Soumitra Pal, J.
1. The petitioners applied for a regular restaurant-cum-bar licence in accordance with the procedure and rules framed by the Excise authorities. During its pendency, an application was filed with the Collector of Excise, Calcutta South, the respondent No. 3 for the grant of a temporary bar licence.
2. The respondent No. 3, who, as it appears from memo dated 18th May, 2006 was in favour of granting the licence, had requested the Commissioner of Police, the respondent No. 1to issue necessary police certificate if there was no objection from the point of Police Act. However, the Deputy Commissioner of Police, the respondent No. 2, by Memo dated 9th June, 2006, rejected the application on the ground that it failed to comply with the mandatory provisions regarding proximity to educational institution and place of worship. Aggrieved, the petitioners moved the writ petition.
3. Pursuant to directions, affidavit have been exchanged. Learned Advocates for the parties have been heard at length.
4. The police authorities in their affidavit-in-opposition have sought to justify their action. The relevant portions of the relevant paragraphs of the said affidavit are as under:
7. With reference to paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 of the writ application I deny and dispute the statements made therein save and except what are matters of record and call upon the petitioners to strict proof thereof I say that prayer for issuance of police certificate for a temporary bar was rejected as per law as it did not comply with the mandatory provisions regarding proximity to educational institution and place of public worship in terms of the notification No. 527-Ex the 2nd April, 2004 published in the Kolkata Gazette on 15.4.2004 (copy enclosed). It was regarding an amendment by which retail sale of liquor and certain other toxicants were not permissible within 1000 ft. from any place of public worship and educational institution. It was mentioned in the local police report that one school named as the Lee Memorial School at 17, Raja Subodh Mullick Square and one Methodist Church at 151 & 152, Lenin Sarani, Kolkata - 700 013 are within 1000 ft. (one thousand feet) from the proposed site of bar i.e. Hotel Silverline, Besides, another School of Physical Culture at 15/4, Lenin Sarani, Kolkata-13 for boxing, gym, multi Gym and yoga-sona for ladies is situated just opposite side of the Hotel Silver Line with the distance of 150 ft. from the site (xerox of the note sheet pages-II & III of the file No. PS/CD/J1/661/06 containing the enquiry report of OC Pass Sec; Central Division and the Deputy Commissioner of Police, CentralDivision....
8. With reference to para 21, 22, 23, 24, and 25 of the writ application I deny and dispute the statements/allegations therein and call upon the writ petitioners to strict proof thereof. It is stated that the letter dated 12.06.2006 was received by us on 13.6.2006 where the petitioner No. 2 has changed the date of temporary bar as 9.6.2006 to 8.7.2006 and time as 5.30 p.m. to 11.30 p.m. It was categorically mentioned in the letter of the writ petitioner that the Education Institution and the place of Hotel Silver Line, however the aforesaid letter was immediately forwarded to the Deputy Commissioner of Police, Central Division for further enquiry and accordingly further enquiry was conducted and it was revealed that two educational institutions and one church are situated within 1000 ft. from the proposed site.
It is further stated that the police authority shall not issue police certificate if there is any discrepancy found and the requirements are not compeled with. According to Police Act police authority has made an enquiry and filed their report. The Excise Department is the authority to issue licence on the basis of the report of the police. I say that the respondent Nos. 2 and 3 have acted according to law and done their duty properly. I further say that the earlier notification dated July 30, 2003 has been received and the vicinity i.e. the distance 300 ft. within local limit of situation of School. Institution and place of worship has been enhanced upto 1000 ft. which is mandatory I crave leave to refer the notifications for term scope and effect thereof.
5. It appears, from the statements in the paragraphs, that proximity to education institution and place of worship was the reason for passing the order of rejection.
6. The issue, required to be decided, is whether the police authorities, having the power and jurisdiction under the provisions of the Calcutta Police Act, 1866 (for short 'Police Act') can interfere with or usurp the power of the excise authorities to grant temporary bar licence conferred by the provisions of the Bengal Excise Act, 1909 (for short 'Excise Act') and rules framed thereunder.
7. Before dealing with the provisions under the Excise Act and the Police Act, it is necessary to set out the decision arrived at by the Collector of Excise which is as under:
Government of West
Bengal Office of the Collector of Excise, Kolkata (South)
11-Netaji Subhas Road, Kolkata-700 001
No. 97C R.E. Dated: 29.5.06From : the Collector of Excise
To : The Commissioner of Police, Kolkata
18, Lalbazar Street,
Sub: Issuance of Police Certificate for Temporary Bar
On Hotel Silver Line -9.6.06 to 8.7.06
In reference to the prayer of Hotel Silver Line 50/2, Lenin Sarani, Kol-13, dated 25.5.06 the undersigned desires to grant a temporary Bar Licenseon as above from 5.30 p.m. to 11.30 p.m. in favour of them on the occasion of Guest Demand for whichI am to request you to issue necessary police certificate if you have no objection from the point of Police Act etc.
