Meera Goswami vs The State Of West Bengal & Ors.

Raja Basu Chowdhury, J :

The instant writ petition has been filed, inter alia, praying for a direction upon the respondents to revoke the impugned notice dated 2^nd June, 2026 whereby the petitioner was notified that the certificate of enlistment issued in her favour for running the business of foreign liquor on shop in the name and style of Tiloka FL on shop has been cancelled.

The petitioner claims to be a proprietor of liquor business operated in the name and style of Tiloka FL on shop from its place of business at the ground floor of ‘Akka Apartment’, 3204 Nayabad, Kolkata 700099. The petitioner has, however, clarified in the above petition that the entrance to the liquor shop is separate from the entrance utilised by the residence of the aforesaid apartment. It is also the petitioner’s case that the petitioner had been previously operating the liquor business from Arambag and was issued an excise licence by memo dated 18^th March, 2024. Later the said business was shifted from Arambag to the current location at Nayabad, the transfer of the licence was effectuated vide the aforesaid memo dated 18^th March, 2024. The said transfer was regularised upon payment of requisite fees. Subsequent to the transfer of the excise licence, the petitioner obtained all other requisite licence and documentation as well as permits including but not limited to liquor licence vide no.178 in the register, food licence as also fire licence. The petitioner as required in law also obtained the certificate of enlistment for running the business from the locale for the financial year 2025-26 on 2^nd May, 2025. Upon completion of all formalities and upon obtaining all requisite permissions, the petitioner commenced its operation on and from 1^st August, 2025. Incidentally, shortly after commencement of the above business, the petitioner received a notice/memo dated 11^th August, 2025 issued by the respondent no.5 whereby the petitioner was intimated of a complaint in form of mass petition submitted by the residents of the aforesaid apartment in respect of the petitioner’s liquor business running from the aforesaid apartment. By the aforesaid notice, the petitioner was called upon to meet the Deputy Licence Officer, Borrow-XII, Kolkata Municipal Corporation (KMC) within 7 days with all relevant documents.

Though, the petitioner had appeared before the authority and placed all relevant documents in support her claim of the aforesaid certificate of enlistment and had also filed her response, the municipality by ignoring such response had issued a show-cause notice on 23^rd September, 2025, calling upon the petitioner to show-cause as to why the certificate of enlistment issued in the name of the petitioner for running the on-shop liquor business shall not be cancelled. According to the petitioner, on 2^nd June, 2026, the certificate of the petitioner was cancelled by a cryptic order, which has been enclosed to the petition.

When the above writ petition was moved on 13^th August, 2026 both the learned advocates for the petitioner as also the learned advocate for the KMC by placing before this Court the notice issued by the Deputy Licence Officer, KMC had submitted that the petitioner’s prayer for reconsideration has been reviewed by the Department whereupon it was decided that the petitioner’s case shall be dealt with in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to the “said Act”).

Having regard to the above disclosure and noting that the matter was under reconsideration, by an order dated 13^th August, 2026 taking into consideration the fact that the petitioner’s foreign liquor on shop business had remained non-functional despite a valid licence issued by the excise authority by reasons of the cancellation of the certificate of enlistment which in turn was having an impact on the State Exchequer, directed that the decision in this regard by the Municipal Authorities in terms of memo dated 24^th July, 2026 must be taken on an expeditious basis, within a period of 7 days from date. Following the aforesaid, an undated order was passed by the Chief Manager (Licence) and the same was forwarded to the petitioner. The petitioner has assailed the same by filing an application being CAN 1 of 2026.

When the matter came upon for consideration on 27^th August, 2026, this Court had directed the State to take appropriate instruction in the matter and produce the records in relation to grant of excise licence in favour of the petitioner for running F.L. on shop from the ground floor of Akka Apartment. The State has since filed a report dated 28^th August, 2026 which is taken on record. From the aforesaid report, it would transpire that the shifting of the F.L. on shop licence was made to the new site being the premises of Akka Apartment, after following the restriction in terms of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 with latest amendments as published vide Notification dated 29^th July, 2023 (in short, the “said Rules”). The approval of the Government was communicated by the Additional Excise Commissioner Revenue 3 Excise Directorate to the ADM (G) and Collector of Excise, South 24 Parganas. The above order was issued after considering the law and order situation of the proposed site which was sought from ADM(G) and Collector of Excise, South 24 Parganas and following the same the licence was issued which was valid till 22^nd July, 2025 to 31^st March, 2026, later the same was renewed for the financial year 2026-27.

