- (1.) THE petitioner, Balai Chandra Saha, is the licensed vendor of an excise shop at Purbasthali in the District of Burdwan, dealing in country-spirit, ganja, opium and bhang. He wanted to extend his business and applied for another license in respect of another country-spirit shop at Guskara, in the [district of Burdwan. He succeeded in obtaining a license for the unexpired period of the year 1961-62. The order of the Additional District Magistrate, dated July 25, 1961 settling the Guskara country-spirit shop with the petitioner is set out below :- "considered the petition dated 21. 7. 61 of Sri Santosh Kumar Dutta, licensee of the combined Country spirit, Ganja Opium and Bhang shop at Galsi, to the effect that he is unable to take settlement of the Country-Spirit shop at Guskara for his failure to secure a suitable site for the shop. The orders dated 7. 7. 61, settling the Country-Spirit shop at Guskara with Sri Santosh Kumar Dutta are, therefore cancelled. On considering the merits and demerits of the other candidates interviewed, in the light of the standing orders and instructions relating to settlement of Excise Shops, I find Sri Balai Chandra Saha, at present licensee of the Combined Country spirit, Ganja, Opium and Bhang shop at Purbasthali, to be the most suitable candidate, and I accordingly settle the Country-Spirit shop at Guskara with him. He should, however, continue to hold his present licenses in addition to the one granted to him now, until they are resettled or until further orders. "
(2.) THE respondent No. 1, one Biswanath saha, who was also an applicant for the Guskara Country-Spirit shop, felt aggrieved by the selection of the petitioner as the licensee for the shop and appealed against the order, granting license of the shop to the petitioner, before the Excise Commissioner. By an order, dated February 7, 1962 the Commissioner of Excise dismissed his appeal. The said Biswanath Saha moved against the appellate order before the State Government, under the provisions of section 8 (3) of the Bengal Excise Act. During the pendency of the petition for revision before the State Government, the license in respect of the Guskara shop ended by efflux of time on March 31, 1962. Pending disposal of the revision petition, however, the Collector of Burdwan granted a renewal of the license to the petitioner, for the licensing year 1962-63. By an order, dated June 25, 1962, the State Government allowed the revision petition filed by respondent No. 1, Biswanath Saha, with the following observation:- "the learned Advocate for the petitioner contends that the respondent has no less than 10 entries in the Misconduct Register against him and that his records as an existing excise licensee is such that he should never have been promoted to this bigger shop in preference to his client. The records produced before me disclose that the respondent has in fact 10 entries against him in the Misconduct Register. It further appears that all these entries were not before the A. D. M. when he settled the shop with the respondent on 26. 7. 61, nor before the Commissioner of Excise when he heard the appeal on 27. 1. 62. One of these entries relates to a penalty of Rs. 50/- inflicted on the respondent for dilution and short measure of country spirit in a number of bottles in his Purbasthali shop. A country spirit vendor, who was penalized on such serious charges cannot be considered fit for promotion to a bigger country spirit shop. The respondent, who represented his case himself admits that he paid Rs. 50/- as compensation money in the proceedings that were taken against him on the charges as aforesaid, but he contends that he was not present in the shop when the irregularities were detected and that his salesman, and not he, was responsible for it. He submits therefore that he may not be deprived of his hard-earned promotion for no fault of his, but for the fault of his salesman. The Excise law pals a vicarious responsibility on an excise licensee making him responsible for the acts of his employees and I do not see why he should be absolved of this liability. The fact is that he was unable to prevent his salesman from committing such serious breaches of conditions of his license and this should disqualify him from holding the license of a bigger shop. The order of the A. D. M. Burdwan, settling the shop with the respondent, and that of the Commissioner of Excise, upholding the said order on appeal, cannot, therefore, be upheld. The next question is whether the case should, after setting aside the order of the A. D. M. be sent back to him for a fresh settlement as suggested by the Superintendent of Excise representing the Excise Directorate, or a direction should be issued to the A. D. M. Burdwan, for granting the license to the petitioner as canvassed by his lawyer. The petitioner is said to have passed the School Final Examination and acquired experience of running a country spirit shop by acting as a salesman. He is a local man, appears financially sound and is reported to have an objection-free site for the shop at Guskara. As he thus seems to be quite a suitable candidate for the shop, I do not think any useful purpose will be served by remanding the case to the A. D. M. , Burdwan, for a fresh settlement which will involve delay and lead to a fresh round of appeals and revision. "
(3.) PURSUANT to the order by the State Government, it is alleged, steps were being taken to take over the Guskara country-Spirit shop from the petitioner. It was at this stage that the petitioner moved this Court, inter alia, praying for the quashing of the order of the State Government.;