JUDGMENT
Ashim Kumar Banerjee, J.
1. Short question involved in this appeal is whether the Government is entitled to issue a supplementary licence to an existing licence holder under Rule 15(2) of the Bengal Excise Rules, 1993 or the under Rules, 2003 when there had been restrictions imposed by the Government order that a person having excise licence is disqualified to apply for another excise licence at the new .site
2. The appellants are the existing excise licence holders for country spirit. Similarly the private respondents were having excise licence for pachwai. By introduction of foreign liquor, country spirit as well as colour and flavoured spirit, pachwai has lost its business worth and as such the Government decided to give them supplementary licence to deal with country spirit as well as the country spirit licence holders were offered supplementary licence to deal with ram and beer. The present disputes pertain to these two groups of licence holders. According to the appellants the Government was not entitled to issue supplementary licence to the pachwai licence holders to deal with country spirit. Hence, this writ petition.
3. The writ petition was heard and disposed of by Barin Ghosh, J. by his judgment and order dated March 13, 2001 appearing at pages 238-261 of the paper book. His Lordship ultimately held that Rules do provide distinct method and manner of serving pachwai to consumers but that can not stand in any way of permitting pachwai vendors to sale other intoxicating drinks.
4. Being aggrieved by the said judgment and order dated March 13, 2001 the appellant preferred the instant appeal. To pursue the problem in hand relevant sections of the Bengal Excise Act and the relevant rules framed thereunder need be discussed.
5. Under Sections 85 and 86 of the Bengal Excise Act the State is empowered to frame rules for regulating sale and distribution of intoxicants drinks and other items. Accordingly, rules were framed. Under Rule 15 any holder of licence for retail sale of country spirit could be granted a supplementary licence for sale of beer or coloured and flavoured spirit. This was provided under Sub-rule (1). Under Sub-rule (2) the holder of a licence of retail sale of pachwai was to be granted a supplementary licence for retail sale of coloured and flavoured spirit. Rule 15(1) and (2) being relevant herein and are quoted below :
“15. Supplementary licence.–(1) The holder of licence for the retail sale of country spirit for consumption off and on the premises may, on application, be granted a supplementary licence for the retail sale and beer for consumption on the same licensed premises, or a supplementary licence for the retail sale of coloured and flavoured spirit for consumption off and on the same licensed premises, or both.
(2) The holder of a licence for the retail sale of pachwai for the consumption off and on the premises may, on application, be granted a supplementary licence for the retail of coloured and flavoured spirit for consumption off and on the same licensed of premises.”
6. Rule 15(2) was subsequently amended on 9th March, 2000 by providing supplementary licence of country spirit alongwith coloured and flavoured spirit to pachwai licence holders,
7. During the pendency of the appeal on July 30, 2003 a new rule has been framed which also provides for similar supplementary licence to various licence holders. Under 2003 rules pachwai licence holders for consumption of and on the site became entitled to get a supplementary licence for country spirit and coloured and flavoured spirit.
8. Under the West Bengal (Selection of New Sites and Grant of Licence for Retail Sale of Spirit and Certain Other Intoxicants) 1993 there was no specific restriction for the existing licence holder to apply for licence at the new site. However, by a Government order called as West Bengal Excise (Selection of persons of grant of licence at new site for retail sale of spirit and certain other intoxicants other than foreign liquor all categories of licence and licences for denatured spirit) Order, 2000 dated February 4, 2000 restriction was imposed for grant of licence to the existing excise licence holder, Under 5.2(a) an applicant holding other excise licence is not entitled to apply for excise licence at new sites.
9. This Control Order came up for consideration before the Apex Court in the case of State of West Bengal v. Madan Mohan Ghosh and Ors., reported in 2002 Vol-IX, Supreme Court Cases, Page-177.
