G.Mohan Das v. The Excise Commissioner And Others

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] ...

MA/2/2022 IA NO: CAN/1/2022, CAN/2/2022 G. Mohan Das ... Appellant Vs.

The Excise Commissioner and others ... Respondent Mr. Gopala Binnu Kumar ... for the appellant Mr.Salim Mohammed ... for the Administration Mrs.Anjili Nag ... for the pvt. respondent March 17, 2022 [GNC] Item No.2 CAN/1/2022 is an application filed in connection to a Mandamus Appeal in relation to an order dated February 16, 2022 passed by the Single Judge of this Hon'ble High Court. The facts of the case are as follows:

(a) A writ petition was filed bearing WPA/178/2021 wherein the petitioner sought certain reliefs that are listed below:- "A) (i) An order be passed directing the respondent No.2 to cancel the bar licence having validity upto 31.03.2022 issued in respect of Bamboo Bar & Restaurant on an application by S.Sree Kumar (since deceased), husband of the respondent No.3 who died on 21//04/2021 in terms of the Andaman & Nicobar Islands Excise Regulation, 2012 on the basis of application dated 26/04/2021 submitted by the petitioner.

(ii). An order be passed directing the respondent No.2 not to entertain the representation dated 13/05/2021 submitted by the respondent No.3 claiming to be the wife of S.Sree Kumar for allowing her to operate the said Bamboo Bar & Restaurant and to transfer the said business in her name which is against the provisions of Andaman & Nicobar Islands Excise Regulations, 2012.

(iii). An order be passed directing the respondent No.2 to allow the petitioner to carry the said business of Bamboo Bar & Restaurant with any terms and conditions."

By an order dated July 28, 2021, an interim order prayed for by the writ petitioner was rejected. However, the Court directed the respondent no.2 therein to consider and dispose of the representation of the respondent no.3.

(b).

Subsequently when the matter was taken up, the Division Bench of this Court directed the portion of the order passed by the Single Judge in relation to consideration of the representation of the respondent no.3 to be incorrect and set aside that portion of the order.

(c).

Subsequently, the respondent no.2 issued a notice dated 31st January, 2022 calling for a hearing in this matter with regard to the representation of the respondent no.3. The petitioner was also called for the said hearing as he had raised an objection with regard to continuation of the bar licences of the respondent no.3.

This notice has been challenged in this writ petition wherein the Single Judge disposed of the writ petition holding as follows:- "Having heard Mr. Gopala Binnu Kumar, learned counsel for the petitioner and Ms. Anjali Nag, learned counsel for the private respondent, this Court is of the clear view that the Division Bench of this Court in its order dated September 10.2021 passed in M.A. 18 of 2021 only set aside the direction passed by the Co-ordinate bench of this Court dated July 20, 2021 for a specific reason. The reason as recorded was that there was no proceeding taken out by the respondents. While rejecting the prayer for restraint on the respondents from considering the representation of this petitioner, the Co-ordinate bench could not have directed actual consideration of the representation filed by the private respondent, as per the Division Bench."

We have heard counsel appearing on behalf of the parties and perused the materials on record.

The argument raised by Mr. Gopala Binnu Kumar, counsel appearing for the petitioner that a fresh notice of hearing could not have been given and the same is within the teeth of the Division Bench order is nothing but sophistry and the same is required to be accordingly rejected.

On a plain reading of the order passed by the Division Bench it is clear that the Division Bench only set aside the portion of the order that was in the nature of a writ of mandamus in favour of the respondent no.3 on the ground that it was not the respondent no.3 that had filed the writ proceeding. The Division Bench order nowhere contemplates that the authorities on their own could not consider the representation of the respondent no.3 nor in any manner forbade the authorities to consider the representation of the respondent no.3. This is exactly what has been held by the Single Judge and we see no reason to interfere with the said order. As directed by the Single Judge, the petitioner also has a right to be heard in the hearing to which notice has been given to him. In light of the same, this appeal along with all the interlocutory applications bearing CAN/1/2022 and CAN/2/2022 are disposed of.

( Shekhar B. Saraf, J. ) ( Kesang Doma Bhutia, J. )