- (1.) The aforesaid application has been taken out by the State respondent for recalling of the order dated 22nd July, 2005 whereby and whereunder the above writ petition was disposed of finally setting aside and/or quashing the order of the Collector of Excise, Calcutta dated 29th September, 1999. By this order the Collector directed that business of foreign liquor "Off Shop" in the name and style of the writ petitioner to be closed and all operations on the basis of the excise licence is stopped on purported recovery of non-duty paid Indian made foreign liquor being recovered from the shop of the petitioner. The said writ petition was heard from time to time on several days. However, on 22nd July, 2005 the learned Lawyer for the respondent was not present when he was scheduled to address the Court. Therefore, having found non-appearance I disposed of the writ petition on merit with reasons and on the basis of the fact finding.
(2.) Oh 22nd December, 2005 I technically disposed of the recalling application with an observation that Mr. Kar will make his submission on the merit of the matter and if the Court considering his submission, finds that the order is required to be recalled then it may be recalled or modified in suitable manner after hearing the matter, otherwise the order will remain as it is
(3.) In the context of the aforesaid order Mr. Joydip Kar led by Mr. A. C. Kar for the State contended that the writ petition is not maintainable as the impugned order was appellable one under the provision of Section 8(2) of the Bengal Excise Act, 1909. So the petitioner, without exhausting the remedy provided under the statute, has approached with this writ petition add this should be dismissed on that ground alone. According to Mr. Kar, under Section 42 of the Bengal Excise Act, 1909 (hereinafter referred to as the said Act), licence granted under the said Act can be suspended or cancelled on the various pounds as mentioned therein. Under Rule 2A of the rules framed under Section 86 of the said Act, licence granted under the said Act to a company will stand determined on any change of membership of the company or in the management thereof unless in the case of the private company prior approval of the State Government to such change is obtained. It is an admitted position that there has been change in management by reason of induction of the Directors of the company. This change has occurred without prior approval having been obtained, as such the licence granted earlier shall stand automatically cancelled. Before the Collector could consider the question of violation of the aforesaid Rule and for violation of provision of Section 18 of the said Act which debars possession of intoxicant not having been obtained from a licensed vendor the present proceeding has been filed. Under provision of Section 44A of the Bengal Excise Act, 1909 no person to whom a licence or permit has been granted under this Act shall have any claim to the renewal thereof, as licence is granted from year to year and its renewal depends on the observance of the terms and conditions of the licence by the licensee. In view of breach of the aforesaid conditions the same is liable to be cancelled and/or suspended. There has been no illegality of the order of suspension of business passed by the Collector. It cannot be contended that the Collector had no jurisdiction to pass such order. The Writ Court cannot usurp the jurisdiction of the statutory authority. The Writ Court can only interfere with the order of the statutory authority when it is found that the same is perverse, irrational and mala fide and also unreasonable. In support of this submission he has relied on three decisions of the Supreme Court reported in (1998)8 SCC143 (State of West Bengal v. Nuruddin MalUck), (2002)5 SCG 37 and (2004 6 SCC 588 (M.C.Mehtav. Union of India).;