- (1.) This Mandamus-Appeal is at the instance of a writ-petitioner and is directed against order dated 5th October, 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ-application filed by the appellant in which the appellant challenged the legality and propriety of the order dated 25th July, 2006 passed by the Sub-Divisional Magistrate and SubDivisional Officer, Malda by which the Bar of the writ-petitioner under the name and style Barron Bar-cum-Restaurant was temporarily closed after an explosion on 9th June, 2006 followed by final order passed by the District Magistrate, Malda dated 16th August, 2007 refusing to reopen the Bar at its existing site but giving liberty to the writ-petitioner to shift the same to some other safer zone. Being dissatisfied, the writ-petitioner has come up with the present Mandamus-Appeal.
(2.) The facts giving rise to filing of this Mandamus-Appeal may be summed up thus: a) On 7th September, 2005, the appellant was granted licence for retail sale of foreign liquor from his Bar premises at Pranta Pally, Rathbari, under English Bazar, P.S., Malda till 31st March, 2006. b) On 9th June, 2006 at about 2 A.M., there was an explosion causing immense damage to the premises where the Bar is situated. At that point of time, the Bar remained closed. c) On 10th June, 2006, the respondent No.6 inspected the premises and on receipt of necessary release order from local police authority on 16th June, 2006, the appellant renovated the damaged Bar premises. Thereafter, on 27th June, 2006, the appellant made a written request to respondent No.8 to hand over all documents received from him on 10th June, 2006 so that he could reopen his business followed by subsequent reminders on 29th June, 2006, 30th June, 2006 and 17th July, 2006 but to no effect. d) On 19th July, 2006, the appellant wrote a letter to the respondent No.3 with a request to direct the Excise Department to certify newly purchased documents like Bar Register, Godown Register etc., so that he could reopen his business for which, according to the appellant, he was incurring daily financial liability of Rs.1,500/- against bank loan taken for running his business. e) The respondent No.7 visited his Bar and submitted his inspection report on the basis of which the respondent No.4 issued an order dated 25th July, 2006 directing the appellant to close his business temporarily. f) Being dissatisfied, the appellant filed the writ-application. g) The writ-application was contested by respondent Nos. 1 to 8 and thereby alleging that the appellant cannot be allowed to continue at the site situated on the first floor of the residential complex named Rituraj Apartments . According to the respondents, after explosion, the local residents of the apartment raised objection and prayed for closure of the said Bar-cum-Restaurant within residential area. It was also submitted that in the entire district of Malda, there were 11 Barcum-Restaurants of which only the appellant s liquor shop was situated in a residential complex. Consequently, instead of cancellation of his licence, the appellant was given option to select a free alternative site for grant of licence to carry out the business. h) The learned Single Judge by the order impugned came to the conclusion that there was no illegality or impropriety in the administrative action of the District Authority in asking the appellant to change the place of business justifying interference in a writapplication. i) Being dissatisfied, the writ-petitioner has come up with the present Mandamus-Appeal.
(3.) Mr. Kar, the learned Advocate appearing on behalf of the appellant by relying upon various provisions of the Bengal Excise Act and Rules framed thereunder, tried to impress upon us that there was no justification of the Excise Authority to ask the appellant to shift the business, as his client has neither violated the terms of the licence nor is there any inaction or negligence on the part of his client in the explosion. By relying upon the police report, Mr. Kar tried to impress upon us that the explosion was an act of accident and that can happen at any place and therefore, the order of the District Authority in asking his client to shift the place of business was illegal. Mr. Kar further contended that under the Act and Rules framed thereunder, there is no provision of asking an existing licensee to shift the place of business unless the licensee himself applies for shifting. Mr. Kar, therefore, prays for setting aside the order passed by the learned Single Judge and directing the District Authority to permit his client to resume the business.;