The Judgment of the Court was delivered by

Dipankar Datta, J.:— In response to an advertisement dated November 24, 2004 inviting applications for grant of foreign liquor off shop licence, inter alia, within the local limits of Burdwan Municipality, the petitioner had offered his candidature vide application dated December 14, 2004. It was accompanied by the requisite fees of Rs. 12,000/-. The petitioner's application having been found to be in order, he was called upon to participate in a lottery along with other eligible candidates. Fortune smiled on the petitioner at the draw of lots. He was selected for grant of licence and called upon to indicate the site of the proposed ‘off shop’. Two sites were indicated by him. Enquiry was conducted in respect of the first site by the Deputy Excise Collector, Sadar Range, Burdwan East Area, Burdwan. In his report dated September 27, 2005, the enquiry officer observed that the proposed site was free from any restriction under Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereafter the ‘New Sites Rules’). The District Magistrate and Collector, Burdwan (hereafter the Collector), being the licensing authority, thereafter confirmed to the petitioner vide memo dated November 14, 2005 that a licence is being granted to him. Licence in Form X bearing no. 17/2005 dated November 14, 2005 was ultimately issued. The petitioner started business a few days thereafter and till almost the middle of 2011, there was no interference from any quarter. This position has been admitted by the official respondents even in their affidavit-in-opposition to the writ petition.

2. The records reveal lodging of complaints by the respondents 4 and 5, beginning from August, 2011. The first one dated August 11, 2011 was addressed by the respondent 4 and others to the President, Burdwan Minority Cell. The second one dated September 5, 2011, at the instance of the same complainants and bearing almost similar contents as the first one was addressed to the Collector. The respondent 5 was the author of the third complaint dated October 13, 2011, which was addressed, among other public authorities, to the Collector.

The English translations of the second and third complaints referred to above, read as follows:

“Date: 05.09.2011

I, Osman Gani Molla, Goda, Burdwan work in the Burdwan Court Compound premises and so I go to offer my namaz in Court Compound Mosque.

In the year 2006, Badamtala Foreign Liquor Shop was set up within 900-950 feet of our Court Compound Mosque, without complying with any rules, but we did not raise any objection thereto at that time because we, that is to say, those of us who go to offer prayers, were not aware of the rule then, Memo No. 527 Dt. 02/04/04, which says there will not be any liquor shop within 1000 feet from the mosque. We have given an objection on 11/8/11.

I give my objection again or make a prayer that the shop be removed elsewhere. I make a prayer that the shop be removed at other place because it is hurting our religious sentiment.

Hence, Sir, we make a prayer and give our objection that the Badamtala Foreign Liquor Shop is hurting our religious sentiment. The Badamtala Foreign Liquor Shop be removed at some other place for the interest of public.”

“Date: 13/10/11

This is to submit that I, Syed Mussarat Ali of Bara Balidanga, Golahat, Bardhaman, regularly offer namaz at Court Masjid.

On 8/10/11 having gone to offer Friday namaz I received a leaflet wherefrom I came to know that about four years ago a foreign liquor shop has come up at Badamtala within 850 feet of this Court Masjid. It is stated in the Government Order that no liquor shop could come up within 1000 feet (from the mosque).

Although I am not personally inconvenienced, I am not raising here my personal interest. Being concerned about the Muslim Community, my contention is why should the liquor shop be near our mosque? The liquor shop being located near our mosque means our religion is being denigrated.

Hence, Sir, I humbly appeal to you to have the foreign liquor shop at Badamtala removed elsewhere from Court Masjid as per Government Rules.”

3. The complaints were directed by the Superintendent of Excise, Burdwan East Area to be enquired into by the Deputy Excise Collector. The report dated September 21, 2011 of the Deputy Excise Collector in its entirety, is extracted below:

Sub: Inquiry Report on objection of one Osman Gani Mollah, relating to location of one F.L off shop of Sri. Asutosh Ghosh at Mouza: Nari, under Burdwan Municipality.

