JUDGMENT
Bhaskar Bhattacharya, J.
1. Both these mandamus-appeals were heard analogously as common questions are involved in these appeals. The subject-matter of these appeals is the order passed by a learned Single Judge dated 12thApril, 2006 by which His Lordship disposed of the. two writ – applications by which the order dated 15thDecember, 2004 passed by the Principal Secretary, Excise Department, Government of West Bengal was challenged.
2. The grant of exclusive privilege-area of manufacture and sale of the country-liquor as provided in Section 22 of the Bengal Excise Act, 1909 was the dispute involved before the Principal Secretary. According to said provision, the State Government may grant to any person on such condition and for such period, as it may think fit, the exclusive privilege –
(a) of manufacturing, or supplying by wholesale, or
(b) of manufacturing, and supplying by wholesale, or
(c) of selling, by wholesale or retail, or
(d) of manufacturing or supplying by wholesale and selling retail, or
(e) of manufacturing and supplying by wholesale and selling retail,
any country-liquor or intoxicating drug within any specified local area.
3. It is further provided that a public-notice should be given of the intention to grant any such exclusive privilege and that any objection made by any person, residing within the area affected, shall be considered before any exclusive privilege is granted. The said Section further provides that no grantee of any such privilege should exercise the same unless or until he has received a license in that behalf from the Collector or the Excise Commissioner.
4. The appellants and the private respondents before us are all carrying on business of bottling and sale by wholesale of the country-spirit in sealed and capsule-bottles in the State of West Bengal.
5. When a new country-spirit bottling-plant at Sainthia, District -Birbhum, was about to start functioning, the Government, of West Bengal decided to reallocate the area of exclusive privilege for bottling and sale by wholesale of the country-spirit and accordingly, a notification dated 29thJanuary, 2002 was issued.
6. By reason of the aforesaid notification dated 29thJanuary, 2002, there was a change in the extent of privilege-area of the different wholesalers throughout the West Bengal.
7. Before the said notification could be given effect to, some of the owners of the retail-shops filed two writ-applications, being W.P. No. 2443 of 2002 and W.P.No. 2444 of 2002, inter alia,challenging the rellocation made under the said notification. During the pendency of the aforesaid two writ-applications, one Bhattacharya Bottling Plant Private Ltd., the respondent No. 8 in the present appeal, filed another writ-application being W.P. No. 1531 of 2003 who also disputed the reallocation of the exclusive privilege-area and the subsequent notification made therein.
8. All the aforesaid three writ-applications were heard analogously and were disposed of by P.C. Ghose, J. by a common judgment dated 17thSeptember, 2004 by which His Lordship directed the Principal Secretary, Excise Department, Government of West Bengal, the respondent No. 4 herein, to dispose of the grievances of all the petitioners as well as the other parties of the writ-petitions after giving them a chance of hearing.
9. Pursuant to the aforesaid order, the matter was taken up by the Principal Secretary, the respondent No. 4, before whom all the parties submitted their respective objections and views with regard to the proposed reallocation of the exclusive privilege-area.
10. As indicated earlier, the Principal Secretary, the respondent No. 4, after hearing the parties, by the order dated 15thDecember, 2004 disposed of the representations filed by the various parties in terms of the order dated 17thSeptember, 2004 passed by P.C. Ghose, J. by which the entire areas in the State of West Bengal were allotted to different parties as exclusive privilege-zone.
11. Being dissatisfied, three different writ-applications were filed by the three different parties and out of them, two are the appellants before us and as indicated earlier, the learned Single Judge disposed of those two writ-applications by virtually not interfering with the order passed by the Principal Secretary.
12. It may not be out of place to mention here that one of the respondents before us, namely, M/S Sarojit Kumar Dey Bottling Plant, has filed a separate writ-application which is still pending before a learned Single Judge and the said M/S Sarojit Kumar Dey has been made a respondent before us who is represented by Mr Arunava Ghosh, the learned advocate. He also made his submission on the merit of the order of the Principal Secretary, which is the subject-matter of these appeals as well as the writ-application filed by his client.
13. Before we proceed further, it may be mentioned here that by the order dated 15thDecember, 2004, the Principal Secretary, Excise Department, has after hearing the parties pursuant to the order passed by P.C. Ghose, J. fixed the following guidelines for the purpose of redressal of the grievances of the bottling-plants as well as the retail-vendors as far as practicable:
a) The retail country spirit shops should be tagged with the nearest country spirit warehouse as far as practicable;
b) The curtailment of exclusive privilege areas after the new bottling plant at Medinipur conveniences production shall be shared by IFB which had been supplying in the whole of Medinipur (West) district and also some of the existing bottling plants in South Bengal operating in the vicinity of Medinipur (West) district;
c) The exclusive privilege area of M/s. Sajorit Kr. Dey Bottling plant shall be so fixed up that it does not exceed its installed capacity/licensed capacity;
d) The exclusive privilege areas to be granted to the new bottling plant at Medinipure shall not be more that it’s installed capacity/licensed capacity;
e) It has come to my notice that on several occasions M/s. Farrini 11 up has failed to meet the demands of its tagged retail vendors to the detriment of the interest of Government revenue. This must not be allowed to happen. The exclusive privilege area must be fixed up in such a way that the bottling plants are able to fulfil the projected requirements. Much emphasis is required to be given on this aspect while redefining the exclusiae privilege areas.
14. After laying down the aforesaid guidelines, the Principal Secretary, Excise Department, further observed that as he was then acting also as the Excise Commissioner, West Bengal, it would not be prudent to advise the Excise Commissioner to draft an order reallocating the exclusive privilege-area keeping the above principle in mind and accordingly, as Excise Commissioner, he himself prepared a new scheme of reallocation of privilege-areas in respect of South Bengal and in his capacity as Principal Secretary, Excise Department, he annexed that scheme to the order as annexure. He further held that exclusive privilege-area will form a part of the said order in terms of the earlier order passed by P.C. Ghose, J. and also in terms of Section 22(1) of the Bengal Excise Act, 1909. He further observed that for the first six months of the operation, Himadri Khan Bottling Plant had been allotted only 50 percent of its licensed capacity and after six months or longer period, depending on its performance, the said Plaint would get some more areas so that it might supply according to the full licensed capacity. The Principal Secretary further noted that while allocating or reallocating areas the consumption-figures of the country-spirit for 2002-03 had been taken into consideration.