Collector of Excise
Memo No. R.E. Dated:Copy forwarded for information and necessary action to:
The D.E.C, F.L. Zone_______ Kolkata South District.
Collector of Excise,
8. Thereafter, the petitioner No. 2 on 2nd June, 2006 by a letter requested the respondent No. 1 in writing to issue a bar licence. The petitioner No. 2 along with the letter had enclosed the order passed by the Collector of Excise, copies of the deposit of requisite fees, no objection from the landlord, the police authorities, the trade licence, rent receipt and the application for temporary bar licence for consideration. However, the respondent No. 2 on 9th June, 2006 issued the impugned memo rejecting the application which is set out hereunder:
Government of West Bengal
Office of the Commissioner of Police, Kolkata
Pass Department, K.P.D.
18, Lalbazar Street, Kolkata-700 001
Memo No. 2387/Pass Datpd 9.6.06From : Deputy Commissioner of Police,
To: Sri Soumya Dey, Proprietor.
M/s. Hotel silver Line,
50/2, Lenin Sarani,
Kolkata - 700 013.
Sub: Application for issuance of Bar & Music
Licence to M/s Hotel Silver Line of 50/2. Lenin Sarani, Kolkata-13.
It is hereby informed thathis praver on the above subject is regretted as it does not comply with the mandatory provisions regarding proximity to educational institution and place of public worship.
Deputy Commissioner of Police,
9. In order to appreciate the points canvassed and the issues raised, it is pertinent to refer to Sections 30, 36 and 37 of the Excise Act. Section 30 is as under:
30(1) The State Government may, subject to such conditions and restrictions as may be prescribed, select, from time to time, new sites in any local area for grant of a licence for the retail sale of spirit at such new site or in the vicinity thereof having regard to public demand.
(2) Upon selection of the new sites under Sub-section (1),the Collector may, subject to the provisions of Section 37A, grant a license to a person for the retail sale of spiritat the new site or in the vicinity thereof for a period of settlement.
Section 36 is as follows:
36. The provisions of Section 30 and 31 as to licenses for the retail sale of spirit shall also be applicable to the licenses for the retail sale of such other intoxicants as the State Government may, by order, specify, in West Bengal generally or in such local area as may be specified in such order.The relevant portion of Section 37 is set out hereunder:
Notwithstanding anything contained in Section 30 or Section 36, the Collector mav. in such manner and subject to such conditions and restrictions as mav be prescribed, grant license to
(a)any person, for the retail sale of any intoxicant during any period not exceeding six months: or'
10. Under the provisions of the Excise Act, power has been granted upon the authorities to frame rules. In this context, it shall not be out of place to refer to Rules 5, 8 and 9 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003. Rule 5 is as under:
5. Licensing authority.--Subject to the provisions contained elsewhere in these rules,license for the retail sale of liquor or any other intoxicants under items (a) to (o) of Rule 4 shall be granted by the Collector.
The relevant portion of Rule 8 is extracted hereunder:
8. Restriction on grant of license at certain new sites.--No license for the retail sale of liquor or any other intoxicant at a new site shall be granted where the new site is situated in the vicinity of an educational institution recognisedby the State Government or the Central Government or any collage or institution affiliates to any university established by law, traditional place of public worship and hospital for public use.
Explanation I.--For the purpose of this rule, vicinity means a distance of 300 feet.
Explanation I has undergone an amendment and 'vicinity' means a distance of 1000 feet.
The relevant portion of Rule 9 is as under:
9. Procedure for selection of new site for grant of license.--(1) If the Collector is of the opinion,having regard to the general trend or consumption of liquor and other intoxicants as specified in Sub-rule (1) of Rule 2, in a local area or its adjoining area, that it is necessary to grant licenses of any category referred to in Clauses (a), (b) and (d) to (o) of Rule 4 at certain new sites within the local area in order to meet the demand of such area or adjoining area, he shall for the purpose of selection of new sites by the State Government under Section 30, prepare a preliminary list of such local areas within in his opinion, licenses of any category should be granted:
Provided that in preparing a preliminary list, the Collector shall not include therein the sites for the grant of the licenses of the categories specified a Clause (i) to (o) of Rule 4 unless a person or company, or firm, the owner of a hotel, restaurant, club, sites, theatre or other places of public resort and entertainment who is eligible under the provision of these rules, or any person duly authorised by him, makes an application in Form I or Form II (appended to these rules as the case may be, with the requisite Court-fee.)
(2) In arriving at an opinion referred to in Sub-rule (1), the Collector may hold such enquiry as he deems fit,subject to any direction in this regard which may be issued by the State Government or the Excise Commissioner from time to time.
(3) The Collector shall forthwith send the list referred to in Sub-rule (1) along with this opinion to the Excise Commissioner.
