- (1.) The petitioner applied for a foreign liquor 'on' shop licence on July 6, 2006. The application not having been considered despite sufficient time having lapsed since the making thereof, the petitioner had the occasion to approach this Court by presenting a writ petition [W.P. 3516(W) of 2010]. Prayer was made for a mandamus on the respondents to issue licence in favour of the petitioner. The writ petition was dismissed by a coordinate Bench by an order dated September 6, 2011, expressing hope and trust that the petitioner's application would be disposed of in accordance with law as and when his turn arrives. Pursuant to such order, the petitioner's application was considered by the Superintendent of Excise, Burdwan East Area, Burdwan and was rejected by an order dated December 23, 2011. It was noticed by the superintendent that during the pendency of the petitioner's application for licence, the relevant rules contained in Govt. Notification No. 800-EX dated July 29, 2003 had undergone changes vide promulgation of Govt. Notification No. 127-EX dated February 11, 2010 and as such, the application could not be considered in the light of the former notification. It was, however, observed that the petitioner was free to apply afresh in the light of the prevailing rules i.e. the notification dated February 11, 2010. The order of the superintendent was subjected by the petitioner to challenge in a fresh writ petition [W.P. No. 155 (W) of 2012]. The learned judge who had considered the petitioner's earlier writ petition disposed of the writ petition by an order dated January 11, 2012 by relegating him to the appellate authority under the rules. A writ appeal was pursued by the petitioner unsuccessfully before the Division Bench. However, he was given two weeks' time to prefer an appeal in terms of the liberty granted by the order dated January 11, 2012. Availing the leave granted by the Division Bench, the petitioner did prefer an appeal before the Excise Commissioner, i.e. the appellate authority. According to the petitioner, the appellate authority had to be activated by another order of the writ court dated January 17, 2014 in W.P. No. 32608(W) of 2013 to dispose of the appeal. In compliance with the said order, the petitioner was extended opportunity of hearing and ultimately the appeal has been dismissed by the appellate authority vide order dated April 8, 2014. Before the appellate authority, it was contended on behalf of the petitioner that his application for licence ought to be considered in accordance with the rules which were in vogue on the date it was made. The appellate authority noted that although the existing rules, as amended in 2010, would not have retrospective effect but since the same was made in supersession of the previous rules it was not possible for him to consider the application under such previous rules. The appeal was, accordingly, disposed of without interfering with the order passed by the superintendent. The said appellate order is the subject matter of challenge in this writ petition.
(2.) Mr. Chakraborty, learned advocate for the petitioner, placed reliance on the decision of the Supreme Court (M/s. Punjab Tin Supply Co. Chandigarh v. Central Government, 1984 AIR(SC) 87) and invited my attention to paragraph 17 thereof reading as follows: "17. All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of the surrounding circumstances retrospective effect should be given to it or not."
(3.) He argued on the authority of the said decision that the contents of Govt. Notification No. 127-EX dated February 11, 2010, as amended, would have prospective effect and the authorities grossly erred in law in applying the terms of such notification to negate the petitioner's claim for licence. Reliance was also placed by him on the decision (State of West Bengal v. West Bengal Foreign Liquor Manufacturers Wholesalers and Bonders Association, 2011 1 CalHN 217) for the proposition that administrative action should be devoid of arbitrariness, and the decision of the Supreme Court (M/s. Sukhnandan Saran Dinesh Kumar v. Union of India, 1982 AIR(SC) 902) for the proposition that if law imposes any restriction on the carrying of any trade, the burden of sustaining such restriction is on him who seeks to support it.;