Decided on March 06,1996

AMAR PAL Appellant
State And Ors. Respondents


Bijitendra Mohan Mitra, J. - (1.)Two pending writ applications came up together for analogous hearing being one in C. O. No. 10556 (W) of 1995 and another being C. O. No. 20210 (W) of 1995. In the first writ application which was at the instance of the writ petitioner in the said petition viz. one Amar Pal and the relief claimed in the raid writ petition was to grant a licence in favour of the petitioner for settlement of "off shop" at Bagdogra in pursuance of a report submitted by the respondent no. 3 thereof being annexure 'G' to the writ application. The second writ application is at the instance of another person viz. one Gour Prosad Nandy and the prayers contained in the said writ application are for setting aside Memo No. 74/l(3)/E dated 30.10.95 issued by the Superintendent of Excise being annexure 'K' to the application and also for a Writ of Mandamus seeking direction upon the respondents each one of them to allow the petitioner to carry on his business of off shop at Bagdogra for which licence alleged to have been obtained being licence no. 1/95-96 from the Collector, Darjeeling.
(2.)In the first writ petition there was an order passed by Suhas Ch. Sen, J. on 11.1.93 and in terms of the operative portion of the said order it was directed that the respondents would not be entitled to give any effect to the advertisement under challenge dated 13.3.92 and the respondents were further directed to allot the licence in favour of the person whose name appeared first in the panel prepared by the District Magistrate on or about 10.10.87.
(3.)Against the said order an appeal was taken out by the State Respondents in F.M.A.T. 1895/93 and by an order dated 5.1.93 the Division Bench modified the order passed by the learned trial Judge to the extent that the District Magistrate would consider the eligibility and suitability of two persons for grant of "off shop" licence and submit a report to the Court. The question regarding grant of temporary licence or permit be decided upon receipt of the said report. Subsequent thereto from the passing of the said order passed by the Division Bench it was detected that the appeal in question was preferred out of time but that was not pointed out. As a result of the same the order impugned saw the light of the day in a non-est proceeding as the appeal stood time barred on the date of the filing of the appeal and the entire judgment passed by the Appeal Court in a pending appeal cannot be taken into account because the judgment suffers from intrinsic element of infirmity of hung nullity. The matter has been admitted to be thrashed out after the delivery of the judgment before another Division Bench presided over by the then Chief Justice viz. the Honourable K. C. Agarwal and the Division Bench after hearing the parties were pleased to hold that the appeal would be liable to be dismissed on the ground of limitation in view of the judgment passed by the Division Bench as aforesaid by Ajit Kr. Sengupta, J. and by N. A. Chowdhury, J. being treated as a judgment in nullity this Court is not required to look into the same nor it can give any credence to such judgment which is vitiated by nullity because the assumption of jurisdiction by the Division Bench in a non-est proceeding. If the judgment passed of the non-est proceeding in the appeal cannot be looked into then the judgment delivered by the learned trial Judge revives and on the strength of the same the petitioner in the other writ petition is stated to be enjoying the facility of the business of running the "off shop" on the basis of a temporary licence which is being deemed to have been treated to have been renewed because of the orders passed by this Court.

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