TaxTMI 
TaxTMI 
2013 (7) TMI 601
X X X X Extracts X X X X
X X X X Extracts X X X X
....rective principles as laid down under rule 62/85 of the B. E. Act, 1909". He, therefore, proceeded to reject the application of the petitioner for licence. The order passed in this respect by the Collector dated February 16, 2012, is the subject matter of challenge in this writ petition dated June 25, 2012. 2) Preliminary objection to the maintainability of the writ petition has been raised by Mr. Sengupta, learned advocate for the official respondents and Mr. Sarkar, learned advocate for the private respondents. They contended that the Bengal Excise Act, 1909 (hereafter the Act) provides a remedy of appeal to the petitioner before the Excise Commissioner and, therefore, the petitioner ought to be relegated to the appellate forum. 3) The argument that a writ petition is not maintainable because an alternative remedy is available is not at all sound. Availability of an alternative remedy does not oust the jurisdiction of the writ court. Such availability may provide thought to the court as to whether the writ petition should be entertained or not. Judicial discretion has to be exercised bearing in mind the facts and circumstances of each case. The objection has to be characterized....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... illegal in the sense that the provisions of law requiring adherence have been observed in the breach. 5) From the factual narrative, it would appear that the Collector perceived a compulsion "to apply the directive principles as laid down under rule 62/85 of the B. E. Act 1909". 6) The Collector would have done well to point to specific provisions of the Act and the rules framed thereunder. The Act contains sections and not rules and, therefore, reference to a rule of the Act in the impugned order would seem to be misplaced. Having considered the provisions of Section 85 of the Act conferring power on the State Government to make rules for the purpose of carrying out the objects thereof or any other law for the time being in force relating to excise-revenue, and Section 86 which confers further power on the State Government to make rules in respect of the matters mentioned in clauses 1 to 14 thereof, I have been able to gather (without the assistance of the learned advocates for the parties) that reference to "rule 62/85 of the B. E. Act 1909" is indeed reference to Rule 62 of the consolidated rules framed under Section 85 of the Act, for, such Rule 62 is obviously a factor rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther the applicant(s) is/are eligible to hold the licence according to rules 11 and 12 of the Rules published under Notification No. 800-EX. dated 29.07.2003 as amended. C. The following steps shall thereafter be followed by the Collector:- (a) He shall consider, public grievance, if any that may be submitted to him in this regard. (b) In case of receipt of such public grievance, he shall cause enquiry of the same. If on such enquiry, the representation(s) are found to be genuine, he shall not consider the prayer for grant of such licence at the proposed site. (c) To form an opinion, he may conduct any other enquiries as he feels necessary. D. After being satisfied that the proposed site is free from any restriction/objection and the proposed licensee(s) is/are eligible to hold an excise licence, the Collector shall grant a licence temporarily for a period not exceeding six months to the said applicant(s)." 10) For the purpose of deciding as to whether the Collector had complied with the statutory requirements prescribed by Rule 62 of the consolidated rules made under Section 86 of the Act and the steps mentioned in clause C of Rule 9 of the 2003 Rules, it would be necessary ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the Collector had conducted any enquiry to find out the creditworthiness of the complaint(s). Having looked into the complaint dated August 29, 2011 appearing at pages 45 to 48 of the writ petition, it appears that at least 8 Councillors of the local municipality had signed as complainants. The local Councillor may have objection but how Councillors of other wards could join as complainants is not comprehensible. It further appears that members of one political party in unison had objected to issuance of licence prayed for by the petitioner. What was the interest of the members of a political party to object has not been ascertained by the Collector. It also appears that the Head Mistress of Amrabati Vidyapith was co-complainant and a representative of the said school was present at the hearing. It has been gathered from the order impugned that no school is located within the prohibited distance, as laid down by the 2003 Rules. Therefore, the locus standi of the faculty of the school or members of its managing committee to object ought to have exercised the consideration of the Collector, which unfortunately seems to be lacking. It is also appearing from the objection dated D....