15. The annexure to the aforesaid order shows the allocation of different parties of exclusive privilege-area in details as mentioned below:
SI No. Name of Grantee Areas of supply of Remarks
Country Spirit
1 Sarojit Kumar Dey Country i) Whole of Birbhum District
Spirit Bottling Plant cum excluding country spirit
warehouse at Sainthia, shops and supplementary country
District Birbhum. spirit shops at Police Station
Kankartala, Dubrajpur, Khayrasole
and Sadalpur.
ii) Whole of Murshidabad District
excluding country spirit shops
and supplementary country spirit
shops at Sadar, Beldanga and
Lalbagh Excise Circles.
2. Bhattacharyya Country i) In North 24 Pgs. The
Spirit Plant (Pvt) Ltd. Jurisdiction of thefollowing
A) Plant at Baranagar, police stationsBaranagar,
North 24 Parganas District Belghoria, Rajarhat, Dum
Dum, Salt Lake, Lake Town,
Airport, Nimta and Khardah
excluding T.T. Road C.S. Shop
at Khardah P.S.
ii) Tagged vendors of
Diamond HarbourWarehouse in
South 24Pgs. District in the
area of Police Stations of
Usthi, Falta. Bishnupur,
Magrahat, Mandirbazar, Diamond
Harbour, Joynagar, Raidighi,
Mathurapur, Namkhana,
Kakdwip, Sagar, Kulpi.
B. Plant at Dankuni i) In Murshidabad District
Hooghly District within the jurisdiction of
excise Circles Sadar,
Beldanga and Lalbagh.
ii) Whole of Nadia District.
iii) In Hooghly District
Supplies through Urdibazar
warehouse to the country
spirit shops within the
jurisdiction of police station
Chinsurah (excluding Bandel C.S.
Shop Merchant C.S. shop of P.S.
Chinsurah Police Station
Rajarhat C.S. Shop of
P.S. Polba) Chandannagar,
Bhadreswar as well as Nalikul C.S.
Shop only at Haripal P.S.Tarakeswar
C.S. Shop at Tarakeswar P.S
3. M/s. Asansol Bottling & i) Burdwan West Area
Packaging Co. Ltd. District excluding Durgapur
Asansol, Burdwan Sub-Division
ii) District of Bankura.
4. M/s. Eastern Distilleries i) In Kolkata Excise
& Chemicals Ltd., Kolkata District C.S. Shops
within the jurisdiction
of P.S. of Metiabruz
South Port, Ekbalpore,
Watgunj, Hastings, Alipore,
New Alipore, Lake, Jorasanko
(Country spirit shop at 10,
Balrnukunda Makar Road only)
Bowbazar Hare Street.
Narkeldanaga (except
country spirit
shop at 18/2, Canal
West Road) Phulbngan and
Beliaghata and 6/1/F,
A.J.C. Bose Road, 170A,
Baithakkhana Road, 13A,
Shibtala Lane and country
spirit shop at 2/3, Bibi
Bagan Lane,P.S. Entally.
ii) In South 24 Pgs.
District within the
jurisdiction of Police
Stations of Behala,
Thakurpukur, Kasba, Regent
Park, Tiljala, Jadavpur,
Bhangore, Basanti, Canning,
Natunbazar, Charial C.S.
shop of Budge Budge P.S.
Rajpur Shop of Nodakhali
P.S. Nungi and Jagtola
C.S. Shops of Maheshtala
P.S. Baruipur C.S. shop of
Baruipur P.S. Rajpur C.S.
shop of Sonarpur P.S. Maheshtala
C.S. Shop and Mainagar C.S. shop
of Maheshtala P.S.
iii) Within the jurisdiction of
P.S. of Howrah GRPS Howrah
(excluding C.S. Shops at.
6/1, G.T. Road and 543,
G.T. Road), Shibpur, Bantra,
Liluah,Bally (C.S. shop only
at G.T. Road), Bauria, Amta
(excluding Fatehpur C.S. shop)
Udaynarayanpur and Shampur
(C.S. shop only at Barogachia)
and including Bally Durgapur C.S.
Shop P.S.
5. M/s. Farinni Eleven i) In Purba Medinipur District:
Up, Kolkata Tamluk Sub-Division, the
jurisdiction of P.S. Daspur
in Ghatal Sub- Division (Paschim
Medinipur) and Contai Sub-Division.
ii) In Howrah District within the
jurisdiction of P.S. Uluberia,
Bagnan, Shyampur (excluding
C.S. Shop at Baragachia)and
Amta (Fatehpur C.S. shop only),
Golabari P.S. C.S. shop at 543,
G.T. Road (South) and 6/1,
G.T. Raod (South) of Howrah
P.S. and C.S. shop at 50/1,
Girish Ghosh road of Bally P.S.
iii) In Kolkata Excise Districts
within the jurisdiction of P.S.
of Bhagwanpore, Gariahat, Taltola
(C.S. shop at 3, Rani Rasmoni Road only),
Jorasanko (C.S. Shop No. 282,
Rabindra Sarani only),
Metiabruz and Muchipara
(C.S. shop at 172, B.B.
Ganguly Street, 5/2, Wellesley
Street of P.S. Taltola) and
excluding C.S. shop at 2/3,
Bibi Bagan Lane of P.S. Entally.
6. M/s. Himalayan Endeavour
Pvt. Ltd.
A) Bottling plant at i) Whole of Darjeeling District
Siliguri ii) In CoochbeharDistrict within
the jurisdiction of Police
Station Haldibari only.
(iii) In Uttar Dinajpur District:
Islampur Sub-Division only.
iv) In Jalpaiguri District,
within the jurisdiction of
Police Station Bhaktinagar
and C.S. shops only at
Turibari, Washabari, Odalabri
within the jurisdiction of
Police Station Malbazar.
B) Bottling plant at Malda i) Whole of Malda District
ii) Whole of Dakshin Dinajpur District,
iii) Raiganj Sub-Division of Uttar
Dinajpur District.