11. In this regard, it is necessary to refer to the relevant provisions of Sections 36 and 37 of the Police Act which are as under:
36. Excise license not to be granted without certificate of Commissioner.-No licence shall be granted under the provisions of (the Bengal Excise Act. 1909), unless the person applying for such licence shall produce a certificate from the Commissioner of Police stating that a licence may be granted to him for the sale of spirituous liquors or intoxicating drugs, as the case may be. without risk or determine to the preservation of peace and good order; and containing a full statement of such conditionsas may have been imposed and shall have remained in force, under the provisions hereinafter contained, at the date when such licence shall be granted. (Ben. Act V of 1909)
No licence so granted shall be renewable without a fresh certificate as aforesaid previously obtained from the Commissioner of Police.
(The Commissioner of Police shall, in granting or refusing certificates under the section, be subject to the direction and control of the State Government).
37. Duration and conditions of licence.-It shall be competent to the Commissioner of Police, subject to the direction and control of the said State Government, to limit, in such certificate as aforesaid, the period for which the licence may be granted, and also to fix such conditions as he may deem necessary for securing the good behaviour of the keepers of the houses and places of entertainment as aforesaidand for the prevention of drunkenness and disorder among the persons frequenting or using the same, and from time to time to vary such conditions, subject to such direction and control as aforesaid; and no licence granted under the Bengal Excise Act, 1909 shall be valid unless it shall contain such conditions as shall have been imposed and shall remain in force for the time being under this section. (Ben. Act V of 1909).
12. Execution Instruction No. 226 in the Manual for the Guidance of Officers of the Excise and Salt Department, which is relevant is extracted hereunder:
226. The following special instructions apply to licenses for the sale of liquor, excise opium or hemp drugs in Calcutta, within the jurisdiction of the Commissioner of Police-
(1) A certificate from the Commissioner of Police as prescribed by Section 36 Act IV (B.C.) of 1866 and Section 19 Act II(B.C.) of 1866 is required before a license can be finally granted and issued bv the Collector of Excise. Calcutta.
(2) If the license is settled by auction, the auction purchaser should apply to the Commissioner of Police for the certificate required immediately after the auction has been held.
(3) If the license is settled without auction, the application to open a shop or hotel, restaurant, etc. should be made, in the first instance, to the Collector of Excise, Calcutta who, if he approves of the application will endorse a certificate to that effect thereon and intimate the fact to the Commissioner of Police. The applicant will then apply to the Commissioner of Police for the grant of the certificate required by sectior 36, Act IV (B.C) of 1866 of Section 19, Act II(B.C) of 1866.
13. A reading of the relevant provisions of the Excise Act shows that the Collector has been granted the power to grant licence to any person for the retail sale of intoxicants during any period not exceeding six months subject to such restrictions and conditions. Rule 5 of the rules postulates grant of licence by the Collector. Under Rule 9 the Collector has been conferred the power to make a list of new sites for grant of licence and for that reason he may hold such enquiry as he deems fit and proper. However, Rule 8 prohibits grant of licence for the sale of liquor at new site if it is within the vicinity of educational institution, traditional place of worship and the hospital for public use. Therefore, the power conferred on the Collector for grant of licence for the retail sale of liquor under Rule 5 is subject to the regulations and restrictions enumerated under Rule 8. Therefore, the question is whether the Commissioner of Police exercising jurisdiction under the Police Act can exercise power conferred on the Collector and pass orders. The answer is in Section 36 of the Police Act itself which enjoins that 'No licence shall be granted under the provisions of (the Bengal Excise Act, 1909), unless the person applying for such licence' produces 'a certificate from the Commissioner of Police stating that a licence may be granted to him for the sale of spirituous liquor or intoxicating drugs, as the case may be, without risk or detriment to the preservation of peace and good order....' Thus, though the Commissioner has been granted the power to issue a certificate regarding preservation of peace and good order without which no licence can be granted, he has no jurisdiction to decide on the question of 'vicinity' which is in the exclusive domain of the Collector. The language of Section 36 of the Police Act is clear. There is no ambiguity. In the instant case the Deputy Commissioner of Police by passing the order dated 9th June, 2006 on the question of 'vicinity' clearly trespassed into the jurisdiction of the Collector of Excise and hence, the order impugned is illegal.
14. Therefore, in my view, for the reasons as aforesaid, the memo No. 2287, dated 9th June, 2006, cannot be sustained and is hereby set aside and quashed. The writ petition is, thus, allowed.
15. No order as to costs.
16. Since it has been submitted on behalf of the petitioners that an amount has been deposited with the Excise authorities for the grant of temporary licence, which he has been unable to obtain, in case licence is granted in future pursuant to the pending application, the amount deposited shall be adjusted by the Collector.
17. Learned Advocates for the parties are permitted to communicate the gist of this order to the respondents and the respondents shall act on the basis of such communication without insisting on production of the certified copy of this order.
18. Urgent xerox certified copy of this order, if applied for, be given to the appearing parties on priority basis.