2013 (7) TMI 601 - HC - Indian Laws

Liquor license - Rule 62 under Section 85 of the Act as well as Rule 9 of the 2003 Rules - A foreign liquor ON shop licence - Objections raised by the local people, which included number of Councillors of the local municipality - It does not appear that the Collector had conducted any enquiry to find out the creditworthiness of the complaint(s) Held that - Among other things, enquiry must be directed to ascertain the veracity of the allegations levelled by the petitioner in this writ petition regarding vested interests of a group of people, who are standing in the way of a licence being granted in his favour. Copies of the report of enquiry shall be made available to the petitioner as well as the respondent no. 6 (who appears to be the primary objector to grant of licence in favour of the petitioner) as well as the Councillor of the ward in which the site proposed is located. No other Councillor of the local municipality shall be entitled to participate in the proceedings, unless he is a resident of that ward and objects to grant of licence as a resident and not on the authority of the office he holds. A Councillor, even though not resident of the concerned ward, may be allowed to participate in the proceedings if he satisfies the Collector of his right to object - Report of enquiry is furnished and an appropriate reasoned decision shall be taken on the petitioner s application keeping in mind the relevant factors including location of other nearby liquor shops and the likelihood of loss of State revenue, should the petitioner be unable to offer any alternative site.

Summary

Issues Involved:
1. Rejection of the petitioner's application for a foreign liquor 'ON' shop license.
2. Preliminary objection regarding the maintainability of the writ petition due to the availability of an alternative remedy.
3. Compliance with statutory requirements by the Collector in rejecting the license application.
4. Consideration of local objections and their validity.

Detailed Analysis:

1. Rejection of the Petitioner's Application for a Foreign Liquor 'ON' Shop License:
The petitioner applied for a foreign liquor 'ON' shop license, and after the necessary enquiry, the report was placed before the Additional District Magistrate and Collector of Excise, North 24 Parganas. Despite the site being lawful and the petitioner complying with the requirements, the Collector rejected the application due to local objections, including those from Councillors of the local municipality. The Collector cited a compulsion to apply directive principles under rule 62/85 of the Bengal Excise Act, 1909, leading to the rejection of the application. This rejection is the subject matter of the writ petition.

2. Preliminary Objection Regarding the Maintainability of the Writ Petition:
The respondents raised a preliminary objection, arguing that the Bengal Excise Act, 1909, provides an appellate remedy before the Excise Commissioner, making the writ petition not maintainable. However, the court overruled this objection, stating that the availability of an alternative remedy does not oust the jurisdiction of the writ court. The court emphasized that judicial discretion must be exercised based on the facts and circumstances of each case. The writ petition was admitted for hearing, and the parties exchanged affidavits, leading the court to decide not to relegate the petitioner to the appellate forum.

3. Compliance with Statutory Requirements by the Collector:
The court reviewed whether the Collector adhered to the statutory requirements prescribed by Rule 62 of the consolidated rules made under Section 85 of the Act and Rule 9 of the 2003 Rules. The Collector's order referenced a compulsion to apply directive principles under rule 62/85 of the B.E. Act, 1909. However, the court noted that the Act contains sections, not rules, and the reference to a rule of the Act seemed misplaced. The court clarified that Rule 62 of the consolidated rules framed under Section 85 of the Act was relevant and quoted its principles, emphasizing the need for proper enquiry and consideration of public grievances.

4. Consideration of Local Objections and Their Validity:
The court observed that the Collector's decision was influenced by local objections, including those from Councillors and political party members. The court criticized the Collector for not conducting an enquiry to ascertain the creditworthiness of the complaints. It highlighted that the objections seemed to be driven by vested interests and malice, rather than genuine concerns. The court emphasized that the Collector failed to discharge the obligation to hold a proper enquiry and did not deal with the application with a free and independent mind.

Conclusion:
The court found the Collector's order indefensible and set it aside. It directed the Collector to conduct a proper enquiry as contemplated in Rule 62 of the consolidated rules and Rule 9 of the 2003 Rules. The enquiry must ascertain the veracity of the allegations regarding vested interests and provide a reasoned decision on the petitioner's application, considering relevant factors such as the location of other nearby liquor shops and potential loss of State revenue. The entire exercise must be completed within three months, and a reasoned order must be communicated to the concerned parties.

Order:
The writ petition was allowed to the extent mentioned, with no order as to costs. Urgent photostat certified copies of the judgment and order, if applied for, may be furnished to the applicant at an early date.