10. In the said case before the Apex Court Ganja and opium licence holders were given excise licence to sell Ram and Beer with a view to rehabilitating those persons as those items being Ganja, Bhang etc. came to be prohibited under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court came to a conclusion that the Government Order of 2000 was not an executive instruction and was issued by virtue of the power conferred under the State under Sections 85 and 86 of the Bengal Excise Act, The Supreme Court observed that the existing licence holders for Ganja and/or other banned intoxicants were not entitled to have further excise licence at the new site because of the power stipulated in the Control Order of 2000. However, taking into account of the act that those intoxicants were prohibited under the Bengal Excise Act and the existing licence holders need to be rehabilitated, the Apex Court gave them opportunity to surrender their existing licence for being considered for grant of new licence for sale of foreign liquor at the new site.
11. Relying on the said judgment of the Apex Court Mr. A. C. Kar, learned counsel appearing for the appellants contended that the said Government Order of 2000 had a statutory force as held by the Apex Court and as such the State is not entitled to grant supplementary licence to those pachwai licence holders for country spirit unless and until they surrender licence of pachwai as had been done before the Apex Court.
12. We have considered the relevant rules as discussed hereinbefore as well as the decision of the Apex Court in the case of Madan Mohan Ghosh (supra). Under the Bengal Excise Act the State is empowered to regulate sale and distribution of intoxicants throughout the State. Under the Bengal Excise Act and the Rules framed thereunder there are two types of licences being licence at the new site and supplementary licence. Under the 1993 Rules as well as under 2003 Rules the State is empowered to grant licence at the new site as well as supplementary licence to the existing licence holders. The Apex Court did not consider the authority of the State with regard to grant of supplementary licence as that was not the point in issue before the Apex Court in the case of Madan Mohan Ghosh (supra). The case before the Apex Court was that the existing licence holders applied for licence at the new site which according to the Apex Court was prohibited by the Government Order of 2000 which has its statutory force. Hence, the Apex Court held that the Ganja licence holders were not entitled to have a licence at the new site because of the bar stipulated in the 2000 Control Order. However, considering the facts and circumstances in the said case the Apex Court made a concession for Ganja licence holders by granting them liberty to have excise licence at the new site upon surrendering the existing licence. Such procedure has no application in the instant case. Had those Ganja licence holders applied for supplementary licence at their existing site there was no difficulty for the State to grant supplementary licence to them under Rule 15(3). In the instant case the State Government gave supplementary licence to the existing pachwai licence holders under Rule 15(2) of the 1993 Rules that is para materia with Rule 15 of the 2003 Rules. Similarly, the appellants having existing licence for country spirit are also entitled to have licence for foreign liquors under Rule 15(1). We asked Mr. Kar whether the appellants want to be considered for supplementary licence for sale of foreign liquor and/or beer. On instruction Mr. Kar submitted that appellants are not interested to have any such licence. In our view, the Control Order of 2000 relates to a restriction imposed for grant of licence at the new site. Such restriction was upheld by the Apex Court in the case of Madan Mohan Ghosh (supra). Rule 15 of the 1993 Rules or the 2003 Rules never came up for consideration in the said case before the Apex Court. Hence, the Apex Court decision on that score, in our view, has no application in the instant case.
13. The learned Advocate General appearing for the State contended before us that the State considered the fact the sale of pachwai is no more lucrative and as such pachwai licence holders were given licence to sell country spirit. Similarly, the country spirit holders were also offered supplementary licence for sale of foreign liquor. This supplementary licences are in addition to the existing licence and on the same terms and conditions including sale at the existing site only. Rule 15(2) is holding the field since 1993, when the country spirit was added by way of amendment in 2000 the writ petitioners being the appellants herein approached this Court. We have considered the submissions of the appellants as well as the decision of the learned Judge that had considered in detail the submission of the appellants. We are of the view that the learned Judge had correctly approached the problem and the decision to dismiss the writ petition appears to us as accurate.
14. In the result, appeal fails and is hereby dismissed. There would be however no order as to costs.
15. We once again make it clear that the appellants were and are still entitled to apply for foreign liquor licence under Rule 15(1) of the 1993 Rules or Rule 15 of the 2003 Rules, as the case may be. As and when the appellants apply for supplementary licence for sale of foreign liquor the State Government would immediately consider the same sympathetically and with utmost expedition dispose of their application in accordance with law.
16. Urgent xerox certified copy will be given to the parties, if applied for.
Ashok Kumar Mathur, C.J.
I agree.