The District Magistrate & Collector, Govt. of West Bengal & Ors. Vs. Smt. Rama Mukherjee & Anr.
EmailAppeal: Civil Appeal No. 5792 of 1998
Petitioner: The District Magistrate & Collector, Govt. of West Bengal & Ors.
Respondent: Smt. Rama Mukherjee & Anr.
Apeal: Civil Appeal No. 5792 of 1998
Judges: Dr. A.S. ANAND, CJI, R.C. LAHOTI & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Dec 13, 2000
Head Note:
CONSTITUTION
Articles 226, 14, 16 – Application for grant of temporary/regular licence – Matter pending since three decades – In between, pursu-ant to orders by High Court, application considered and rejected – Writ petitions and writ appeals pending – Licence required for particular area – Meanwhile, fresh notice dated 13.8.93 having list of proposed sites for vending IMFL – Said list also includ-ing the particular area (Habra Station) for which litigation going on. Held that authorities shall take decision in 4 weeks on the application of respondents. Sites will be selected as per Rules and also selection of licencees at the same time Other directions given. (Para 7)
JUDGEMENT:
ORDER
1. This appeal by special leave is directed against the order of the Division Bench of the Calcutta High Court dated 11th August, 1998.
2. In the view that we propose to take, we do not consider it necessary to advert to the detailed facts of the case but shall refer only to certain relevant facts which are as follows :
Respondent no. 1 – Smt. Rama Mukherjee had been making applica-tions for grant of license to vend Foreign Liquor in the area of Habra Station, P.S. Habra. According to her, she had been making applications since 1972. Since the applications were not consid-ered by the authorities in accordance with the prescribed proce-dure and no decision was taken on her applications, she filed a writ petition, being C.O. 11612 (W) of 1993. The writ petition came to be heard by Mrs. Ruma Pal, J. (as her Lordship then was). Without considering the merits of the case of respondent no. 1 in any manner whatsoever, the learned Judge after taking note of the petition, to which no counter affidavit had been filed, directed the appellants (the State Authorities) to consider the case of respondent no. 1 for issuance of temporary and/or regular license for settlement of Foreign Liquor (F.L.) ‘off’ shop within the area of Habra Station. The appellants were directed to consider the case within a period of 8 weeks and in the event a temporary license was granted, the same was directed to be renewed from time to time till annual settlement was made. A further direction was issued to the appellants to dispose of the matter after giving her an opportunity of being heard and producing all such documents as she may like in support of her case. These direc-tions were issued by learned single Judge of the high court on 16th September, 1993. Pursuant to the order of the learned single Judge, respondent no. 1 as well as respondent no. 2 were granted hearing. An application was made in November, 1993 before the Additional District Magistrate. That application came to be decided by the Additional District Magistrate on 30th November, 1993. In that decision, interalia, the Additional District Magis-trate held that the site for which license was being requested for had not been proposed for settlement during that financial year. The order of the Additional District Magistrate was put in issue by respondent nos. 1 and 2 through writ petition C.O. No. 448(W) of 1994. That writ petition was decided on 6th April, 1994 in favour of the respondents. A perusal of the order of the learned single Judge – Sh. Paritosh Kumar Mukherjee, J. shows that it was based on a wrongful factual matrix inasmuch as it was assumed that the site at Municipal Super Market within the vicin-ity of Habra Police Station for which the license was sought for by the respondents was an ‘approved’ site. There was no basis for this factual statement. Based on this wrong factual matrix, direction was given by the learned single Judge for grant of a temporary license in respect of Indian Made Foregin Liquor (IMFL) ‘off’ shop at Municipal Market Habra in the District of North 24 Parganas in favour of the respondents, within a period of six weeks from the date of communication of the order. The authori-ties were further directed to renew the same from time to time until regular and/or annual settlement was made. The judgment in C.O. 448/94 dated 6.4.1994 was impugned before the Division Bench by the State. The appeal was admitted for consideration and in the meantime the Division Bench directed stay of the order of the learned single Judge to the extent it had directed grant of temporary or regular license in favour of respondents. The au-thorities were, however,directed to consider the grant of tempo-rary IMFL ‘off’ shop license to respondent no. 1 only within the area of Habra within a period of 15 days from the date of the order. The Additional District Magistrate thereafter, pursuant to the directions of the Division Bench, considered the prayer of respondent no. 1 and 1.12.1994 rejected the same. An appeal, filed by respondent no. 1 before the Excise Commissioner, met the same fate on 9th February, 1995. Thereafter, a revision was filed by the respondent against the order of the Excise Commissioner before the Principal Secretary, Excise Department. That revision was rejected on 4th April, 1996. The order of rejection of the revision was put in issue through another writ petition C.O. No. 17482 (W) of 1996. Sh. V.K. Gupta, J. disposed of the writ peti-tion by directing the authorities ‘to grant’ the license within four weeks. The learned single Judge based the order on a ‘con-cession’ made by learned Advocate appearing for the State. We, however, find that the concession made by the learned Advocate was only to the effect that the State would have ‘no objection in considering the petitioner’s request for grant of the aforesaid temporary license and to renew the same in her favour.’ By no stretch of imagination could this concession be construed as a concession on behalf of the State to ‘grant the license’. The appellants put in issue the order of the learned single Judge dated 30th April, 1997 in an appeal before the Division Bench. Before the Division Bench, a plea was raised that the concession made by the Counsel was unauthorised and that in fact concession had not been made in the terms in which the learned Judge had understood it. The Division Bench declined to entertain the plea and refusing to interfere with the order of the learned single Judge dated 30th April, 1997 gave liberty to the appellant to file a review petition. We are informed that the review petition was filed and the same is still pending. While the matters stood thus, the main appeal against the order of the learned single Judge dated 6th April, 1994 in writ petition C.O. No. 448(W) of 1994 came up for hearing. The Division Bench, in the operative part of the order, directed as follows :
“The appellants are directed to take steps in accordance with law for considering of granting regular settlement of annual licence in respect of I.M.F.L. ‘off’ shop at the declared site (area) at Habra within the vicinity of Habra P.S. in the District of North 24 Parganas, preferably within six months from the date of commu-nication of this order. Pending settlement of such annual and/or regular licence in I.M.F.L. ‘off’ shop site at Habra, the author-ities concerned are directed to grant temporary license in re-spect of I.M.F.L. ‘off’ shop at Habra in the District of North 24 Parganas in favour of the writ petition/respondent no. 1 within a period of 30 days from the date of communication of this order and renew the same from time to time, till annual and/or regular settlement is made. The writ petitioner will be entitled to assert her claim for issuance of annual and/or regular licence before licensing authorities at the time of grant of such settle-ment and the said authorities are directed to consider the said prayer of the writ petitioner on merits in accordance with law.”
4. This judgment of August 11, 1998 is the judgment impugned before us in this appeal.
5. We have heard learned Counsel for the parties and examined the record.
6. It appears that in the three writ petitions, and the two writ appeals which had been filed in the High Court, emphasis was laid more on reading of Rules divorced from facts than on the factual basis, to which the Rules could be applied. That has led to utter confusion being created. We find from a perusal of the record that various steps, which are required to be taken by the State for declaring a site as suitable for grant of license as well as for selection of the licensee and making annual settlements have not been taken. Learned Counsel for the respondent nos. 1 and 2 is right in contending that the respondents have been waiting all this time, about three decades, for their application to be considered in the manner provided by law but nothing has hap-pened. Partially they have to thank themselves for this because of the various writ petitions and other departmental proceedings which were taken in this case. Be that as it may, we find that the matter does not brook any further delay.
7. There is an application filed by the respondents for grant of temporary/regular licence for vending IMFL. Notice dated 13th August, 1993 has the list of proposed new sites for grant of licenses attached to it. Item No. 4 of that list is for the area “Habra station area or its vicinity on either side”. The site for which the respondents have sought a license, according to the learned Counsel, falls within Habra Station area and its vicini-ty. Learned Counsel for the appellant, however, submits that, that is a matter which requires to be looked into by the authori-ties. In the background referred to by us, we direct as follows :
1. The State, through Special Secretary, Excise, shall take a final decision on the application filed by respondent nos. 1 and 2 for grant of the license. Within a period off our weeks from the date of this order, the respondents as well as the appellant may file their written submissions in support of their respective cases before the Special Secretary.
2. Within six weeks thereafter the Special Secretary, Excise shall make an order with regard to the selection of site. In the event, the site is selected/approved for which the respondents have applied for a license, then appropriate steps, as required by the Rules for selecting the licencee, shall be taken within three months from the date of the decision of the selection of the site for grant of license for IMFL ‘off’ shop. Final order in that behalf shall be made within four weeks from the date of the final decision of the licencee.
