Biswanath Halder vs State of West Bengal

Joymalya Bagchi, J.—Order dated 25.2.2015 passed by the Excise Commissioner, West Bengal dismissing the appeal of the petitioner on the ground as barred by limitation has assailed before this Court. It appears that by an earlier order dated 13.1.2012 the Commissioner had remanded the matter to the ADM (G) & Collector, Alipore, South 24 Parganas to reconsider the settlement of the F.L. `Off'' licence of M/s. Wine Stores, Diamond Harbour after giving a hearing to the petitioner as well as the private respondents herein. Such decision of the Commissioner came to be challenged by the private respondent no.4 in W.P. 5140 (W) of 2012 wherein a Learned Single Judge of this Court disposed of the writ petition, inter alia, holding as follows:

"The issue as to whether the statutory appeal was entertainable after expiry of the period towards preference of such statutory appeal has not been answered by the said respondent no.2. The observation of the said respondent no.2 to that effect, the excise authorities had sent several letters to all the joint licensees for hearing before the ADM & Collector, before permanent settlement under Rule 14(6) of the West Bengal Excise Settlement of Retail Licenses Rules published under 800-Ex on 29th July, 2003, does not stand fortified through appropriate documents and records.

On the said limited grounds, the impugned order dated 13th January, 20912 passed by the respondent no.2 is set aside.

The respondent no.2 is directed to consider the statutory appeal preferred by the respondents afresh, in the light of the observations made above, upon granting an opportunity of hearing to the writ petitioner and the private respondents herein and to pass a reasoned order, in accordance with law and to communicate the same to the writ petitioner and the private respondents.

The said exercise should be completed by the said respondent no.2 within a period of eight weeks from the date of communication of this order".

Pursuant thereto the issue of limitation was considered by the Commissioner and it was held by the impugned order dated 25.2.2015 that as no document explaining the delay was readily available and give the authority had no power to condone the delay, the appeal was liable to be dismissed.

Mr. Pal, learned counsel for the petitioner, submits that no notice was served upon them as has been observed by this Court in the aforesaid writ proceeding. He, accordingly, submitted that the impugned order is liable to be set aside and the appeal ought to be considered on merits.

Mr. Ghosh, senior counsel appearing for the private respondent no.4, at the very outset, raised objection as to maintainability of the writ petition on the ground that the order was revisable under the Act. He further submitted that it appears from the impugned order that delay was not properly explained and accordingly no interference is called for.

Learned counsel for the State relying on an order dated 23.12.2015 passed by this Court in W.P. 29846 (W) of 2015 argued that the concerned authority had power to condone the delay.

I have considered the submissions of the parties. It appears that in the earlier writ petition the learned Single Judge had held that the plea of sending letters had been given to the joint licensees under Rule 14(6) of West Bengal Excise Settlement Retail Licence Rules was not fortified through appropriate documents and orders. Such finding of fact, however, has not been assailed by either of the parties.

I find that submission was made on behalf of the Excise Authorities before the Commissioner that efforts had been made to serve letters to the joint licensees at the shop but such efforts turned futile as none was present.

It is clear that petitioner had not been notified of the hearing before the ADM (G) & Collector of Exercise where the license was settled in favour of the private respondent no.4

It has been strenuously argued by Mr. Ghosh that the petitioner was aware of the fact that his clients were running the shop and it was incumbent of them to make adequate enquiries in the matter and promptly challenge the decision of the ADM-cum-Collector. On the other hand, the petitioner sat tight over the matter and approached the concerned authorities after a lapse of about a decade.

I am of the opinion that it was incumbent on the authorities prior to taking decision in favour of the private respondents to notify the joint lessees including the petitioners. In the earlier writ proceeding it was held that the plea of sending letters to joint licensees is not fortified by appropriate documents and records. The Commissioner was required to decide the issue of limitation in the light of such observation. The Commissioner completely lost sight of the aforesaid observation of the learned Single Judge and came to a finding that no document explaining the delay was available. It was the duty of the Excise authority to establish through production of documents to establish service of notice upon the joint licensee of the hearing conducted by the ADM-cum-Collector. The authority singularly failed to do so and the Collector illegally shifted the burden on the petitioner and rejected the appeal stating he was unable to produce documents for explaining the delay. The Commissioner also erred in law in coming to the conclusion he did not have power to condone such delay in view of the law declared by this Court in W.P. No.5140(W) of 2016. In the said unreported judgment this Court had unequivocally held that the Commissioner has power to condone delay in the event an appeal is filed out of time. Moreover, even if the argument of Mr. Ghosh that the petitioner was aware that the respondent no.4 was running the shop is accepted, knowledge of such fact cannot give rise to an irresistible inference that the shop had been lawfully settled in favour of respondent no.4 herein in the absence of any material on record that notice of such proceeding being served on the petitioners.

In view of the aforesaid facts particularly the finding recorded by the learned Single Judge in the earlier writ proceeding that there was no cogent material evidencing service of notice upon the joint licensees in this case and the law declared by this Court in W.P. No.5140(W) of 2016 that the Commissioner is vested with the power to condone delay, I am of the opinion that the Commissioner did not have any option but to condone the delay and hear the appeal on merits. The Commissioner has failed to exercise his discretion in accordance with law and condone the injustice, this Court in exercise of its writ jurisdiction may issue direction upon the Commissioner to exercise his discretion in a particular manner. Reference in this regard may be made to Comptroller and Auditor-General of India, Gian Prakash, New Delhi & Anr. v. K.S. Jagannathan & Anr., (1986) 2 SCC 679 (Para-20).

Accordingly, I set aside the impugned order dated 25.3.2015 and remand the matter before the Commissioner and direct him to condone the delay and hear the appeal on its merits and pass appropriate reasoned order thereon after giving an opportunity of hearing to the petitioner and private respondents herein within four weeks from the date of communication of the order. Decision, so taken, shall be communicated to the petitioner and the private respondents within a week thereof. I make it clear that I have not expressed any opinion on the merits of the appeal which shall be decided by the Commissioner independently and in accordance with law.

With these directions, the writ petition is disposed of.

Urgent photostat certified copy, if applied for, be given to the parties subject to all requisite formalities.