7. M/s. Monalisa Bottling i) In Jalpaiguri District
Industries Pvt. Ltd. the jurisdiction of Police
Jalpaiguri Station KotwaJi, Rajganj,
Alipurduar, Birpara, Falakata,
Kalendi (excluding C.S. shop at
Hamiltaganj), Nainaguri (only C.S.
shop at Maat Telipara & Goyerkata only)
ii) Whole of Coochbehar District
excluding C.S. shop at P.S. Haldibar
iiii) Country Spirit in labelled and
capsuled bottles to the vendors
attached to Luksan
Warehouse.
8. M/s. IFB Agro Industries
Ltd. Durgapur, Burdwan
West Area
A) For the first six months i) In Burdwan West AreaDistrict
or longer period of this Durgapur Sub-Division
order, depending on the ii) Whole of Purulia District
performance of the iii) whole of Burdwan East are District.
Himadri Khan Bottling (iv) In Birbhum District: within
plant the jurisdiction of Police
Stations Kotwali, Jamboni,
Beliabara, Salboni, Daspur,
Keshpur, Datan and Narayangarh.
B) Area of months of i) In Burdwan West Area
period of this depending District, Durgapur Sub-Division
on the performance ii) Whole of Purulia District
Himadri Bottling Plant iii) Whole of Burdwan East
Area District,
iv) In Birbhum District:
within the jurisdiction of
Police Stations Kankartala,
Dubrajpur, Khayarasole and
Sadalpur.
9. M/s. Prakash Distillery In Jalpaiguri District
& Chemical Co. Pvt. Ltd. within the jurisdiction of
Darjeeling Police Station for the supply
of bulk country spirit; Kalchini
(C.S. Shop at Harniltaganj only),
Dhupguri, Banarhat (excluding C.S.
shops at Gayerkata and Telipara),
Nagrakata, Matelli, Malbazar
(excluding C.S. shops at Tiribari,
Washabari and Odlahari), Mainaguri
(excluding C.S. Shop at Mainaguri)
and Dalsinpara C.S. shop
at P.S. Jalvaon.
10. M/s. Sengupta & Sengupta Entire North 24-Pgs. Excluding
Pvt. Ltd. North 24-Pgs. the jurisdiction of P.S.
Baranagar, Belghoria, Rajarhat,
Dum Dum, Salt Lake, Lake Town,
Airport, Nimta and Sodepur C.S.
shop, Panihati C.S. shop Mollarhat
C.S. shop and Khardah C.S. shop
of Khardah P.S. except T.T.
Road C.S. shop of Khardah P.S.
11. M/s. IFB Agro Industries i) In Hooghly District: within
Ltd. 61, K.M. Bhattacharyya the jurisdiction of P.S. of
Street, Serampore, Hooghly Serampore, Uttarpara, Chanditala,
Dankuni, Haripal (C.S. shop only
at Haripal) Singur, and Jangipara.
ii) Arambagh Sub- Division of Hooghly
District and the jurisdiction of
PoliceStations of Dhaniakhali, Dadpur,
Mogra (except C.S. shops at
Bansberia, Tribeni, Mogra and
Mithapukur), Balagarhand Pandua.
iii) Bandel Warehouse the C.S. shops within
the jurisdiction of Police Stations
of Dhaniakhali, Dadpur, Mogrn,
Balagarh, Pandua and including
Bandel C.S. shop Mirerhat C.S.
shop of P.S. Chinsurah, Rajhat
C.S. shop of P.S. Pollat.
12. M/s. Vares International Within the jurisdiction of
Pvt. Ltd. Kolkata P.S. Chitpore, Cossipore,
Jorabagan, Burrabazar, Burtala,
Ultadanga, and North Port and
C.S. shops at 3, Crematorium Road
18/2, Canal West Road.
13. Himadri C.S. Bottling
plant cum Warehouse at
Medinipur
A) For the first six months In Paschim Medinipur District:
no longer period of this Within the jurisdiction of Police
order, depending on the Stations Kharagpur Town, Kharagpur
performance of the plant Local, Nayagram, Belda, Keshiary,
Mohanpur, Pingla, Sabong, Debra,
Gopiballavpur, Sankrail, Jhargram
and Binpur
B) After six months or Whole of Paschim Medinipur
longer period of this District excluding the
order, depending on the jurisdiction of P.S. Daspur.
performance of theplant
16. As indicated earlier, being dissatisfied, three different writ-applications were filed by three different parties and two of those were disposed of by a learned Single Judge of this Court which arc the subject-matters of these two mandamus-appeals and another writ-application at the instance of M/S Sarojit Kumar Dey Bottling Plant, is still pending before a learned Single Judge but we have also heard M/S Sarojit Kumar Dey Bottling Plant being one of the respondents here on merit as regards the legality of the order passed by the Principal Secretary in these appeals.
17. We have already indicated that the learned Single Judge by the order impugned herein has come to the conclusion that the Principal Secretary by the said order has tried to adjust the equities between the parties and there is nothing to suggest that there was any mala fideintention in discharging his duties. His Lordship further opined that the adjustment could not be made with mathematical accuracy. According to His Lord ship, IFG Agro Industries Ltd. was previously supplying large quantity of the liquor to the District of Medinipur and at that point of time, there was no manufacturing unit in the said district and in consequence of establishment of a new manufacturing unit in the district of Medinipur, the supply of the said writ-petitioner was bound to diminish. His Lordship, however, finally concluded by holding that the respondent No. 4 should review the situation as and when permissible under the law and should try to make further equitable adjustment, if possible.
18. Being dissatisfied, these two mandamus-appeals have been preferred; the first one is by IFB Agro Industries Ltd., the second one by M/s. Sengupta & Sengupta Private Ltd.
19. Mr Anindya Mitra assisted by Mr Pratap Chatterjee, Mr Ajay Krishna Chatterjee and Mr Soumen Sen, the learned Counsel appearing on behalf of the IFB Agro Industries Ltd. has severely criticised not only the order passed by the Principal Secretary, Excise Department but also the order passed by the learned Single Judge. According to them, the order passed by the Principal Secretary was not in conformity with the order passed by P.C. Ghose, J. He points out that P.C. Ghose, J. directed the Principal Secretary to pass a reasoned order after giving opportunity of hearing, but according to them, the order passed by the Principal Secretary does not disclose any reason. According to the learned Counsel, although that fact itself was a ground for settling aside the order passed by the Principal Secretary, the learned Single Judge did not interfere with such order. Mr Mitra further contends that the order passed by the Principal Secretary has two parts; the first part discloses the principles which he proposed to follow and the second part was the order implementing the principles mentioned in the first part which he has passed as the Excise Commissioner. According to Mr Mitra, the annexure dealing with allocation was not even in conformity with the principles allegedly adopted by him. Secondly, he contends that after arriving at the principles which he proposed to follow, it was his duty to give direction to the ministerial-staff for reallocation in accordance with those principles and at the time of reallocation, the concerned officer should have given further opportunities to the parties to make submissions regarding actual allotment.
