- (1.) The facts in this case are shortly as follows: One Sajani Mohan Batabyal was the holder of a license in respect of a country spirit shop at No. 4, Grand Trunk Road, Howrah. He died on September 22, 1951. Thereupon, his widow Shrimati Bhanumati Batabyal applied for a settlement, and later nominated her son, Tarapada Batabyal, who applied for a settlement. Upon the death of a licensee, the Collector is empowered to renew the license with a representative of the deceased (Rule 29, West Bengal Excise Compilation, pt. II). There appears to exist certain departmental instructions called the "Martin Circular", which provides that upon the death of a licensee, it should first be seen whether he was managing the shop to the satisfaction of the Excise authorities till the time of his decease. If his management was satisfactory, it was next to be seen whether any of his near relatives were (1) competent and were (2) actually helping him in the management of the shop. Tarapada Batabyal stated that he had been a registered salesman in the shop for three years up to the time of his father's death and was actually helping his father in the management of the shop. It appears that he is a matriculate.
(2.) The Petitioner also applied for a settlement of the shop. It appears that he had a country spirit shop in the town of Bogra for a number of years. He says that he was deprived of this license upon the allegation that he was a fifth columnist. The usual advertisements were issued and the Collector proceeded to consider the applications. By an order, dated August 20, 1952, the Collector held that Tarapada was not entitled to the license because he was not satisfied that Tarapada had been actually helping his father in the management of the shop. He ordered that the shop be settled with the Petitioner.
(3.) There was an appeal by Shrimati Bhanumati and Tarapada Batabyal to the Commissioner of Excise against this order. The Commissioner also held that the Appellants had not satisfied the terms of the "Martin Circular" and he, by his order, dated October 28, 1952, refused to interfere. The Appellants then applied to the Government of West Bengal for a revision of the order. The matter came up for hearing before the Minister-in-charge of Excise. It appears that he heard lawyers appearing on behalf of the parties. Two affidavits were filed on behalf of the Batabyals in spite of the protest of the Petitioner's lawyers. No opportunity was given to the Petitioner to controvert the contents thereof. I shall revert to this aspect of the case presently. By his order, dated April 2, 1953, the Minister-in--charge of Excise allowed the revision petition and set aside the orders of the Collector and the Commissioner. This order is challenged in this Rule. This Rule was issued on May 11, 1953, calling upon the Respondents to show cause why a writ in the nature of mandamus should not be issued, directing the Respondents to forbear from enforcing the impugned order. The learned advocate for the Petitioner takes two points which are as follows: (1) That the State Government (that is to say, the Minister-in-charge of Excise) had no power of revision in this case and the order of the Excise Commissioner is final. (2) That if the State Government had such power of re-vision, the rules of natural justice were violated by allowing the two affidavits to be filed without granting any opportunity to the Petitioner to meet them. With regard to the first point, it is formulated thus. It is said that the order of the Excise Commissioner is made under Section 35 of the Bengal Excise Act (V of 1909) and that the order is final. The relevant part of Section 35 is as follows: The Excise Commissioner shall consider the list, objections and opinions so sent to him, and may modify or annul any order passed or license granted by the Collector, and, notwithstanding anything contained in Section 8, his orders shall be final...;