SABYASACHI BHATTACHARYYA,J. - (1.) The petitioner has preferred the present challenge against Order No. 673/SED/E dated December 10, 2019 passed by the Additional District Magistrate (D) and Collector of Excise, Hooghly, directing temporary closure of the petitioner's 'Rikta Restaurant cum Bar' , "for the time being" under Section 26(1), Bengal Excise Act, 1909 (hereinafter referred to as "the Bengal Excise Act"). Such order is annexed at page 64 of the present writ petition.
(2.) Learned senior counsel for the petitioner argues that the petitioner was granted a temporary license to run the restaurant"cum"bar within the purview of Rule 4, Clauses (i), (j) and (k) of The West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as "the 2003 Rules"). The said clauses permitted sale of foreign liquor for consumption "on" the premises of any restaurant and attached bar, hotel"cum"restaurant"cum"bar and hotel"cum"bar. Rule 9 of the 2003 Rules governs the procedure for selection of new site for grant of licenses. Rule 9 reads as follows: "9. Procedure for selection of new site for grant of licenses " (1) Subject to such instructions as may be issued by the State Government or Excise Commissioner from time to time, if the Collector is of the opinion, having regard to the general trend of consumption of liquor and other intoxicants as specified in sub"rule (1) of rule 2, in a local area or its adjoining area, that it is necessary to grant license(s) of any number and any category referred to in clauses (a) and (c) to (m) of rule 4 at certain new sites within a local area in order to meet the demand of such area or adjoining areas, he shall, for the purpose of selection of new sites by the State Government under section 30, prepare a preliminary list of such local areas within which, in his opinion, license of any category should be granted. Provided that in preparing a preliminary list, the Collector shall not include therein the sites for the grant of the licenses of the categories specified in clauses (f) to (m) of rule 4 unless a person or company, or firm, the owner of a hotel, restaurant, club, sites, theatre or other places of public resort and entertainment who is eligible under the provisions of these rules, or any person duly authorized by him, makes an application in Form I or Form II (appended to these rules) as the case may be, with the requisite court"fee: Provided further that at the time of processing the proposal for grant of the categories of licenses mentioned in clauses (f), (g), (l), (m) of Rule 4, the Collector may process the proposal before completion of the proposed site according to the blue"print plan, but before issuing license, after obtaining approval of Government for selection of site, the Collector shall ask the applicant to acquire the premises of complete the construction within thirty days of receipt of the communication and only after acquisition or completion within the stipulated time, as the case may be, the Collector shall issue the license. Provided further that, all applications submitted for the grant of licenses of the categories specified in clauses (h), (i), (j) and (k), of rule 4, shall initially be treated as applications for the grant of license(s) temporarily for a period not exceeding six months and the Collector may process the proposals, only if the proposed site is completed, accordingly to the blue"print plan. The collector shall also go through the following steps, for disposal of the proposal for grant of such licence:" A. He shall ensure whether the following information and documents have been furnished by the applicant, along with the application:" (a) A copy of treasury challan, showing deposit of non"refundable application money as fixed under the prevailing rules. (b) An estimated monthly sale of Foreign Liquor from the proposed licensed premises. B. After obtaining the application, with the information and documents mentioned above, the Collector shall cause enquiry of the same by a responsible officer, to ascertain:" (i) The demand of the local area. (ii) Whether the area is free from objections as contemplated in 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, published vide Notification No. 800"EX., dated 29.07.2003, as amended. (iii) Whether the applicant(s) is/are eligible to hold the licence according to Rules 11 and 12 of the Rules published under Notification No. 800"EX., dated 29.07.2003 as amended. C. The following steps shall thereafter be followed by the Collector:" (a) He shall consider, public grievance, if any, that may be submitted to him in this regard. (b) In case of receipt of such public grievance, he shall cause enquiry of the same. If on such enquiry, the representation(s) are found to be genuine, he shall not consider the prayer for grant