20. Lastly, Mr Mitra contends that the allocation of the exclusive privilege-area has been made in a partial manner by favouring the Eastern India Distillery Company, a Government Company and also the Bhattacharya Bottling Plant Private Limited, one of the respondents. Mr Mitra points out that by virtue of re-allotment of the privilege-area, his client has been deprived of the entire Medinipur district but has not been re-compensated by allocating any new area. According to Mr Mitra, the allocation was arbitrary and was not expected from a “State” within the meaning of Article 12 of the Constitution of India and on that ground, the learned Single Judge ought to have set aside the order passed by the Principal Secretary as well as the allotment made by the Principal Secretary as the Excise Commissioner. He, thereforer prays for setting aside the order passed by the learned Single Judge as also the one passed by the Principal Secretary including the order of allocation.
21. Mr Soumen Bose, the learned senior advocate appearing on behalf of the Sengupta and Sengupta Private Limited has adopted the argument advanced by Mr Mitra and in addition to that, has strenuously contended that the order passed by the Principal Secretary should be set aside on the ground of bins. According to Mr Bose, the Principal Secretary, being the Chairman of Eastern India Distillery Company which is a Government-owned company, could not act as the authority to adjudicate the disputes involved herein as his own company is one of the parties to the proceeding claiming exclusive privilege over the major area.
22. Mr Bose further contends that in the present case, the Principal Secretary himself being the Excise Commissioner, his order passed on dual capacity was invalid. Mr Bose further contends that no material has been placed before Court showing that by virtue of the standing order issued by the concerned Minister, the Principal Secretary was invested with the power to decide this question as the Bengal Excise Act casts the duty of allocation of the privilege-area to the State Government and in the absence of any specific allocation of the business regarding fixation of such privilege-area cast upon the Principal Secretary, his order was without jurisdiction.
23. In support of such contention Mr Bose relies upon the following decisions in the case of-
(a) Gullapalli Nageswara Rao v. A.P. State Road Transport Corporation ;
(b) Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras ;
(c) Pratap Singh v. State of Punjab ;
(d) C.S. Rovvjee v. State of A.P. ;
(e) Moly and Anr. v. State of Kerala ;
(f) R.S. Nayak v. A. R. Antulay ;
(g) A.R. Antulay v. R.S. Nayak ;
(h) Central Bank of India Limited v. K.R. Meenakshisundaram ; and
(i) Mohon Koiri and Ors. v. State of West Bengal and Ors. reported in 78 CWN 583.
24. Mr Kar, the learned Counsel appearing on behalf of the State-respondent has vehemently opposed all the aforesaid contentions advanced by the learned Counsel for the appellants, According to Mr Kar, these writ-applications were not at all maintainable in view of the fact that the writ-petitioners had no legal right, not to speak of, any fundamental right to have any exclusive privilege-area according to their sweet will. Mr Kar submits that his client has every right to change the exclusive privilege-area for the purpose of increase of revenue and also in case of any subsequent installation of a plant in any part of the West Bengal. Apart from the aforesaid situations according to Mr Kar, if the existing allocation is found to be not so effective, even in such a case, his client has the right to change the present allocation. Therefore, by the order impugned herein no legal right of the writ-petitioner has been infringed.
25. Mr Kar by referring to the allocation of exclusive privilege-area points out that both the writ-petitioners are allotted areas near to their plant or warehouse and as such, there was no question of any arbitrariness in fixing the areas.
26. As regards the question of bias raised by Mr Basu, Mr Kar submits that the question of bias arises if the concerned officer had any personal interest or financial interest in the matter. Mr Kar points out that the Principal Secretary is the Ex-officioChairman of the Eastern India Distillery Company and all its Directors are appointed by the Governor of the State and therefore, he had no personal interest in the matter. All, that he was doing as the Chairman was in exercise of his official duty by virtue of holding the post of the Principal Secretary of the Excise Department. He submits that the Principal Secretary had no separate remuneration for acting as Chairman of the said Company. Therefore, in such a situation, the question of bias is immaterial. In this connection, Mr Kar relies upon the following decisions of the Supreme Court:
(a) Ugar Sugar Works Ltd. v. Delhi Administration and Ors. ;
(b) Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir. Ahmed and Ors. ;
(c) Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. .
27. Dr. Pal, the learned Counsel appearing on behalf of the Bhattacharya Bottling Plant Private Limited supported the contentions of Mr Kar and has relied upon the following decisions for the purpose of refuting the contention of Mr Bose as regards bias:
(a) G.N. Nayak v. Goa University and Ors.
(b) Tata Cellular v. Union of India ;
(c) Madan Lal and Ors. v. State of J & K and Ors. ;
(d) Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. ;
(e) Lachhman Dass and Anr. v. State of Punjab ;
(f) State of M.P. v. Ganekar Motghare reported in 1989 Suppl. (2) SCC 703;
(g) State of M.P. and Ors. v. Nandlal Jaiswal and Ors. .
28. Mr Swapan Kumar Dutta, the learned advocate appearing on behalf of the Eastern Distilleries and Chemicals Ltd. has adopted the submission of Mr Kar and has contended that his client has not been favoured in any way by the Principal Secretary and thus, the learned Single Judge rightly refused to interfere with the order passed by the Principal Secretary.
29. Mr Pranab Kumar Dutta, the learned advocate appearing on behalf of Himadri Khan has also supported the contention of Mr Kar and in addition to those, has relied upon the following decisions in supporting the order passed by the Principal Secretary as well as the learned Single Judge:
(a) Union of India and Ors. v. Vipan Kumar Jain and Ors. ;
(b) Ganga Bai Charities v. CIT ;
(c) Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. ;
(d) Sohan Lal Gupta and Ors. v. Smt. Asha Devi Gupta and Ors. ;
(e) Union of India v. R. Bhusal ;
(f) Kuldeep Singh v. Govt. of NCT of Delhi reported in 2006(5) SCC 702.
