- (1.) This mandamus appeal being MAT No.1995 of 2003 is directed against common judgment passed by Hon'ble Single Judge on 16th June 2003 in connection with three writ applications whose numbers are W. P. No.17894 (W) of 2002 (Chiranjeeb Ghosh Vs. State of West Bengal & Ors.), W. P. No.17895 (W) of 2002( Nirmal Sarkar Vs. State of West Bengal & Ors.) and W. P. No.16851 (W) of 2002 (Kashi Nath Saha Vs. State of West Bengal & Ors.). By the common judgment the Hon'ble Single Judge dismissed W. P. No.17894 (w) of 2002 and W. P. No.17895 (w) of 2002 but W. P. No.16851 (w) of 2002 was allowed in part.
(2.) The fact leading to filing of the said writ applications may be summed up thus: - a) That the Government of West Bengal through Excise department advertised notification in different newspapers whereby it invited applications from the intending candidates in prescribed form No.1 along with application fees of Rs.1,000/- for urban area. The said advertisement was for grant of non-foreign liquor "off" shop at Baguihati under police station Rajarhat. b) Different applications were received by the department in response to the said advertisement. The appellant namely Chiranjeeb Ghosh was one of the applicant for the grant of said license in his favour. Thereafter, scrutiny was made on receipt of the applications by the District Excise Authority and a panel of candidates was prepared for lottery. c) The case of the petitioner is that his name did not appear in the list of candidates who were selected for the lottery. The appellant enquired about the same when he came to know that his name was not considered as his father holds one excise license. d) Thereafter lottery was duly held for grant of non-foreign liquor "off" shop at North 24 Parganas on 27th March, 2001 which was duly conducted by the Director of State Lotteries, West Bengal. The result of the lottery dated 27th March 2001 was affixed in the notice Board of the office of the respondent No.2 in which the name of Nirmal Sarkar(sl No.1), Partha Majumder(sl. No.2) and Kashinath Saha (sl. No.3) were mentioned along with their code numbers. It is the specific case of the appellant Chiranjeeb Ghosh that sl. No.1 Nirmal Sarkar was not entitled to be considered for lottery as his mother obtained one excise license for retail venue of ordinary Denatured spirit. e) The appellant expressed his grievances before the respondent No.3 which was turned down. Subsequently, the appellant sent a written objection on 21st March 2001 regarding such empanelment. It is the specific case of the appellant that name of Nirmal Sarkar was considered for lottery though his mother was holding excise license at the time of submitting the application. The name of Nirmal Sarkar was considered for Lottery in violation of order No.66/Ex/O/IM-88/99 dated 4th February 2000. Rule 5(2) (d) clearly provides that an application shall be rejected if any member of the applicant holds any excise license or applied for license intended to be granted at the same site. It is also the specific case of the appellant that the concerned authority acted beyond jurisdiction in considering the application of Nirmal Sarkar despite the fact that his mother possessed an excise license at the time of submitting his application for grant of license at new sites of non foreign liquor 'off' shop at North 24 Parganas (para 14 of the writ application). f) It is also the specific case of the appellant that the authority concerned violated the provision of Rule as the application of the appellant was rejected on the ground that his father was holder of excise license. It is the further case of the appellant that special privilege was given to Nirmal Sarkar to participate in the lottery. As his objection before the concerned authority was not considered, he (appellant) had to file the writ application before the Hon'ble Court. g) The appellant also took the plea that one of the writ petitioners namely Nirmal Sarkar suppressed fact in the application as he did not mention that his mother was holding one excise license. h) As all the three writ applications had common question of law, those were heard analogously by the Hon'ble Single Judge and by the order dated 16th June 2003, dismissed the writ applications being W.P No.17894 (w) 2002 ( Chiranjeeb Ghosh) and W. P. No.17895 (w) of 2002 (Nirmal Sarkar). However, the Hon'ble Single Judge allowed W. P. No.16851 (w) of 2002 (Kashinath Saha) in part cancelling and setting aside the impugned letter dated June 11, 2002 issued by the State respondent as also the candidature of Nirmal Sarkar. Consequential direction was issued to the State respondent to act in accordance with law with respect to the offering of excise license to the next suitable candidate in the order of seniority in the panel in question for the 'off ' shop in question. The Hon'ble Single Judge further directed that such exercise shall be completed expeditiously and preferably within three months from the date thereof. i) Against the said judgment, the instant appeal has been preferred by one of the writ petitioners namely Chiranjeeb Ghosh.
(3.) Mr. Ajit Panja, learned Counsel for the appellant challenged the order impugned on the following grounds: - a) That the Hon'ble Single Judge did not consider that the procedure in empanelling the names of the candidates for the lottery was vitiated due to procedural defect. b) That the Hon'ble Single Judge did not consider that the name of the present appellant was not considered by the authority for lottery though another candidate namely Nirmal Sarkar whose mother had excise license at the time of submission of the application was duly considered by the authority for lottery. c) That the Hon'ble Single Judge committed error in not passing appropriate order for cancelling the name of the candidates who were selected after the lottery. d) That the Hon'ble Single Judge ought to have allowed the prayer of the present appellant.;