3. In the event, the above time-schedule is not adhered to for any reason, Special Secretary, Excise would be entitled to con-sider the request of the respondents for grant of temporary licence in accordance with the Rules and if a temporary license is so granted, the same may be kept renewed from time to time till final decision is taken by the Special Secretary with regard to the grant of license.
8. The appeal is, accordingly disposed of with the above direc-tions. There will, however, be no order as to costs.
1. This appeal by special leave is directed against the order of the Division Bench of the Calcutta High Court dated 11th August, 1998.
2. In the view that we propose to take, we do not consider it necessary to advert to the detailed facts of the case but shall refer only to certain relevant facts which are as follows :
Respondent no. 1 – Smt. Rama Mukherjee had been making applica-tions for grant of license to vend Foreign Liquor in the area of Habra Station, P.S. Habra. According to her, she had been making applications since 1972. Since the applications were not consid-ered by the authorities in accordance with the prescribed proce-dure and no decision was taken on her applications, she filed a writ petition, being C.O. 11612 (W) of 1993. The writ petition came to be heard by Mrs. Ruma Pal, J. (as her Lordship then was). Without considering the merits of the case of respondent no. 1 in any manner whatsoever, the learned Judge after taking note of the petition, to which no counter affidavit had been filed, directed the appellants (the State Authorities) to consider the case of respondent no. 1 for issuance of temporary and/or regular license for settlement of Foreign Liquor (F.L.) ‘off’ shop within the area of Habra Station. The appellants were directed to consider the case within a period of 8 weeks and in the event a temporary license was granted, the same was directed to be renewed from time to time till annual settlement was made. A further direction was issued to the appellants to dispose of the matter after giving her an opportunity of being heard and producing all such documents as she may like in support of her case. These direc-tions were issued by learned single Judge of the high court on 16th September, 1993. Pursuant to the order of the learned single Judge, respondent no. 1 as well as respondent no. 2 were granted hearing. An application was made in November, 1993 before the Additional District Magistrate. That application came to be decided by the Additional District Magistrate on 30th November, 1993. In that decision, interalia, the Additional District Magis-trate held that the site for which license was being requested for had not been proposed for settlement during that financial year. The order of the Additional District Magistrate was put in issue by respondent nos. 1 and 2 through writ petition C.O. No. 448(W) of 1994. That writ petition was decided on 6th April, 1994 in favour of the respondents. A perusal of the order of the learned single Judge – Sh. Paritosh Kumar Mukherjee, J. shows that it was based on a wrongful factual matrix inasmuch as it was assumed that the site at Municipal Super Market within the vicin-ity of Habra Police Station for which the license was sought for by the respondents was an ‘approved’ site. There was no basis for this factual statement. Based on this wrong factual matrix, direction was given by the learned single Judge for grant of a temporary license in respect of Indian Made Foregin Liquor (IMFL) ‘off’ shop at Municipal Market Habra in the District of North 24 Parganas in favour of the respondents, within a period of six weeks from the date of communication of the order. The authori-ties were further directed to renew the same from time to time until regular and/or annual settlement was made. The judgment in C.O. 448/94 dated 6.4.1994 was impugned before the Division Bench by the State. The appeal was admitted for consideration and in the meantime the Division Bench directed stay of the order of the learned single Judge to the extent it had directed grant of temporary or regular license in favour of respondents. The au-thorities were, however,directed to consider the grant of tempo-rary IMFL ‘off’ shop license to respondent no. 1 only within the area of Habra within a period of 15 days from the date of the order. The Additional District Magistrate thereafter, pursuant to the directions of the Division Bench, considered the prayer of respondent no. 1 and 1.12.1994 rejected the same. An appeal, filed by respondent no. 1 before the Excise Commissioner, met the same fate on 9th February, 1995. Thereafter, a revision was filed by the respondent against the order of the Excise Commissioner before the Principal Secretary, Excise Department. That revision was rejected on 4th April, 1996. The order of rejection of the revision was put in issue through another writ petition C.O. No. 17482 (W) of 1996. Sh. V.K. Gupta, J. disposed of the writ peti-tion by directing the authorities ‘to grant’ the license within four weeks. The learned single Judge based the order on a ‘con-cession’ made by learned Advocate appearing for the State. We, however, find that the concession made by the learned Advocate was only to the effect that the State would have ‘no objection in considering the petitioner’s request for grant of the aforesaid temporary license and to renew the same in her favour.’ By no stretch of imagination could this concession be construed as a concession on behalf of the State to ‘grant the license’. The appellants put in issue the order of the learned single Judge dated 30th April, 1997 in an appeal before the Division Bench. Before the Division Bench, a plea was raised that the concession made by the Counsel was unauthorised and that in fact concession had not been made in the terms in which the learned Judge had understood it. The Division Bench declined to entertain the plea and refusing to interfere with the order of the learned single Judge dated 30th April, 1997 gave liberty to the appellant to file a review petition. We are informed that the review petition was filed and the same is still pending. While the matters stood thus, the main appeal against the order of the learned single Judge dated 6th April, 1994 in writ petition C.O. No. 448(W) of 1994 came up for hearing. The Division Bench, in the operative part of the order, directed as follows :
“The appellants are directed to take steps in accordance with law for considering of granting regular settlement of annual licence in respect of I.M.F.L. ‘off’ shop at the declared site (area) at Habra within the vicinity of Habra P.S. in the District of North 24 Parganas, preferably within six months from the date of commu-nication of this order. Pending settlement of such annual and/or regular licence in I.M.F.L. ‘off’ shop site at Habra, the author-ities concerned are directed to grant temporary license in re-spect of I.M.F.L. ‘off’ shop at Habra in the District of North 24 Parganas in favour of the writ petition/respondent no. 1 within a period of 30 days from the date of communication of this order and renew the same from time to time, till annual and/or regular settlement is made. The writ petitioner will be entitled to assert her claim for issuance of annual and/or regular licence before licensing authorities at the time of grant of such settle-ment and the said authorities are directed to consider the said prayer of the writ petitioner on merits in accordance with law.”
4. This judgment of August 11, 1998 is the judgment impugned before us in this appeal.
5. We have heard learned Counsel for the parties and examined the record.
6. It appears that in the three writ petitions, and the two writ appeals which had been filed in the High Court, emphasis was laid more on reading of Rules divorced from facts than on the factual basis, to which the Rules could be applied. That has led to utter confusion being created. We find from a perusal of the record that various steps, which are required to be taken by the State for declaring a site as suitable for grant of license as well as for selection of the licensee and making annual settlements have not been taken. Learned Counsel for the respondent nos. 1 and 2 is right in contending that the respondents have been waiting all this time, about three decades, for their application to be considered in the manner provided by law but nothing has hap-pened. Partially they have to thank themselves for this because of the various writ petitions and other departmental proceedings which were taken in this case. Be that as it may, we find that the matter does not brook any further delay.
7. There is an application filed by the respondents for grant of temporary/regular licence for vending IMFL. Notice dated 13th August, 1993 has the list of proposed new sites for grant of licenses attached to it. Item No. 4 of that list is for the area “Habra station area or its vicinity on either side”. The site for which the respondents have sought a license, according to the learned Counsel, falls within Habra Station area and its vicini-ty. Learned Counsel for the appellant, however, submits that, that is a matter which requires to be looked into by the authori-ties. In the background referred to by us, we direct as follows :
1. The State, through Special Secretary, Excise, shall take a final decision on the application filed by respondent nos. 1 and 2 for grant of the license. Within a period off our weeks from the date of this order, the respondents as well as the appellant may file their written submissions in support of their respective cases before the Special Secretary.
2. Within six weeks thereafter the Special Secretary, Excise shall make an order with regard to the selection of site. In the event, the site is selected/approved for which the respondents have applied for a license, then appropriate steps, as required by the Rules for selecting the licencee, shall be taken within three months from the date of the decision of the selection of the site for grant of license for IMFL ‘off’ shop. Final order in that behalf shall be made within four weeks from the date of the final decision of the licencee.
3. In the event, the above time-schedule is not adhered to for any reason, Special Secretary, Excise would be entitled to con-sider the request of the respondents for grant of temporary licence in accordance with the Rules and if a temporary license is so granted, the same may be kept renewed from time to time till final decision is taken by the Special Secretary with regard to the grant of license.
8. The appeal is, accordingly disposed of with the above direc-tions. There will, however, be no order as to costs.