30. Mr Aurnava Ghosh, the learned advocate appearing on behalf of M/S Sarojit Kumar Dey Country Spirit Bottling Plant-cum-Warehouse although has to some extent supported Mr Kar on the question of bias and allotment, his grievance is that while making allotment of the exclusive privilege-area, the Principal Secretary has taken into consideration his client’s capacity to manufacture or the licensed capacity which he did not consider for the purpose of allotment of others. He further submits that his client has already filed a separate writ-application challenging the allotment of his client. He, therefore, prays for further allocation of exclusive privilege-area in favour of his client by addition of some other areas, which have been allotted to other allottees without taking into consideration the manufacturing capacity of his client when such criterion was not taken note of in case of allotment to the others. He, therefore, prays for setting aside the order passed by the Principal Secretary so far his client’s allotment was concerned and for extension of its privilege-area.
31. The first and the foremost question that arises for determination in these mandamus-appeals is whether the order passed by the Principal Secretary, Excise Department, Government of West Bengal should be set-aside on the ground of bias. There is no dispute that the Principal Secretary by virtue of his Office is also the Ex-officioChairman of the Eastern India Distillery Company, one of the applicants for allotment. According to the appellants, it is unthinkable that the Chairman of one of the applicants is vested with the authority to decide its allotment and consequently, he was really the judge of his own cause.
32. To appreciate the aforesaid contention, we must bear in mind that it is nobody’s case that the said Principal Secretary has any personal or financial interest in the matter. As he is holding the office of the Principal Secretary, Excise Department, he is also acting as the Chairman of the said Government Company by virtue of holding such position. For acting as the Chairman of the Eastern India Distillery Company, the Principal Secretary, Excise Department, Government of West Bengal does not get any extra remuneration.
33. In such a situation, in our view, merely because the said Principal Secretary took the actual decision of allotment on behalf of the State Government, such decision cannot be branded as a biased one.
34. Moreover, it appears from the order passed by P.C. Ghose, J. in the earlier three writ-applications that His Lordship directed the Principal Secretary to take decision in the matter and at that point of time, none of the appellants, though they were all parties to the proceedings, ever raised any objection and it appears from the order passed by His Lordship that they accepted such decision. Such being the position, after the decision has been arrived at on consideration of the materials on record, the appellants cannot impugn the decision as a biased one by filing a fresh writ-application.
35. At this stage, it may not be out of place to mention here that one of the appellants, namely, IFB Agro Industries Limited, although took the point of “bias” against the Principal Secretary in the writ-application, in the affidavit-in-reply, they took the specific stance that the appointment of the Principal Secretary by P.C. Ghose, J. cannot be disputed and the point of “bias” was not pressed before the learned Single Judge. The other appellant, namely, Sengupta & Sengupta Company, never took the plea of bias in their writ-application and for the first time before this Court, such a plea has been advanced by Mr Bose, appearing on their behalf. The question whether a person is biased against a party being basically a question of fact and at the most, a mixed question of law and fact in some exceptional cases, if a party after taking a specific plea of bias does not press such point before the Trial Judge, he is precluded from raising such plea before the Appellate Court. Similarly, a party who has not pleaded bias in the Trial Court should not be permitted to take such plea for the first time before Appellate Court. The position, however, would have been different if it was established or an admitted position that the Principal Secretary was personally or financially interested in the matter and in such a case, the question would have become an inference from established fact or admitted fact i.e. a question of law, and such question could be raised at any point of time and even though, abandoned before the Trial Court, as a litigant is not bound by the concession of his lawyer on a pure question of law.
36. If, however, the Principal Secretary was entrusted by a judicial order passed by High Court and the said order was consented to by the parties as is reflected from the order passed by His Lordship and those parties took part in the proceedings before the Principal Secretary without raising any objection, they should not be permitted to take such plea before us after taking a chance of a favourable decision in their favour. We, thus, find no substance in the allegation of ‘bias’ raised by Mr Bose.
37. The next question is whether the Principal Secretary has complied with the directions given by P.C. Ghose, J. by hearing the parties and passing a reasoned order.
38. Mr Anindya Mitra, the learned senior advocate appearing on behalf of the IFB Agro Industries Limited ardently contended before us that the Principal Secretary did not comply with the direction of P.C. Ghose, J. as his order was not a reasoned order. After going through the order passed by the Principal Secretary, we find that he has taken into consideration in details the respective contentions of the parties and thereafter formulated the principles which should be followed in the matter of allotment of exclusive privilege-area, In such a situation, we are not prepared to accept the contention of Mr Mitra that the order passed by the Principal Secretary was not a “reasoned order”.
39. Both the appellants have contended before us that in the matter of fixation of privilege-zone, the Principal Secretary has favoured the Bhattacharya Bottling Plant Private Limited and the Eastern India Distillery Company and in the process of re-allotment, the appellants have really suffered.
40. We have already indicated that the allocation of privilege-area is an ever-changeable process. Whenever a new bottling-plant is established in any part of the State of West Bengal, there must be change of allocation. In the case before us, due to installation of a new bottling-plant at Sainthia, initially, the decision was taken for new allotment of the exclusive privilege-area. For the purpose of accommodating the newly installed company, there must be curtailment of area allotted to the previous allottees and it depends upon the place of installation of the new plant. If a new plant is installed in a particular area, the whole sale-dealer who was previously allotted the said area or the area surrounded thereby are bound to suffer for the new installation of a bottling-plant in that area; whereas the other allottees, who have their plants situated far away from that area may not be at all affected. We have gone through the annexure to the order dated 15thDecember, 2004 and we find that the said allotment has been made strictly in accordance with the principles laid down by the Principal Secretary.
41. It is true that in the matter of this type of allocation, accuracy according to mathematical precision is not possible. All that we are required to see is whether the approach of the deciding authority, being a “State” within the meaning of Article 12 of the Constitution of India, was fair and reasonable and whether the said decision was tainted with malice.
42. It is a settled law that in order to label a decision as ‘tainted with malice’, the allegation of mala fideacts must be specifically pleaded so that the person against whom such accusation is made can answer the same. In the pleading of the parties, no such materials has been placed justifying any evil intention on the part of the deciding authority. In the absence of any such allegation in the pleading of Mr Bose’s client, we are not inclined to entertain the charge of mala fideintention against the Principal Secretary, Excise Department of the Government of West Bengal.
