in favour of respondent No.5 and

therefore there was no illegality in the impugned order whereby

the licence was granted in favour of the respondent.

[10] Respondent No.5 submitted separate counter

affidavit on 14.12.2020 stating that along with his bid he

submitted a rent agreement vide Annexure-1 executed by him

with Sri Sudhir Chandra Saha who agreed to let his house on

monthly rent of Rs.5,000/- to the respondent at Bagma market

for setting up his liquor shop and the document was duly

authenticated by the Notary at Agartala. According to the

respondent, there was no breach of any provision of the Tripura

Excise Act or the Rules thereunder in granting the licence to him

for opening the shop at Bagma Bazar for retail sale of foreign

liquor. With regard to the location of the Sishu Niketan Nursery

School, the respondent stated that the nursery school was

situated near the liquor shop proposed by him but the said

nursery school had no registration or affiliation from the

government and therefore there was no breach of Tripura Excise

Rules in granting the licence to him. The averment made by him

in this regard in his counter affidavit is as under:

"11. That with reference to the statements made in paragraph-7 of the writ petition, I beg to submit that it would reveal from Annexure-11 of the writ petition that Section 26 of Tripura Excise (Ninth Amendment Rules), 2014 states "(1) No retail vend of foreign liquor and country liquor shop shall be located within 100 (one hundred) meters from the following, namely:

a) Recognized Educational Institutions;

b) Religious places of worship, bathing ghat;

c) Hospitals;

d) Factories;

e) Office (s) of the recognized political parties;

It is admitted fact that the liquor shop is near a nursery school, Kali Mandir and in populated area. During inspection the Coordinator of the said Nursery Shri Nitai Dutta was present during verification who stated that the school has no Government registration or affiliation as it is only nursery school and the temple has no Government record and recognition.

In view of what has been stated in Annexure-11, it is very much clear that there is nothing wrong in according permission for opening of a Retail Vend Foreign Liquor Shop. The views of the Committee as would be evident in Annexure-11 that the any objection was raised from any corner is not at all correct. Because the Respondent No.5 has not faced any such objection from the local. Further in all such other cases, "Licences are proposed to be offered for retail vend of foreign liquor and country liquor shops". So, the liquor shop is for retail sale not for consumption on the premise. It is further stated that in the said report it is mentioned that my shop is facing paddy land near brick soling road and a bit isolated from dwelling house. From the said report it is clear that the said Retail Vend F.L Shop is not facing with the main road and located at an isolated place."

From the contentions, it is clear that the petitioner has not violated any terms and conditions of the licence."

The respondent, therefore, urged for dismissal of

the writ petition.

[11] Counsel appearing for the petitioner argued that the

proposed liquor shop of the private respondent is located within 100

meters from a school and a temple inside the school and as such

the acceptance of his tender is a clear breach of Rule 26 of the

Tripura Excise Rules, 1990 and therefore his tender is liable to be

cancelled. Learned counsel has further argued that the respondents

have admitted the fact that there is a school within 100 meters of

the proposed liquor shop. According to learned counsel the stand of

the respondents that the school is not recognized and therefore Rule

26 does not apply in the case is not acceptable. Counsel, therefore,

urges the court for allowing the petition.

[12] Stand of the respondents on the other hand is that

apart from submitting the highest bid, private respondent No. 5 has

also fulfilled all other criteria of the tender. Therefore, his bid has

been accepted. With regard to the plea of the petitioner that

proposed liquor shop of the respondent is within 100 meters of

educational institution and temple, it is contended by the official

respondents that the school is 100 meter away from the proposed

liquor shop and moreover it is not a recognized institution. The

respondents have admitted that there is a temple inside the school

but this is not religious place of public worship and therefore no

breach of Rule 26 of the Tripura Excise Rules, 1990 was committed

by the State respondents by accepting the bid of private respondent

No. 6. Counsel for the respondents, therefore, urged for dismissal of

the petition.

[13] We have considered the submissions of learned

counsel representing the parties as well as the materials placed

before this court in support of such contentions. It is true that in

response to the tender notice dated 17.01.2020 (Annexure-1) the

petitioner as well as the private respondent No. 5 and other

respondents submitted their bids for Bagma market FL shop in

Bagma market area. Private respondent No. 5 being the highest

bidder and being eligible in terms of other criteria were given licence

for retail vending of foreign liquor vide licence dated 08.07.2020

(Annexure-18). The tender notice (annexure-1) mentioned the

eligibility criteria for the prospective tenderers and in the said notice

provisions of Rule 26 of the Tripura Excise Rules 1990 were also

quoted including the provision that no retail vend of foreign liquor

and country liquor shall be located within 100 meters from a

recognized educational institution or religious places of public

worship etc. At this stage it would be apposite to refer to Section 26

of the Tripura Excise Rules, 1990. With regard to imposition of

restrictions for setting up of liquor shop within 100 meters from

certain places, Rule 26 provides as follows:

Amendment of Rule 26:

"(1). No retail vend of Foreign Liquor and Country Liquor shop shall be located within 100 (one hundred) meters from the following namely:

(a) Recognized Educational Institutions;

(b) Religious places of public worship, bathing ghat:

(c) Hospitals;

(d) Factories;

(e) Office(s) of the recognized political parties;

Provided that while in case of settlement of shop(s) through tender or auction method, no site can be proposed by the tenderer or the bidder whose location exceeds a distance of one hundred meters from the existing shop(s).

