TAPEN SEN,J. - (1.) The Petitioner Apurba Kishor Das holds a Foreign Liquor Shop "OFF" License being Licence No. 178-5N at Garfa Main Road, Kolkata-700 078. It appears that on 3.5.2011 the Additional District Magistrate (Gen.) and Collector of Excise, wrote to him saying that permission for reopening his shop at the said address was not free from restrictions of Rule 8 and therefore, the Petitioner was directed to submit documents for shifting of the shop to a new site at 146, Garfa Main Road, Kolkata-700 078 under P. S. Kasba. It is not necessary for this Court to enter further into the facts of this case save and except to record that during the course of submissions, Mr. Abharatosh Majumdar, learned Counsel for the State produced, for the perusal of this Court, Written Instructions signed by the Excise Commissioner, Government of West Bengal dated 30.1.2012 under Memo. No. 1M-07/10-11/305-EG.
(2.) For the convenience of all, the said Written Instruction is quoted below ands it reads as follows :"GOVERNMENT OF WEST BENGALExcise Directorate,32, B. B. Ganguly Street, Kolksata-12. Memo. No. 1M-07/10-11/30564. Dated : 30.01.12 From: The Excise Commissioner West Bengal. To : The Secretary Excise Department Government of West Bengal Re : Seeking instruction on reopening a F.L. off Shop at Garfa Main Road in line with an order of the Hon'ble High Court in W.P. No.628 of 2011. Sir, With reference to the above this is to inform you that the matter came up for hearing before His Lorship the Hon'ble Justice Tapen Sen of the High Court at Calcutta on 24-01-2012. The matter is in connection with a F.L. off Shop settled through lottery. The shop was closed down due to public agitation. Later during enquiry it was revealed to be a restricted site under rule 8 of notification no. 800 Ex dated 29.7.2003 due to the presence of three schools and temple within 1000 ft. of the shop. The excise authorities asked the licensee to offer an objection-free site. Though he offered an objection free site, the licensee subsequently moved the Hon'ble High Court praying to reopen the closed shop at the existing site only. After hearing the matter the Hon'ble Justice Tapen Sen has asked the State Advocate to take written instruction that the Excise Department to allow the licensee to reopen the shop subject to an undertaking that he would ensure peace in the locality failing which the excise authorities may take steps according to law. The ADM, South 24 Parganas has sought clarification whether a license can be allowed to run at an existing site if the site is found to be restricted. It may be said in this regard that the site at Garfa Main Roads is an existing site. There is no bar in allowing the license to run at that site. It may also be noted that restrictions under rule 8 of 800 Ex Dated 29.7.03 applies during grant of new license. This instant matter relates to an existing license and hence there is no scope under rules for examining restrictions after the grant of license. I enclose herewith the letter received from the ADM and Collector, South 24 Parganas for your kind perusal and necessary clarification in the matter. Yours faithfully,Excise CommissionerWest Bengal."
(3.) The said Written Instruction is also taken on record.;