Sir,

I have been directed by your good honour to inquire into the petition containing objection surfaced by one Osman Gani Mollah who offers ‘Namaz’ on a regular basis in a ‘Masjid’, located in a close proximity to one F.L Off shop at the aforenoted place of subject. The distance of the shop from the ‘Masjid’ as noted in that very petition is within 1000.0 ft. The petitioner has reiterated that grant of an excise license at such a distance is not desirable in terms of provision of Notification 527 EX dtd. 02.04.2004 He further mentioned that existence of the liquor shop at such a close distance from the age - old ‘Masjid’ has been hurting their religious sentiment and the same may be ordered for shifting to other place.

Based on the contents of the petition, the inquiry has been made. The findings of the same are enumerated below:

1. As the petitioner had not mentioned his address, he could not be contacted for further queries, rather the stress was given on his prayer to verify whether it was genuine or not;

2. At first the distance between the two concerned points i.e the Masjid and the F.L ‘Off’ was measured and found the same as 900.0 ft. (app). The measurement was done as per provision of Govt. Notification 411Ex. Dtd: 04.03.2005;

3. The license was granted to Mr. Asutosh Ghosh vide license No. 17/2005 dtd: 14.11.2005 at mouza: Nari, Dag No: 395/3891, Kh. No. 1713 under ward No. 5 of Burdwan Municipality;

4. Before granting the license regarding suitability of the site proposed by the winner of the lottery held for the purpose of granting some excise licenses in 2005, an inquiry was made under provisions of Govt. Notification 800 Ex dtd: 29.07.2003 as amended upto to the time of inquiry;

5. It may be borne into mind that with advent of Notification 527Ex dtd: 02.04.2004, that restriction as imposed under rule 8 of 800 Ex is attracted in the event of granting an excise license for retail sale of intoxicants if the proposed site is situated within a distance of 1000.0 ft. from a traditional place of public worship;

6. Traditional place of public worship has been defined under the said notification considering the age of that place beyond 20 years and during inquiry it is considered that whether puja/prayer etc. take place there on a regular basis or not;

7. As regards to this instant case the masjid concerned carries an age of above 20 years and religious people offer ‘namaz’ regularly. It may be defined as a traditional place of public worship.

The aforesaid findings with the original inquiry report made during maiden grant of the license is submitted before you for information and taking necessary action.

4. A further enquiry for the purpose of measuring the distance between the ‘off shop’ and the mosque was conducted by the officers of the Land Reforms Department of the Government of West Bengal on November 24, 2011. The distance between the mosque and the ‘off shop’ was found to be 1050 ft. and 962 ft. through ways ‘A’ and ‘B’ respectively. The report of enquiry was forwarded by the District Land and Land Reforms Officer, Burdwan to the Additional District Magistrate (G) & Collector (Excise), Burdwan East Area [hereafter the Collector (Excise)], vide memo dated December 13, 2011.

5. Based on the above reports, the petitioner was notified of dates of re-measurement of the distance between the ‘off shop’ and the mosque and hearing in connection with the complaint that had been lodged by the respondent 4. The petitioner participated in the hearing and questioned the authority of the Collector (Excise) to even look into the complaint of the respondent 4 after lapse of 6 (six) years since issuance of the licence. The Collector (Excise) did not feel persuaded to agree and proceeded to pass an order dated April 10, 2012. It reads as follows:

ORDER

Whereas, it appears that complaints and protest have been raised by Md. Osman Gani Molla, Sayed Mussarat Ali and others against the functioning of the retail sale of foreign liquor at Badamtala Mahalla, Ward No. 5 of Burdwan Municipality under the land-scheme of Dag No. 663(Hal), Mouza - Nari, J.L No. - 70, Kh. No. 1713, P.S-Burdwan, in the Dist. of Burdwan,

And whereas, it is revealed from the enquiry that said complaints and protest are genuine and free from ulterior motives,