Provided further that the aforesaid conditions shall have the prospective effect.

Provided also that if any Recognized Educational Institutions, Religious places of public worship, Bathing ghat, Hospitals, Factories and Offices of recognized Political Parties comes into existence subsequent to the establishment of retail vend of Foreign Liquor or Country Liquor, the aforesaid distance restrictions shall not apply.

Explanation I- For the purpose of clause (a) above, recognized educational institution would mean an educational institution recognized by the State Government or Central Government, or any College or institution affiliated to any University affiliated by UGC.

Explanation II- For the purpose of clause (b) above, a religious place would imply a religious place having a pucca/semi pucca structure with a covered area having more than four hundred square feet and has been in existence for a period of at least twenty years. [For the purpose of this rules, religious places of public worship means a place of public worship that has been recorded and recognized by the State Government].

Explanation III-The measurement of distance shall be the shortest traversable distance, from the midpoint of the actual main entrance/door of the premises proposed for licence to midpoint of the actual main door/entrance of the building of the places mentioned in clause (a), (b), (c), (d) and (e) above.

Explanation IV- For the purpose of clause (e) above, recognized Political Parties would imply a State/National political party as recognized by the Election Commission of India.

(2) The licensee shall not carry on any business connected with his licence, or store any liquor to be sold or otherwise dealt with under his licence, except in the premises specified in his licence, hereinafter called the „licensed premises‟. The Excise Commissioner,

may however, grant in an exceptional case, permission to store liquor at a place other than the licenced premises. This permission shall be granted on payment of extra fees as prescribed and only in cases where it is impracticable to store the required stock in the licensed premises. Before the grant of permission, the Excise Commissioner shall satisfy himself that the proposed place is adequately guarded and that there is no means of access to it by the public.

(3) No licensed premised for the sale and storage of liquor shall be used for any other business. Retail licenses for consumption off the premises shall be permitted at sites or premises, located in a pucca/semi pucca building, the land use of which is commercially approved and shall conform to the orders and instructions issued by the Excise Commissioner from time to time. The minimum floor area of the liquor shop should be hundred square feet.

(4) The licensed premises of all kinds of licenses shall have adequate storage facility having fully equipped fire safety measures and shall be duly insured against fire and other natural hazard. The licensee shall keep the premises thoroughly clean and dry and shall comply with the orders issued by the Collector of Excise for the removal of defects in the building.

(5) No advertising hoarding, banner, posters should be used around the premises in such a manner e.g. occupying whole side of a public square as to obtrude itself on the attention of the public.

(6) The licence premises should not be obstructed by any artificial structure or any other means that would hinder easy supervision of persons entering or leaving the shop."

[14] From a plain reading of the provision it can be

conceived that the educational institution in terms of Clause (a) of

sub Rule (1) and explanation-I under the third proviso to sub Rule

(1) should be a recognized educational institution and religious

place in terms of Clause (b) of sub Rule (1) and explanation-II

under the third proviso to sub Rule (1) should be a religious place of

public worship within 100 meters of which a liquor shop cannot be

set up.

[15] In the given context, there is no denial of the fact

that there is a nursery school at 100 meters away from the

proposed liquor shop of the private respondent and there is a small

temple inside the school. The respondents have placed on record

that the school is not a recognized educational institution within the

meaning of Clause (a) of sub rule (1) of Rule 26 of the Tripura

Excise Rules, 1990 and the temple made inside the school is not a

religious place of public worship as per clause (b) of sub rule (1) of

Rule 26 of the said Rules. Therefore, the provisions of Rule 26 of the

Tripura Excise Rules, 1990 does not apply to this case. Admittedly,

private respondent No.5 submitted the bid of the highest value and

he also submitted required lease agreement with one Sri Sudhir

Chandra Saha of Bagma whereby said Sri Sudhir Chandra Saha

agreed to rent his shop premises to the private respondent for sale

of liquor at a monthly rent of Rs.5,000/-. A committee consisting of

the Superintendent of Excise, Senior Inspector of Excise and two

Sub Inspector of Excise submitted field verification report dated

27.02.2020 of the proposed site of the private respondent in which

they noted that the alleged educational institution was beyond 100

meters from the proposed site and therefore, Rule 26 with regard to

prohibited site does not apply to this case. Thereafter, vide order

dated 02.07.2020, the Collector of Excise of Gomati District issued

impugned licence for retail vending of foreign liquor in favour of

private respondent No.5.

[16] In view of what is stated above, we do not find any

merit in the contention of the petitioner. As a result the writ petition

stands dismissed and the case is disposed of.

Interim order(s), if any, stands vacated.

            JUDGE                                    JUDGE

Rudradeep