43. We further find substance in the contention of Mr Kar, the learned advocate appearing on behalf of the State-respondent, that in the matter of grant of licence of intoxicant, no citizen has any legai or fundamental right to have such licence as the same is a prohibited item as mentioned in Article 47 of the Constitution of India and in such a case, the Government can even claim monopoly in that business.
44. In the case before us, we find hat the Principal Secretary has taken a reasonable view by giving allotment to the different wholesalers keeping in mind the place of their bottiing-plant and the warehouses. Merely because in the process of allotment, the sufferance of the two appellants before us are more than that suffered by the others, that fact cannot be a ground of setting aside the order. They suffered because of the fact that prior to the present, allocation, they had the exclusive privilege-zone over the neighbouring area over which the new bottling-plants have been installed.
45. We also do not find any substance in the contention of Mr Mitra that the annexure to the order dated December 15, 2004 is not in conformity with the principles mentioned in the earlier part of the order. We are also not impressed by the submission of Mr Dose, the learned senior advocate appearing on behalf of one of the appellants that the Principal Secretary, Excise Department, being also the Excise Commissioner, could not pass the order in his dual capacity. It appears from the order dated 15thDecember, 2004 that the Principal Secretary was quite conscious of the fact that he was also acting as the Excise Commissioner and as such, after laying down the principles required to be followed as the Principal Secretary, he left it to be done by the Excise Commissioner and the said office, he himself was holding. We also do not find any substance in the contention of Mr Mitra that after laying down the principles of allotment, further opportunity ought to have been given to the parties before allotment of the actual area notwithstanding the fact that the parties were fully heard at length at that stage. At any rate, this is a purely technical objection and has not affected the decision on merit.
46. We also find substance in the contention of Mr Kar that this type of allotment is not a permanent one and if after such allotment, the State-respondent thinks that there should be some alteration for the purpose of enhancement of the State revenue or for the smooth running of the business by all those parties, it has the power of readjustment or modification of the exclusive privilege-zone and therefore, this Court sitting in the jurisdiction under Article 226 of the Constitution of India should not interfere with the discretion exercised by the appropriate authority unless gross irregularity is shown in the process of selection or want of good faith on the part of the decidingauthority has been established.
47. Mr Bose, the learned senior advocate appearing on behalf of one of the appellants, as a last resort, fervently contended that unless it is shown that the Principal Secretary is authorised by the concerned Minister to act in terms of the Statute, his action should be held to be a nullity and on that ground alone, the order impugned is liable to be set aside.
48. Mr Kar in this connection has placed before us the Rules of business of the Government of West Bengal issued under Article 166(3) of the Constitution of India and points put the Principal Secretary is the appropriate person to decide the disputes involved herein. Moreover, we find that in this case, P.C. Ghose, J. while disposing of three writ-applications, where all the parties before us were also parties, gave such direction to the Principal Secretary and the said decision has attained finality. Therefore, without preferring any appeal against the order of P.C. Ghose, J. and after participating in the process, the appellants now cannot take this plea before us. Moreover, the appellants have nowhere alleged that the Principal Secretary is not the appropriate authority to decide the point on behalf of the State nor have the appellants pointed out who the said authority is. We, thus, find no merit in such submission.
49. We have already pointed out that a separate writ-application is pending at the instance of M/S Sarojit Kumar Dey but the said writ-petitioner is also figuring as one of the respondents in these mandamus-appeals and was represented by Mr Arunava Ghosh, the learned advocate and we have given him the opportunity to make full-fledged argument on behalf of his client as if we were hearing the writ-application field by the said respondent. Mr Ghosh has challenged the order passed by the Principal Secretary on the ground that while making allotment to his client, its manufacturing capacity or licensed capacity was taken into consideration whereas in the matter of allotment of others such was not a deciding factor. This, Mr Ghosh argues, is a discrimination affecting Article 14 of the Constitution of India. We have, however, found that while allotting the privilege-area to Mr Ghosh’s client, its manufacturing capacity has, no doubt, been considered, but similar consideration has also been taken note of while allotting the privilege-area to the Himadri Bottling Plant, a new one in the field established in Midnapore. Therefore, we do not find any substance in the contention of Mr Ghosh that there has been a discrimination against his client in the matter of allotment of the exclusive privilege-area. At this stage, it will not be out of place to refer to the following observations of the Principal Secretary, while laying down the guidelines for allocation:
It has come to my notice that on several occasions M/s. Farrini 11 up has failed to meet the demands of its tagged retail vendors to the detriment of the interest of Government revenue. This must not be allowed to happen. The exclusive privilege area must be fixed up in such a way that the bottling plants are able to fulfil the projected requirements. Much emphasis is required to be given or, this aspect while redefining the exclusive privilege areas.
50. We, thus, find no substance in the aforesaid contention of Mr Ghosh.
51. We now propose to deal with the decisions cited by the learned Counsel for the appellants.
52. In the case of Gullapalli Nageswara Rao (supra), the Supreme Court reiterated the well-settled fundamental principle of natural justice that in the case of quasi-judicial proceedings, the authority empowered to decide the dispute between the opposing parties must be one without bias towards one side or the other in the dispute. According to the Supreme Court, it is also a matter of fundamental importance that a person, interested in one party or the other, should not, even formally, take part in the proceedings though in fact he does not influence the mind of the person who finally decided the case. The Supreme Court further reiterated that the justice should not only be done but should manifestly and undoubtedly be seen to be done.
53. In the said case, it was argued that the concerned Act and the Rules framed thereunder imposed a duty on the State Government to give personal hearing and the procedure prescribed by the rules imposed a duty on the Secretary of the department to hear and the Chief Minister to decide. It was contended that the said divided responsibility was destructive of the concept of judicial hearing and such a procedure defeated the object of personal hearing. It was contended that the personal hearing enables the authority concern to watch the demeanour of the witnesses and clear up his doubts during the course of argument and the parties get an opportunity to persuade the authority by reasoned argument to accept his points of view; if, on the other hand, one person hears and another decides, then personal hearing becomes an empty formality. The Supreme Court accepted the aforesaid contention and held that the said procedure followed in the said case also offended the basic principle of judicial procedure.