of such licence at the proposed site. (c) To form an opinion, he may conduct any other enquiries as he feels necessary. D. After being satisfied that the proposed site is free from any restriction/objection and the proposed licensee(s) is/are eligible to hold an excise licence, the Collector shall grant a licence temporarily for a period not exceeding six months to the said applicant(s). E. During the period of running such licence, the holder(s) shall be required to pay fees, as may be fixed from time to time. F. Grant of a regular licence may be considered: (a) after the holder of such temporary licence has run the same for a period not exceeding six months, (b) after the Collector is satisfied that the revealed demand justifies the location for the grant of a regular licence, and (c) subject to the Collector's satisfaction that the application merits recommendation. The Collector may in such cases recommend the proposal for grant of a regular licence and send the same to the Excise Commissioner, who may send it to the Government with his opinion if any. If the Government approves the grant of the regular licence, the same shall be conveyed by the Excise Commissioner, to the Collector. After receiving the approval of the government, the Collector shall grant the regular licence, after realization of fess applicable to new licence(s) of the same category of the same local area. Explanation: For the purpose of this rule, the word "revealed demand" shall mean the average monthly sale of foreign liquor, during the previous six months, when the licence was allowed to run on a temporary basis. G. If the Collector recommends and sends the proposal to the Excise Commissioner for the grant of a regular licence for the remaining period of the settlement year or the next period of settlement, he shall issue further temporary licences for periods not exceeding six months in favour of the holder. Such fresh licenses, granted on a temporary basis not exceeding six months, shall be continued to be granted till receipt of an order of approval or rejection from the Government, duly conveyed by the Excise Commissioner. Fee, as mentioned at 'E' above, shall be realized by the Collector for such further grant of licence on a temporary basis not exceeding six months. (2) In arriving at an opinion referred to in sub"rule (1), the Collector may hold such enquiry as he deems fit, subject to any direction in this regard which may be issued by the State Government or the Excise Commissioner from time to time. (3) The Collector shall forthwith send the list referred to in sub"rule (1) along with his opinion to the Excise Commissioner. (4) The Excise Commissioner shall thereafter forward to the State Government the list, the records and the documents sent to him under sub"rule (3), as the case may be, along with his own opinion to the State Government. (5) The State Government shall finally consider the preliminary list and the documents with the opinions forwarded to it under sub"rule (4), and if it is so satisfied that it is necessary to grant licenses in the local area in order to meet the demand for liquor or any other intoxicant, it may select local areas for categories and number of licenses referred in clauses (a) and (c) to (e) of rule 4 and sites for categories of licenses referred in clauses (f) to (m) of rule 4 for grant of licenses and communicate the same to the Excise Commissioner: Provided that before selecting any local area for grant of licenses of the categories referred in rule 4, the State Government may, if it considers it necessary, obtain the views of the Commissioner of the Division under whose jurisdiction the local area falls. (6) Omitted by Notification No. 455"EX., dated 6.3.2006 (w.e.f. 13.3.2006). Note - Omitted by Notification No. 455"EX., dated 6.3.2006 (w.e.f. 13.3.2006)."
(3.) Section 26 of the Bengal Excise Act is set out below: "26. Power to close shops temporarily. - (1) The District Magistrate or a Sub" divisional Magistrate, or in Kolkata the Chief Metropolitan Magistrate or the Commissioner of Police, may, by notice in writing to the licensee require that any shop in which any intoxicant is sold shall be closed at such times or for such period as such Magistrate or Commissioner of Police may think necessary for the preservation of the public peace. (2) If any riot or unlawful assembly is apprehended or occurs in the vicinity of any shop in which any intoxicant is sold, any Magistrate or any Police Officer above the rank of constable, who is present, may require such shop to be kept closed for such period as he may think necessary. (3) When any Magistrate or Police Officer makes a direction under sub"section (1) or sub"section (2), he shall forthwith inform the Collector of his action and his reason thereof." ;