Tapan Kumar Dari vs State Of West Bengal & Ors.

Jyotirmay Bhattacharya, C.J.

This Mandamus Appeal is directed against an order passed by a learned Single Judge of this court on 20th June 2018 in W.P. No. 8320 (W) of 2018

filed by the writ petitioner/appellant. Considering that the competent officer was yet to conduct a hearing on the basis of the show cause notice issued,

the learned Single Judge refused to interfere with the progress of the said proceeding at that stage by holding that interference is not needed on the

basis of the mere apprehension that the writ petitioner may not get sufficient opportunity to defend himself at the hearing of the show cause

proceeding. While dismissing the said writ petition, the writ court, however, directed the State respondents to hand over a copy of the report of the

Officer-in-Charge of Excise, Haripal Circle dated 13th March 2018, relying on which, the show cause notice dated 22nd March 2018 was issued by

the competent authority.

The legality and/or propriety of the said order passed by the writ court is under challenge in this Mandamus Appeal before us. It appears to us that

show cause notice was issued by the Joint Commissioner of Excise and Superintendent of Excise, Hooghly on 22nd March 2018 on two fold grounds,

namely, (i) holding live performance on 11th March 2018 at the licensed premises without having requisite permission for the date, which is in violation

of the provision of Rule 239 of the West Bengal Excise (F.L) Rules, 1998, as amended up to date read with the condition XVI of the licence held by

the writ petitioner, hereinafter referred to as the First Charge, and, (ii) the Excise Personnel were obstructed by the writ petitioner and his associates

from discharging their official duties and forcefully baffled them at the time of verification of the information and collection of evidence regarding the

abovementioned unauthorised act, which attracts the penal provisions of Section 5(1)(d) of the Bengal Excise Act, 1909, as amended up to date,

hereinafter referred to as the Second Charge.

Thus, it appears that the said show cause notice was issued on two different charges, which are independent of each other. So far as the first charge

is concerned, it is submitted by Mr. Kar, learned Senior Counsel appearing for the writ petitioner/appellant that so far the licence for running ‘on

shop’ which was required to be taken by the appellant/writ petitioner under Rule 9 of the West Bengal Excise (Selection of New Site and Grant of

Licence for Retail Sale of Licence and Certain other Intoxicants) Rule, 2003 is concerned, the writ petitioner’s licence remained valid till 31st

March 2018. It is pointed out by him that the writ petitioner applied for renewal of the said licence on 13th March 2018.

He further submitted that in view of the provision contained in Rule 14(3) of the said Rules, the writ petitioner is entitled to run his said business as the

fate of his application for renewal has not yet been intimated to the writ petitioner. He, however, fairly submits that the permission for holding live

performance at the licence premises which was obtained by the writ petitioner under Rule 239 of the West Bengal Excise (F.L.) Rules, 1998 stood

expired on 8th March 2018. The alleged incident of holding live performance on 11th March 2018 in violation of the extant Rule is one of the grounds

for issuance of the said show cause notice.

With regard to the other charge, i.e. obstruction being created to the Excise Personnel from discharging their official duties by the writ petitioner on

11th March 2018 is the other ground for issuance of the said show cause notice. We were informed by the learned counsel appearing for the parties

that two criminal complaints which were lodged; one by the performer and the other by two Excise Officers, are pending at the investigation state

before the police authority. Mr. Majumdar, learned A.A.G., appearing for the respondent authorities submits that since the second charge to some

extent is dependent upon the fate of the investigations which are being made relating to those criminal complaints, his client will not presently proceed

with the said charge till the conclusion of the investigation proceedings by the police authority.

In view of such submissions made by Mr. Majumdar, it appears to us that the authority concerned will have to conclude the present proceeding arising

out of the said show cause notice by restricting its consideration with regard to the holding of live performance at the licence premises on 11th March

2018 in violation of the provisions contained in Rule 239 of the West Bengal Excise (F.L.) Rules, 1998, i.e. the First Charge. In our view, for

conclusion of the said proceeding, no oral evidence is required to be led by any of the parties as the said proceeding can be concluded on the basis of

the undisputed documentary evidence available to the writ petitioner as well as the authority concerned. As such, we hold that no useful purpose will

be served by deferring the hearing of the said proceeding arising out of the said show cause notice with regard to the first charge only. In our view no

oral evidence needs to be adduced by any of the parties to dispose of the said show cause proceeding relating the First Charge only.

We, thus, dispose of the appeal by permitting the authority concerned to conclude the said proceeding arising out of the said show cause notice by

restricting its consideration with regard to the first charge, i.e. holding of live performance on 11th March 2018 in violation of the provisions contained

in Rule 239 of the West Bengal Excise (F.L.) Rules, 1998. It is further made clear that in course of hearing of the proceeding, if the authority

concerned intends to rely upon and/or refer to any other documents excepting the documents which were referred in the show cause notice, the

authority concerned will allow inspection of such document(s) to the writ petitioner/appellant before dealing with the same.

Before we part, we make it clear that suspension of the proceeding with regard to the second charge regarding attraction of the penal provisions of

Rule 5 (1)(d) of the Bengal Excise Act, 1909 as amended up to date, will not be construed as abandonment of the said charge. It is thus made clear

that in case the authority concerned, after conclusion of the criminal investigation, feels that they will proceed with the said show cause proceeding

with regard to the said Second Charge, then the authority will issue another notice intimating the writ petitioner of its intention to do so. It is also

clarified that in case such situation arises, the concerned authority will conclude the said proceeding after giving all reasonable opportunity of hearing

to the writ petitioner/appellant.

We however make it clear that we have not expressed our views with regard to the merit of the show cause and as such the authority concerned is

free to decide the said proceeding as per law and according to its own wisdom, without being influenced by any of the observations made by us

hereinabove. In view of disposal of the appeal in the manner as aforesaid, the other writ petition being W.P. No. 4554 (W) of 2018 (Tapan Kumar

Dari â€"vs- State of West Bengal & Ors.) practically becomes infructuous. As such, the said writ petition is also deemed to be disposed of. In view of

disposal of the appeal, the application for stay being CAN No. 3946 of 2018 also, stands disposed of. Urgent Photostat certified copy of this order, if

applied for, be supplied to the Learned advocates for the parties immediately.