54. In our view, the said decision cannot have any application to the facts of the present case for the simple reason that in the case before us, in the past, all the parties suggested before P.C. Ghose, J. that the disputes involved herein should be resolved by the Principal Secretary on behalf of the State Government and such decision was accepted by His Lordship. Even, against the decision of P.C. Ghose, J., no appeal was preferred; therefore, the decision attained finality and it was incumbent upon the Principal Secretary, Excise Department, to resolve the disputes pursuant to the direction given by His Lordship. We have already pointed out that the Principal Secretary had no personal or financial interest in the matter, although he was Ex-officioChairman of one of the participants in the disputes. Therefore, the said decision cannot have any application to the facts of the present case.
55. In the case of Sri Subramania Desika Gnanasambanda Pandarasannidi (supra), the Supreme Court held that a plea not raised in the petition or in the affidavit in its support but specifically taken up in the affidavit-in-rejoinder can be agitated at the time of hearing because by virtue of the subsequent discloser in the affidavit-in-reply, the respondent had full notice of the points and that was sufficient compliance of the formalities required to be followed and the High Court, in that case, erred in law in rejecting the writ-application on the ground that the plea was raised for the first time at the time of argument. By relying upon the aforesaid decision, Mr Bose tried to contend before us that although the plea of bias was not taken in the writ-application filed by his client, on the aforesaid technical ground, the plea of bias should not be rejected. In the said case before the Supreme Court, plea was specifically taken in affidavit-in-reply and that is why the Supreme Court did not approve the order of the High Court, which rejected the writ-application on the ground of want of specific plea in the pleading. In the case before us, there is no plea at all taken either in the writ-application or in the affidavit-in-reply about bias. Moreover, even before the officer concerned, such question was not raised and the writ-petitioner was taking chance if favourable order was passed in his favour; but when order was passed and that was not favourable, he decided to take the plea of bias, which is not permissible. Moreover, we have also held on merit that the Principal Secretary, Excise Department having no personal or financial interest in the matter was competent to decide the dispute. We, thus, find that the said decision cannot help Mr Bose’s client in any way.
56. In the case of Pratap Singh v. State of Punjab (supra), the Supreme Court held that where some allegation as made in the petition and the affidavit with respect to matter concerning certain person is not accepted by the respondent, it is improper or irregular for the respondent, not to have secured affidavit from such person denying the allegation and such affidavit ought to have been filed in Court. It was further held that the applicant is to make definite and specific statement in his petition and if he makes definite allegation, it is for the other party or person concerned to deny. They can, however, according to the Supreme Court, take advantage of vagueness of the applicant’s own allegation and their reticence in that regard cannot give advantage to the applicant when he himself is in default in not making definite allegation. We fail to appreciate how the said decision can be of any help to Mr Bose’s client in any way. There is no allegation of bias against the Principal Secretary and, thus, it cannot be complained before us that it was the duty of the Principal Secretary to give reply to such allegation by affirming affidavit. We, thus, find that the said decision is of no help to Mr Bose’s client.
57. In the case of C.S. Rowjee v. State of A.P. (supra), while challenging the validity of the scheme under Chapter VI-A. of the Motor Vehicles Act, allegation of mala fideand personal ill will was made against the Chief Minister of the State and the writ-petitioners, in detail, stated those facts in their affidavit. No affidavit-in-reply came from the Chief Minister and in such circumstances, the Supreme Court rejected the affidavit by the Secretary and it was held that the allegation against the Chief Minister went un-rebutted. By relying upon the said decision, Mr Bose tried to convince us that it was the duty of the Principal Secretary to affirm affidavit denying the allegation of bias. We have already pointed out that in the writ-application filed by Mr Bose’s client there is no trace of any allegation of bias and as such, the Principal Secretary had no occasion to answer such question. Similarly, in the other appeal filed by Mr Mitra’s client, although the allegation of bias was given, that was not pressed before the learned Single Judge, as it appeared from affidavit-in-reply. Moreover, we have already pointed out that no material has been placed indicating any personal or financial interest of the Principal Secretary, Excise Department, in the Government Company, one of the claimants of which he is the Ex-officio Chairman. Therefore, the said decision in the case of C.S. Rowjee (supra) cannot help Mr Bose’s client in any way.
58. By relying upon the case of R.S. Nayak v. A.R. Antulay (supra), Mr Bose tried to convince us that as the Chief Minister of a premier State of the country was an accused in the said case, the Supreme Court to repeal the doubt of bias had withdrawn the case with a request to the Chief Justice of High Court to assign the same to a sitting Judge of High Court violating the norms of Criminal trial and as such, we should seriously consider the plea of bias. We fail to understand how the said illustration can have any relevance in the case before us. Mr Bose, in this connection, referred to the subsequent case of A.R. Antulay v. R.S. Nayak (supra), which came up for hearing before the Supreme Court four years thereafter and pointed out that the Supreme Court did not hesitate to interfere with its earlier decision when it found that the said decision was patently wrong. By relying upon the said decision, Mr Bose tried to persuade us that notwithstanding the decision of P.C. Ghosh, J., which has attained finality, we can ignore the said decision if we find that His Lordship overlooked the possibility of bias. In our opinion, the submission of Mr Bose is not tenable for the simple reason, that in the case A.R. Antuley (supra), the earlier decision was challenged by filing a writ-application under Article 32 of the Constitution before the Larger Bench of the same Court alleging violation of fundamental right and the Supreme Court upheld such contention. In the case before us, we are called upon to decide whether the learned Single Judge, in a subsequent writ-application, could sit over the appeal against the order of P.C. Ghosh, J. passed in an earlier writ-application and our view is that His Lordship could not consider the legality of the order passed in the earlier writ-applications passed by another learned Judge in a co-ordinate jurisdiction.