In the light of the above, this Court by order dated 21^st September, 2026 noting that now the Municipality is not inclined to grant further permission for running the liquor shop from the residential establishment having regard to the provision contained in Section 435(1) of the said Act, was of the view that the Municipality should file a report before this Court and identify the number of liquor shops in support whereof certificate of enlistment has been issued and whether any of such shop is situated in a residential premises under the jurisdiction of the KMC. The particulars of the name of the shops, validity of the licence was also directed to be disclosed before this Court by way of a report.

Following the above, the matter has come up for consideration today. The municipality has filed a list of the sites, the business premises in respect whereof foreign liquor licence has been issued, such list is however, limited to ward No. 109 and does not include the entire city of Kolkata. From the aforesaid document, it would be apparent that at least 5 residential complexes are identified wherefrom the liquor trade has been permitted.

The learned Additional Advocate General has appeared for the Municipality and submitted that since the occupants of the residential complex had raised an objection regarding running of the foreign liquor onshop from the aforesaid apartment, the municipality had considered the same and following the above the order impugned was passed. According to him, simply because some other parties are carrying on business from residential premises the same would not authorize the petitioner to seek for an order, as no relief can be granted on the basis of negative equality.

Having heard the learned advocates for the respective parties and having considered the materials on record, I find admittedly, the petitioner has been carrying on the business of sale of liquor which is not a prohibited business within the State of West Bengal. The circumstances for which the liquor business was transferred from Arambag to Nayabad, Kolkata has been explained by petitioner. The transfer was not automatically granted on the basis of an application filed by the petitioner, rather the same was subject to scrutiny in terms of the said Rules. To morefully appreciate the aforesaid scope of enquiry, the relevant rule is extracted hereinbelow:

Records reveal that not only did the petitioner’s application survived the test of scrutiny based on which the recommendation was made by the Alipore Excise District for shifting at the proposed new site but the law and order situation and the implication of setting up liquor shop at the proposed site was also sought for from the ADM(G) and Collector of Excise, South 24 Parganas and also from the Chief Commissioner of Police, Kolkata vide memo dated 25^th April, 2025. Following the aforesaid and on the basis of positive recommendation, the petitioner’s proposed site having succeeded the scrutiny of the Government, approval was granted following which the demand notice was raised and the payment was made. It is only thereafter, the new licence was issued. The municipality also issued two separate certificates of enlistment to the petitioner for carrying on business. It is not the case of the municipality that the petitioner failed to make disclosure of appropriate information in the application seeking permission for grant of certificate of enlistment. Later, however, on the basis of the representation made by the apartment owners, an enquiry was initiated and following the same by a cryptic order dated 2^nd June, 2026, the petitioner’s licence was cancelled.

Subsequently, on an attempt to carry out a post decisional hearing, the authority had once again heard the petitioner and on this occasion the claim made by the respondents that the cancellation of licence was based on the objection raised by the owners did not survive, as undated order passed by the Chief Manager in no uncertain term would disclose that in course of hearing on 19^th August, 2026 Akka Apartment was represented by Mrinal Kanti Dey, a resident of Akka Apartment and the Secretary of the Apartment i.e. the objector, who in his written submission filed on behalf of the complainants stated that the foreign liquor authority does not create any disturbance to the residents of the flats and at present he has no objection with the running of the business without hampering law and order situation. Incidentally, despite noting the same, the Chief Manager (Licence) by his order, after considering all aspect and Section 435A(1) read with Schedule VA of the said Act, was of the view that the business in question is located at a residential premises, the same is not authorised for grant of certificate of enlistment and accordingly, the order of cancellation of certificate of enlistment was maintained.

From the materials on record, I find that admittedly, the municipality has permitted business of foreign liquor to run from at least five (5) residential premises. However, in the petitioner’s case, a different standard has been adopted. In this context, it would be relevant to consider the restriction imposed to carry on business from a residential premises, which is not to be used without municipal licence. The same finds place in Section 435 of the said Act. Later by the Kolkata Municipal Corporation (Amendment) Act, 2014, which was published in the Kolkata Gazette on 9^th January, 2015, Section 435A was inserted after Section 435 by Section 15 of the Amendment Act, thereby allowing trade or business alongside major roads. Section 435A(2) also seeks to regularize the existing trade or business. To morefully appreciate the scope of Section 435A of the said Act, the same is extracted hereinbelow:

