S. Sree Kumar vs Lieutenant Governor And others

This is a writ petition challenging the issuance of bar licences by the Deputy Commissioner, South Andaman District in respect of M/s Haddo Point Bar & Restaurant, Haddo, Port Blair and M/s Hotel Shalimar Inn Bar & Restaurant, Delanipur, Port Blair.

According to the learned advocate appearing on behalf of the petitioner, in a civil suit pending between the respondent No.4 and the petitioner with regard to an agreement in which the two bars are subject matters of dispute, an injunction order was passed and the said order was communicated to the authorities concerned with an objection to issue of any bar licence in respect of the said bars either to the respondent No.4 or in respect of any person. The son of the respondent No.4 is the respondent no.5, Shri Krishna Mohan who applied for bar licence in respect of the two bars.

By an order dated November 13, 2018, the said application for grant of licence made by the respondent No. 5 was not considered at that stage and was kept pending for consideration after the disposal of the suit. The order was intimated to the learned advocate appearing for the petitioner as well. In the said communication, the application of the learned advocate of the petitioner dated October 26, 2018 containing the objection of the petitioner was also referred to.

From the records of the case placed before me, it is evident that there was an objection made by the petitioner and on the basis of the same, the authorities initially did not grant bar licence in respect of the bar. It appears thereafter, that by an order dated November 21, 2018, bar licences were granted in respect of the two bars but without communicating the same to the petitioner or the petitioner's learned advocate. The petitioner was not called for a hearing. The objection of the petitioner was not considered.

The learned advocate for the state-respondent was directed to produce the records in order to show how the licences were issued. He has produced the records before me from which it would be appear that by an undated letter, the respondent no.5 requested for grant of the licence in view of the fact that he was not a party to the suit and there was no injunction against him.

Thereafter, I find from certain office notes on the file that the application of the respondent No.5 was considered and the licence was given in his name but there has been no mention about the objection raised by the petitioner nor was the petitioner called or intimated the about the change of mind of the authorities within a period of seven days from the date of the application of the respondent no.5.

Mr. S.C.Mishra appearing on behalf of the state-respondent submits that they have followed section 14 of the Andaman and Nicobar Islands Excise Regulation, 2012 (hereinafter referred to as the said Regulation) and he submits that there was no bar in granting the licence in the name of the respondent no.5.

Mr. Kumar has produced the records of proceedings which was obtained under RTI Act from which it is seen that on the basis of the letter (undated), the authorities considered the matter and granted the licences. But, there is nothing on record to show that the petitioner as the objector was heard or informed about the matter.

However, Mr. Kumar vehemently submits that this writ petition is not maintainable in view of the existence of the alternative remedy and Mr. Kumar further relies on the judgment of a Four Judges Bench of the Hon'ble Apex Court in Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and others reported in AIR 1976 SC 578 . According to him, the petitioner was not a person aggrieved and as such did not have any right to maintain the writ petition.

The decision cited by Mr. Kumar does not apply in the facts of this case because the petitioner, in my opinion, is a person aggrieved as the order was passed behind the back of the petitioner although the petitioner had raised an objection and the fact that the petitioner was an objector was recognized by the authorities which is apparent from the order dated November 13, 2018.

The learned advocates for the state-respondent and the respondent Nos.4 and 5 submit that this writ petition was also not maintainable in view of the existence of the alternative remedy.

Having heard and considered the submissions made by the respective parties, it is not in dispute that there is a civil suit pending between the respondent no.4 and the petitioner and certain ad interim orders were passed therein, when the matter regarding grant of licence was pending before the authority for consideration. It is also seen that an objection was filed before the authority concerned with a request not to grant licence in respect of the two bars to either the respondent no.4 or to any other person. The authorities having considered the said objection at the first instance did not consider the case of grant of licence in respect of the respondent no.5. This decision of the authority was also communicated to the objector/writ petitioner. But it appears from the records that the writ petitioner was not heard when the final order for granting licence was passed. The petitioner's contention is that this is in violation of the principles of natural justice and as such the writ petition was maintainable despite the existence of an alternative remedy. However, this court cannot sit in appeal on the disputed questions of facts.

Considering the arguments advanced by the respective parties, this writ petition is disposed of by directing the petitioner to file an appeal before the appropriate authority in terms of the said regulation and the said appeal be disposed of within a period of two weeks from the date of filing of such appeal.

As regards the prayer for an interim order for stoppage of the bar, the said prayer is rejected as balance of convenience and inconvenience is in favour of the respondent no.5 inasmuch as, when the petitioner is not a contender for grant of licence in respect of the said bar in his favour, there is no reason as to why the business should be stopped at this stage till the appellate authority takes a decision with regard to the legality of the action of the authorities in granting the licence.

The only prejudice that the petitioner has agitated to have suffered with respect to grant of licence is that although, there is an order of the authority dated May 21, 2018 to transfer the existing balance stock of the two bars to Blue Bird Bar, Garacharma which is owned by the petitioner, the authority had not yet taken any action to transfer the stock. On the contrary, she submits that the respondent nos. 4 and 5 taking advantage of the licence are trying to sell out those stocks lying the two bars. This is disputed by the learned advocate for the respondent no.5. However, this matter shall be gone into by the appellate authority when the appeal is finally decided. The appellate authority shall see that the letter dated May 21, 2018 is complied with regard to the transfer of stock.

I have not gone into the merits of the claim and counterclaim of the parties, the appellate authority shall decide the point in accordance with law.

With the above observations, this writ petition is disposed of. There shall, however, be no order as to costs.