59. In the case of Mohon Koiri and Ors. v. State of West Bengal and Ors. (Supra), a notification under Section 4 of the Land Acquisition Act was issued and signed by the Deputy Secretary wherein it was stated that the Government was satisfied that a piece of land was needed for public purpose and by a notification issued thereafter under Section 6 of the said Act, it was declared that the Government was satisfied that the said piece of land was required for a public purpose to be acquired partly at public expenses and partly at the expenses of Kidderpore Academy. Both those notifications were issued and signed by the Deputy Secretary of the concerned department of the then Government of West Bengal without reference to the Minister concerned. In terms of the Standing Order No. 5, issued by the Minister-in-charge of the Land and Land Reforms Revenue Department under Rules 19 and 20 of the Rules of Business framed under Article 166 of the Constitution of India, the Secretary of the Department, Land and Land Revenue by a general order authorised the Deputy Secretaries to approve the notifications and declarations to be published in the official Gazette matters in their charge subject to reference of the higher authorities in matters considered by them to be of such importance as to require such reference. Under the said authority, the Secretary of the Department of Land and Land Revenue by a general order authorised the Deputy Secretary to approve the notification and the declaration to be published in the official gazette in respect of matters in their charges subject to the reference to higher authorities. The abovementioned notification was challenged as illegal on the ground (1) that the Kidderpore Academy being a private institution, the expansion and development of the same was not a public purpose and (2) that the notification having been issued by a Deputy Secretary, there was no satisfaction of the Government and that general order authorising the Deputy Secretary to issue notification was ultra viresStanding Order No. 5 made by the Minister. In such a case, it was held that if the opinion was formed by a responsible officer of the Government duly authorised under the Rules, and as such, his satisfaction would amount to the satisfaction of the Governor as required under the law, unless the matter is one requiring his personal satisfaction and unless it is established that the order passed in pursuance of such satisfaction is in excess of power under the Rules or otherwise mala fideor in exercise of power for collateral purpose. It was further held that the general order passed by the Secretary delegating authority to the Deputy Secretary had sanction of the Minister-in-charge, inasmuch as, it was based under the authority of Standing Order No. 5 under the Rules of Business. By relying upon the said decision, Mr Bose wants to contend before us that in the case before us there is no material showing that the Secretary was really authorised by the Minister to adjudicate the dispute involved herein. We are afraid we are not at all impressed by such submission. As the Principal Secretary is authorised by the standing order being the head of the department, his authority cannot be doubted unless the writ-petitioner placed material showing that the Principal Secretary was not authorised. Without making any specific allegation as regards want of authority of the Principal Secretary to decide the dispute and without pointing out who actually the appropriate authority is, the appellant cannot be permitted to raise such speculative question by way of roving enquiry. Moreover, this question is immaterial in the present case, as the decision has been taken pursuant to the concluded order passed by the High Court in exercise of writ-jurisdiction where State Government was a party. Therefore, the decision arrived at by the Principal Secretary must be held to be the decision of the State Government. We, thus, find no substance in the aforesaid contention of Mr Bose.
60. In the case of Moly and Anr. v. State of Kerala (supra), the Supreme Court held that new plea relating to lack of jurisdiction not raised before the Court below can be raised for the first time since if it is a pure question of law without any factual controversy. In the case before us, the plea now sought to be raised regarding authority of the Principal Secretary to decide the dispute is no doubt a fact over which there is controversy as no material has been placed by the writ-petitioner showing that the Principal Secretary was not authorised. Over and above, the Principal Secretary and the State Government were bound by the earlier decision mentioned above. We, thus, find that the decisions cited by Mr Bose cannot help is client in any way.
61. In this connection, it will not be inappropriate to refer to the decision of the Supreme Court in the case of Ugar Sugar Works Ltd. v. Delhi Administration and Ors. (Supra), relied upon by the respondents wherein it has been held that there is no fundamental right of a citizen to carry on a trade in liquor and each State has the power to formulate its own policy regarding such trade and where a policy of the Government is not tainted by mala fidesand is not unfair, unreasonable or arbitrary, the fact that a particular decision may hurt business-interests of a party would not justify interference by the judiciary. In the case before us, the only grievance of the appellants is that their business-interests will be affected. Therefore, the said reason cannot be a ground for interference with the decision taken by the Principal Secretary. Similarly, in the case of Khoday Distilleries Ltd. and Anr. v. State of Karnataka and Ors. (supra), the Supreme Court reiterated that a citizen has no fundamental right to trade or business in liquor as a beverage and State can prohibit completely the trade or business in potable liquor since the trade or business in liquor is res extra commercium.The State may also, according to the Supreme Court, create monopoly in itself for trade or business of such liquor. Therefore, even if today the State Goverunent takes a policy-decision of conferring monopoly to the Government-owned-company in the business of intoxicants, the writ-petitioner cannot complain against such act alleging infringement of Article 14 of the Constitution of India.
62. In the case of G.N. Nayak v. Goa University and Ors. (supra), it has been pointed out by the Supreme Court that it is not every kind of bias, which in law is said to vitiate an act; it must be actuated by self-interest, whether pecuniary or personal. According to the Supreme Court, because of this element of personal interest, bias is also considered as an extension of the principle of natural justice that no man should be a judge in his own cause. The Supreme Court further held that every preference did not vitiate an action and if the preference was rational and unaccompanied by the consideration of personal interest, pecuniary or otherwise, it would not vitiate a decision.
63. Even in the latest decision of the Supreme Court in the case of Kuldeep Singh v. Govt. of NCT of Delhi (supra), it was held that in a case where Government invited application for grant of licence for liquor-vend but before the disposal of all the applications, the Government took a decision not to grant any new licence, even in the said circumstances, change of policy-decision was held to be permissible and investment of huge amount by the persons whose applications were pending, it was held, did not confer on them any accrued or vested right so as to bar the Government from changing the previous policy-decision.
64. From the aforesaid decisions of the Supreme Court, it is clear that in the matter of sale of country-liquor, the policy-decision of the Government cannot be interfered with in a writ-matter unless gross-violation of Article 14 is proved. In the case before us, we have already pointed out that the decision was quite reasonable and we, thus, find no reason to interfere with the decision of the Principal Secretary.
65. We, thus, find no merit in these mandamus-appeals and those are dismissed accordingly. All interim orders granted earlier stand vacated. In the facts and circumstances, there will be however no order as to costs.
66. I agree.
Sd/- B. Bhattacharya, J.
(Bhaskar Bhattacharya, J.)
Sd/- P.S. Banerjee, J.
(Prabuddha Sankar Banerjee, J.)
Later : 26.09.2006
66. After this order is passed Mr. Mukherjee and Mr. Sen, learned Counsel appearing on behalf of the appellant pray for stay of operation of our order, In view of what have been stated above we find no reason to stay our order. Prayer for stay is refused.
67. Let xerox certified copy of this judgment be given to the parties, if applied for, by tomorrow upon compliance of all formalities.