On a perusal of Section 435A(1) of the said Act, the same would demonstrate that the same deals with permitting certain business from residential buildings alongside major roads. Nothing has, however, been defined in the said Act as to which are major roads. However, under Section 2(71) of the said Act public street has been defined to mean and include a road. In terms of Section 343(5) of the said Act, the municipality is obliged to maintain a register and include the names of the public streets. Section 346 of the said Act deals with the classification of all public street. The same requires classification to be done with due regard to traffic role of the particular public street, the nature and volume of traffic on it, its existing width and abutting land uses. To morefully appreciate the manner in which the above classification has been made, Section 346 of the said Act is extracted hereinbelow:

Nothing has, however, been disclosed before this Court to demonstrate that the street in front of Akka Apartment falls under Category I, II or III above. The width of the access road to Akka Apartment and the Volume of Traffic is also not discussed in the order. I, however, find that Section 435A does not deal with the ban for grant of certificate of enlistment in residential complex alongside major road for wine and liquor shops. The same only provides that in residential building alongside a major road, commercial or trade activities which are not hazardous in nature as specified in Schedule VA of the said Act, except wine or liquor shop may be allowed by issuance of certificate of enlistment. In other words, the restriction is only limited to residential premises alongside major roads for business or trade activities which are hazardous in nature and the same does not deal with permission for wine or liquor shop. This section does not start with a non obstante clause and has no overriding effect on Section 435 which creates a bar for use of non-residential premises for the purpose mentioned in Schedule V without or otherwise in conformity with the municipal licence. The petitioner has been granted a licence for food items in non-residential premises. Section 2(39) defines ‘food’, which is an inclusive definition and includes food and drinks, thereby only excluding drugs and water. The licence (Certificate of Enlistment) records, the nature of trade is foreign liquor onshop, for which certificate of enlistment under Section 199, and permission under Section 421 of the said Act has been granted. It may be noted that Section 421, inter alia, deals with the permission of use of any premises as liquor house, tavern, wine shop, beer shop, spirit shop etc., and the only restriction in granting such permission is in Section 425 of the said Act as would appear from proviso to Section 421(1). Section 425 of the said Act would demonstrate that permission is subject to licence or permission from the Government or other statutory authority.

Admittedly, in this case, the petitioner has been granted licence for running its liquor business in terms of West Bengal Excise (Selection of New Site and Grant of Licence for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 and upon surviving the scrutiny and the hurdle or restriction on grant of licence in new sites, inter alia, including the law and order. As such the grant of permission under Section 421 which requires satisfaction of the test of Section 425 of the said Act stands satisfied in this case.

The legislature being conscious of the above while enacting Section 435A for obvious reasons did not include the wine and liquor shops, as the same would transgress upon the authority of the West Bengal Excise Act, 1909 and Rules framed thereunder to select new site and grant licence for retail sale of liquor. The report filed by the Deputy Excise Collector, Kasba Range, Alipore would show that the licence was issued after the proposed site was enquired into and found restriction free, suitable and on required law and order report being obtained. The same has been renewed and is valid till 2026-27. Supplementary orders issued by the State Government with the object of implementing Ease of Doing Business (EoDB) during the Covid period, cannot seek to incorporate a bar, which is not recognised by the Statute.

This apart, nothing has also been identified by the municipality as to which road can be construed as a major road. In the said Act or the Rules framed thereunder major roads have not been defined. In my view, the municipality cannot as per its whims and fancies pick and choose a particular residential premises and hold that the restriction is limited to that premises. There are no regulations or rules framed to identify which particular roads is a major road in the city of Kolkata, at least nothing has been placed before this Court.

The undated order forming part of CAN 1 of 2026 otherwise also appears to be an outcome of post decisional hearing as the same records that the cancellation of certificate of enlistment was made after maintaining due procedure and was sustained. Interestingly enough, the order does not consider the permission under Section 421. The above permission has not been interfered with, what was cancelled by the order dated 2^nd June, 2026 is the Certificate of Enlistment. Although, the hearing officer had tried to make out a case that the petitioner undertook to comply with the provisions of Section 435 and 435A read with Schedule V and VA thereof, and as such cannot carry out the business of Foreign Liquor onshop from the residential building, in my view, does not hold good as no restriction contrary to statute can be imposed by way of guideline. In view of the above, the decision of the municipality in cancelling the Certificate of Enlistment along with its post decisional order appears to be arbitrary exercise of authority, perverse and the same are set aside and the certificate of enlistment stands restored.

All consequences shall follow.

Accordingly, the writ petition being WPA 18532 of 2026 along with CAN 1 of 2026 stand disposed of.

Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities.