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TMI Blog2013 (7) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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. - W.P. 13217 (W) of 2012 - - - Dated:- 5-7-2013 - Hon ble Justice Dipankar Datta,JJ. For the petitioner : Mr. Joyak Gupta, Mr. Susanta Saha For the Respondents : Mr. Suman Sengupta, Mr. Krishnendu Sarkar ORDER 1) The petitioner had applied for a foreign liquor ON shop licence. Necessary enquiry was conducted and, thereafter, the report was placed before the Additional District Magistrate (T) and Collector of Excise, North 24 Parganas together with local objections that had been received. The petitioner and the objectors were heard on November 17, 2011. The Collector upon perusal of the enquiry report and its enclosures was of the view that the site offered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law laid down by the Supreme Court in its decision reported in AIR 1971 SC 33 : L. Hirday Narain v. Income-Tax Officer, Bareilly. The objection stands overruled. 4) I have heard Mr. Gupta, learned advocate for the petitioner and Mr. Sengupta and Mr. Sarkar on the merits of the writ petition at length. My attention has been invited to various factual issues, viz. some of the complainants have vested interests (should the petitioner be granted licence, the financial interest of other licensees who have been running liquor shops in the locality would be affected and it is at their instance that those complainants were acting), mala fide of one of the complainants (from his building a foreign liquor shop has been operating), participation of a representative of a nearby school in the hearing although the enquiry report is clear regarding lawfulness of the site (meaning thereby that no educational institution is located within one thousand feet of the proposed site), political interference, etc. I need not examine these factual issues while judicially reviewing the order dated February 16, 2012 passed by the Collector. It is settled law that judicial review by a court of writ is ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to which the near neighbours object on grounds which, upon inquiry, appear to be sufficient and free from malice or ulterior motives. 8) Although not referred to in the impugned order, I shall also assume, considering the affidavit-in-opposition filed on behalf of the respondents 1 to 5 that the Collector had in mind provisions contained in Rule 9 of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain other Intoxicants) Rules, 2003 (hereafter the 2003 Rules). The portion of Rule 9 that is relevant for a decision here, is quoted below: The Collector shall also go through the following steps, for disposal of the proposal for grant of such licence:- A. He shall ensure whether the following information and documents have been furnished by the applicant, along with the application:- a) A copy of treasury challan, showing deposit of non-refundable application money as fixed under the prevailing rules. b) An estimated monthly sale of Foreign Liquor from the proposed licensed premises. B. After obtaining the application with the information and documents mentioned above, the Collector shall cause enquiry of the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he may offer any such site elsewhere but not in that particular locality. After careful consideration of the entire matter the Collector of the District is under lawful compulsion to apply the directive principles as laid down under rule 62/85 of the B.E. Act, 1909. Therefore, the petition of the ON category license on the proposed site is hereby rejected. However, it is also observed that on enquiry, the offered site was found to be a lawful site as per existing rules. Therefore, the applicant may be given the opportunity to offer any other restriction and objection free site for the same category of license for further consideration. 11) Bare perusal of the aforesaid extract would reveal the sentiments of the people of the locality being preferred to the claim of the petitioner for issuance of a licence in his favour. Experience has shown that whenever a person is desirous of obtaining a liquor licence and makes an application in that respect, lot of heat is generated in the locality and some of the local people masquerading as protectors of the rights of the aam aadmi throw in their weight and create impediments. What happens after the licence is issued overruling t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e area. Insofar as the demand is concerned, the Collector appears to have formed an opinion in favour of the petitioner and declared the site to be a lawful site as per existing rules . The obligation that the rules cast on the Collector to hold proper enquiry upon receipt of local objections, i.e. whether the objections are sufficient and genuine as well as free from malice or ulterior motives, does not appear to have been discharged in the present case. The affidavit-in-opposition is silent in this respect. I am constrained to hold that the Collector washed his hands off upon receipt of complaints from, inter alia, political leaders (Councillors) and members of a particular political party and did not have the courage to deal with the application with a free and independent mind. That is not how an application for licence is to be considered. It is true that one cannot claim a right to carry on business in liquor but once the State in its wisdom has laid down rules for grant of licence, and liquor shops in the State are found to be in abundance with increased demand of customers resulting in augmentation of State revenue, there appears to be no reason as to why the petitioner sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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