And whereas, it is also found on enquiry that the said site is not free from restrictions of Rule 8 of the Excise Deptt. Nft. No. - 800-Ex dt-29.07.03 as amended upto date, owing to the existence of one religions institution, named Burdwan Court Masjid traditionally religious place for the public and one primary school affiliated to District Primary School, Council, Burdwan and recognized by the Govt. of West Bengal,

And where the license of the said foreign liquor is also not free, owing to the existence of the above mentioned two institutions established more than twenty years ago and both within the restricted distance of 1000 (one thousand) fts. from the site above,

And where continuance of retail sale of foreign liquor at the side under Dag No. - 666 (Hal), Mouza - Nari, J.L No.-70, Kh. No.-1713, P.S - Burdwan, in the Dist. Of Burdwan, shall be in violation of Rule - 62 of the Consolidated Rules made under Sec. - 85 of the B.E Act. 1909, published vide, Excise Deptt. Nft. No. 595-SR dated 30-03-1915.

As such, it is hereby ordered to keep the Foreign Liquor ‘OFF’ Shop located at Dag No. 666(Hal), Mouza-Nari, J.L No. - 70, Kh. No. - 1713 under Burdwan Police Station in the Dist. Of Burdwan closed in terms of section - 26(1) of the Bengal Excise Act - 1909 as amended with immediate effect and until further order.

(bold font in original)

6. The petitioner by presenting this writ petition seeks interference of this Court in the order dated April 10, 2012.

7. Since there was some controversy as to whether the petitioner did receive the notice prior to measurement of the distance between the mosque and the ‘off shop’, by an interim order dated July 4, 2012 I had directed a further measurement in the presence of all concerned. The measurement report that was filed in Court did not contradict the reports referred to above. The parties thereafter having exchanged their affidavits, the writ petition was heard on diverse dates.

8. Realising that the process of decision making leading to the order impugned suffers from various infirmities, which I propose to indicate hereafter, both Mr. Mazumder and Mr. Kar, learned advocates representing the official and the private respondents respectively had conceded that it is a fit case for remand and prayed that the Court may order accordingly.

9. Having considered the provisions of law applicable to the problem at hand and the decisions cited at the bar, I have no hesitation in my mind that the order impugned cannot be sustained since the process of decision making is vitiated by gross errors of law touching upon the jurisdiction of the Collector (Excise) to make such order. In the process it would also fall for my consideration as to whether a remand is called for or not, on facts and in the circumstances.

10. The primary ground of challenge urged by Mr. Ghosh, learned advocate for the petitioner was that the Collector (Excise) assumed a jurisdiction which he did not possess and the order impugned ought to be set aside only on the ground that he acted without jurisdiction.

11. From the factual narrative preceding the impugned order, it is clear that the Collector issued the memo dated November 14, 2005 conveying to the petitioner the decision to grant him licence, whereafter issuance of the licence in Form X followed. The licence contained various terms and conditions and since there was no breach of the same, the licence was renewed year after year as and when renewal fell due. However, as a natural consequence of the impugned order of the Collector (Excise), which was not stayed at the interlocutory stage, the petitioner has been forced to close down his business.

12. The first question that arises is could the Collector (Excise) entertain the complaints lodged by the respondents 4 and 5. A survey of the relevant provisions of law clears the position that the Collector (Excise) could not have entertained the same.

13. Section 8 of the Bengal Excise Act, 1909 (hereafter the Act) contains provisions relating to ‘Control, Appeal and Revision’. In terms of sub-section (1), in doing anything or taking action under the Act, the Collector shall be subject to the control of the Excise Commissioner and of the State Government, and in particular cases, also of the Commissioner of the Division. Sub-section (2) provides that orders passed under the Act or any rule framed thereunder shall be appealable in such cases to such authorities and under such procedure as may be prescribed by rules made under Section 85(2)(c) of the Act. Subsection (3) is the repository of the power of the State Government to revise any order passed by the Collector, the Excise Commissioner or the Commissioner of the Division.

14. Rule 3 of the Consolidated Rules framed under Section 85 of the Act (hereafter the Consolidated Rules), inter alia, provides the forum of appeal against an order passed by the Collector or the Additional District Magistrate appointed under clause (b) of sub-section (2) of Section 7 of the Act. In terms of the said rule, the Excise Commissioner is the appellate authority and Rule 5 thereof requires presentation of an appeal within 1 (one) month from the date of the order appealed against.

15. Assuming that licence had been granted by the Collector in favour of the petitioner contrary to the terms of Rule 8 of the New Sites Rules, any person feeling aggrieved thereby could have carried such order of the Collector in appeal before the Excise Commissioner within a month from date thereof. Admittedly, no appeal was filed. In the complaint dated September 5, 2011, the complainants alleged that although the petitioner was granted licence to run the ‘off shop’ in 2006, they could not lodge any objection then because they were ignorant of the legal provisions. The plea of ignorance of law is no excuse (ignorantia juris non excusat). In Swadeshi Cotton Mills Co. Ltd. v. Govt. of U.P: (1975) 4 SCC 378, the Supreme Court held that “Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation. Therefore the argument that the appellant did not know the true legal position is not one that can be accepted in law”. The remedy of appeal that a party has under a statute against an official act or order, which according to him is contrary to law, is lost forever once limitation to file such appeal sets in without there being any provision in the concerned statute enabling the appellate authority to condone the delay. Proceeding on the assumption once again that the appellate authority has the power to condone the delay in presentation of an appeal under Rule 3 of the Consolidated Rules in line with the provisions of Section 5 of the Limitation Act, 1963 (since its applicability is not barred by express provision or by necessary implication), it is doubtful as to whether the respondent 4 and the co-complainants (even if they had presented an appeal in August, 2011) could be heard taking shelter behind their own convenient ignorance. The plea of ignorance of law may not amount to sufficient cause so as to enable condonation of delay in presentation of such appeal bearing in mind the statement of law in Swadeshi Cotton Mills (supra).

16. Be that as it may, since the respondent 4 and the co-complainants did not challenge the grant made in favour of the petitioner in appeal, the Collector (Excise) committed gross jurisdictional error in passing the impugned order as if he were sitting in appeal over the decision of the Collector to grant licence.

17. The further question in this regard is could the Collector (Excise), based on the complaints that were received from the respondents 4 and 5, review the order of the Collector. The answer is an emphatic ‘NO’. It is settled law that unless the power of review is conferred by statute on an administrative authority, it has no inherent power of review. Reference in this connection may be made to the decisions of the Supreme Court in Harbhajan Singh v. Karam Singh: AIR 1966 SC 641 and Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji: (1971) 3 SCC 844. As has been noticed above, the power of review of an order of, inter alia, the Collector is vested with the State Government. The licencing authority under the Act and the rules framed thereunder has a limited power of cancellation of licence (based on satisfaction that information furnished in the application for licence is wrong, or that the licencee is guilty of offering bribe to an official of the excise department), which is quite different from a power of review to ascertain whether grant was correctly made or not. Mr. Mazumder referred to the application form of the petitioner, where he answered a query regarding citus of the proposed shop within the prohibited distance in the negative. According to him, that was false information given by the petitioner and hence the Collector (Excise) acted within jurisdiction. The submission could have been accepted, if there had been no enquiry by the Deputy Excise Collector and licence was issued to the petitioner solely based on such statement made by him. Once the departmental official on enquiry found that the proposed site was not within the prohibited distance and the licensing authority accepted such finding and granted licence, it amounted to acceptance of the petitioner's statement and a post-facto enquiry report (based on non-entertainable complaints) revealing otherwise could not have been made the basis of a review. Exercise of review power by the Collector (Excise) while making the impugned order, if one wishes to view it from that angle, is clearly ultra vires.

18. Before I proceed to record my reasons as to why the order impugned is unsustainable even on merits, it is necessary to deal with a submission advanced by Mr. Ghosh, relying on an unreported decision of a learned Judge of this Court in Apurba Kishor Das v. State of West Bengal: W.P No. 628 of 2011. According to him, the ‘off shop’ of the petitioner having been functional for 6 (six) years prior to the impugned order, it became an ‘existing site’ within the meaning of Rule 3(iii) of the New Sites Rules and the tests in Rule 8 thereof, which are required to be satisfied by applicants proposing to run liquor shops at ‘new sites’ [as defined in Rule 3(viii)], could not have been applied to the petitioner.

19. I find the submission to be not sound. The words ‘existing site’, finding place in Rules 7, 14, 15 and 16 of the New Sites Rules, and as defined in Rule 3(iii) thereof, in the context would mean the liquor shops, having due licence, which were existing as on July 30, 2003 i.e the date of enforcement of the New Sites Rules. Any liquor shop that is granted licence after July 30, 2003 at a ‘new site’, for the purpose of the New Sites Rules, continues to remain a ‘new site’ irrespective of the number of renewals of licence that are granted, should there be a pending challenge to the grant of licence on grounds traceable in Rule 8 or any other rule. The decision in Apurba Kishor Das (supra) does not lay down any law having the force of a binding precedent; rather the writ petition appears to have been disposed of on consideration of the letter dated January 30, 2012 of the Excise Commissioner wherein the location of the liquor shop at Garfa Main Road was accepted by such Commissioner as an ‘existing site’.

20. Now, turning attention to the impugned order, reference to violation of Rule 62 of the of the Consolidated Rules by the petitioner and Section 26 of the Act being the source of the power of the Collector (Excise) to order closure appeared to me to be quite strange. In reply to a query posed by me, Mr. Mazumder in course of his arguments conceded that the Collector (Excise) erroneously referred to Rule 62 of the Consolidated Rules and Section 26 of the Act. According to him, validity of an order does not depend upon the section mentioned therein and mere wrong reference of a section would not invalidate the order if it is found that the order could be validly passed under any other section. He relied on the decision of the Supreme Court in MIG Cricket Club v. Abhinav Sahakar Education Society: (2011) 9 SCC 97 in this regard and submitted that the order impugned, though it refers to certain inapplicable provisions, could be sustained since the Collector (Excise) otherwise has the power under the Act and the rules framed thereunder to order closure.

21. The proposition of law cannot be disputed but the submission of Mr. Mazumder appears to me to be one in desperation.

22. Rule 62 of the Consolidated Rules embodies the principles to be observed in granting licences for a liquor shop. Clause (c) of Rule 62 provides that as far as practicable, the Collector in granting licences for new shops shall have regard to the principle that “a liquor shop should never occupy a position to which the near neighbours object on grounds which, upon enquiry, appear to be sufficient and free from malice or ulterior motives”.

23. Finding no. 1 of the report of the Deputy Excise Collector dated September 21, 2011 is testimony to the enquiry, which proceeded in the direction of the principle contained in Clause (c) of Rule 62. The second paragraph of the impugned order is nothing but an assertion thereof. It is, therefore, too late in the day for Mr. Mazumder to contend that reference to Rule 62 was erroneous. On the contrary, reference to Rule 62 was not made by mistake but to draw sustenance for the impugned order, although it had no applicability. The principle contained in clause (c) had to be given regard prior to grant of licence and that too if the objection came from the ‘near neighbours’. From the tenor of the complaints that the respondents 4 and 5 had lodged, it seems to be clear that they cannot be comprehended as ‘near neighbours’. At the stage prior to grant of licence, there was no objection from any one including the ‘near neighbours’. The objection contemplated in clause (c) could be lodged only by the ‘near neighbours’ and not by any member of the public and thus the exercise of finding out whether the complaint of the respondent 4 (who did not claim himself to be a ‘near neighbour’) was genuine and free from ulterior motives, has to be held futile. Running of the ‘off shop’ by the petitioner did in no manner violate Rule 62 and the finding given by the Collector (Excise) in this regard has to be branded perverse.

24. Reference to Section 26 of the Act by the Collector (Excise) also does not appear to be one without a purpose. The complainants had alleged that running of the ‘off shop’ within close proximity of the mosque was hurting their religious sentiments, although personally they had no issue. Section 26 empowers the District Magistrate or a Sub-divisional Magistrate to close down a shop, in the manner provided, for such period he may think necessary for preservation of public peace. It can legitimately be inferred from the contents of the complaints read with the impugned order that the Collector (Excise) directed closure of the ‘off shop’ of the petitioner to avert any possible communal disharmony and to maintain law and order, but his approach to the problem was entirely flawed. Section 26 contemplates a temporary closure for a just cause and not a full closure, as ordered. Non-application of mind is too apparent to be overlooked.

25. The valiant effort of Mr. Mazumder to sustain the impugned order of closure was next demonstrable in his reference to Sections 42 and 43 of the Act. Relying on the Constitution Bench decision in State of Punjab v. Devans Modern Breweries Ltd.: (2004) 11 SCC 26, he contended that none has a fundamental right to trade in liquor and the provisions of the Act [read Section (42)(1)(c)] sufficiently empower the Government to cancel or suspend a licence already granted, should the licencee be found to have acted in breach of the terms and conditions of the licence. A licence could also be withdrawn under Section 43 of the Act for any cause other than those mentioned in Section 42 thereof.

26. Mr. Mazumder referred to an affidavit of the petitioner dated December 13, 2004, which was filed by him before licence was granted as well as to his application form. It was contended that the petitioner agreed to cancellation of the licence, if granted to him, in the event any information furnished by him in his application is found incorrect or inaccurate in future. Since the ‘off shop’ was within the prohibited distance and the petitioner in the application had given incorrect information, it was contended that that was good reason to direct closure.

27. According to Mr. Mazumder, the licence granted in favour of the petitioner is a nullity since it violated Rule 8 of the New Site Rules from the very beginning. Paragraph 37 of the decision of the Supreme Court in State of Orissa v. Mamata Mohanty: (2011) 3 SCC 436 was relied on for the proposition that “if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order”.

28. The closure order, he finally contended, ought to be sustained having regard to the emerging fact of the ‘off shop’ being within the prohibited distance mentioned in Rule 8 of the New Sites Rules and the endeavour of the authorities to abide by the legal provisions.

29. Mr. Kar while echoing the submission of Mr. Mazumder invited my attention to Rule 10 of the West Bengal Excise (Selection of Person for Grant of Licence at New Sites for Retail Sale of Intoxicants) Rules, 2004. Such rule ordains that a licence shall be cancelled if it is subsequently found at any stage that the applicant does not fulfil any of the conditions of the licence or has furnished wrong information in his application.

30. I am afraid, I cannot agree. There is no material to conclude that grant of licence in favour of the petitioner in November, 2005 was illegal and, therefore, void ab initio. Grant of licence in favour of the petitioner in respect of the offered site was preceded by an enquiry conducted by the Deputy Excise Collector. The report dated September 27, 2005 submitted by him refers to a local enquiry that was conducted, which did not reveal the existence of any traditional place of worship, school or hospital within the prohibited distance of 1000 ft. from the proposed site. The report was acted upon by the Collector. There is a presumption in law that official acts are regularly performed and the burden is on the person who claims to the contrary and seeks a different conclusion to be reached to dislodge such presumption by proper rebuttal. That burden could not have been discharged by taking measurement of the distance between the ‘off shop’ and the mosque more than half a decade after licence was granted. Here, the Collector (Excise) proceeded to pass the closure order based on the recent reports regarding measurement of the distance between the site of the ‘off shop’ and the mosque; however, any finding to the effect that the report of the Deputy Excise Collector dated September 27, 2005 did not reflect the correct state of affairs regarding distance and was thus not worthy of being acted upon, is conspicuous by its absence. There is no warrant for the proposition that the initial measurement was wrong and the current measurement is correct. One does not know for certain whether over the last 6 (six) years when the licence granted in favour of the petitioner was operative, any new connecting road has come up or not reducing the distance between the ‘off shop’ and the mosque. At least there is no finding that the situation prevailing in September, 2005 (when the initial enquiry was made) has not effectively changed six years later when the subsequent enquiry was made.

31. The decision in Mamata Mohanty (supra), in view of the facts as noticed above, is thus clearly distinguishable.

32. Moreover, the plea of breach of the terms and conditions of the licence at the instance of the petitioner (alleged for the first time in course of arguments and not even taken in the affidavit-in-opposition of the official respondents), is thoroughly misconceived. Copy of the licence is an annexure to the writ petition. It has not been shown to the Court which particular term and/or condition of the licence had been breached by the petitioner, warranting issuance of the closure order. The jurisdictional fact for taking recourse to Section 42(1)(c) of the Act did not exist and, therefore, any effort to sustain the order impugned by referring to it must be held to be plainly unacceptable.

33. Much has been argued by Mr. Mazumder that the petitioner cannot complain of breach of his fundamental right under Article 19 of the Constitution. He is correct, but did the petitioner by engaging himself in liquor trade forfeit his other fundamental rights guaranteed under Articles 14 and 21 of the Constitution? Can his right to livelihood be taken away in an arbitrary and highhanded manner? It does not require much of a discussion to answer these questions. The guarantees have been trampled upon violating all constitutional norms and principles warranting judicial interdiction.

34. One other point has been argued by Mr. Ghosh, which I may place on record. Location of the mosque as well as a primary school within the prohibited distance was never an issue when the enquiry preceding grant of licence was being conducted. While location of the ‘off shop’ within 1000 ft. of the mosque was raised for the first time in August, 2011, location of the primary school also within the prohibited distance became an issue in course of measurement of distance upon receipt of the complaint of the respondents 4 and 5. If at all the proposed site was not suitable in view of Rule 8 of the New Sites Rules, the official respondents were obliged to cause enquiry in respect of the other site that was proposed by the petitioner. Since enquiry in respect of the site that was first proposed led to the grant of licence, the necessity for enquiring into the location of the other did not arise. The grant of licence and the successive renewals were in itself a recognition of the site of the petitioner's ‘off shop’ by the official respondents that he is free to carry on business therefrom, which being in the nature of a promise was acted upon by the petitioner by altering his position. In the circumstances, the principle of promissory estoppel does get attracted.

35. I am of the opinion that since the impugned order dated April 10, 2012 has been found to be indefensible on grounds discussed above, whether the doctrine of promissory estoppel gets attracted need not be examined here.

36. The verdict having been adjournment upon conclusion of hearing, Mr. Kar intended to cite a decision that he came across thereafter and which, according to him, had a bearing on the writ petition's outcome. On his prayer, the earlier order was recalled and the writ petition had been placed for further hearing. It was then that Mr. Kar cited the decision in Kanthal Bagan Bazar O Byabasayee Samity v. State of West Bengal: (2010) 1 WBLR (Cal) 59, in support of his submission that the Collector did not act without jurisdiction in entertaining the complaints of the respondents 4 and 5.

37. It is true that the learned judge in Kanthal Bagan (supra) was called upon to decide the point as to whether the petitioners could seek a mandamus upon the Collector to entertain their complaint of grant of licence in favour of the private respondent, despite she not having complied with the stringent conditions set by the New Sites Rules, and that the point was answered in favour of the petitioners. The stand of the private respondent was that the New Sites Rules did not contain provisions similar to those contained in the earlier rules of 1993 providing opportunity for lodging of complaints and, therefore, it was evident that the State Government had taken a conscious decision that there was no need for any notice to be issued to the public or to any representative of the people or other official prior to issuance of licence under the Act. The learned judge repelled the contention in the following words:

“7. It is possible to view the situation as the private respondent suggests. It is equally possible to view it from another perspective. The 1993 Rules specified that notices were to be published to the public at large and to specified authorities referred to therein. That may have implied with upon the notice period expiring, and no objection being received by the Collector, it would be deemed that there was no objection in fact to the grant of the proposed licence. The other way of looking at it would be that the small window opened for objections at the stage prior to the issuance of the licence has been done away with; objections may now be made at any stage and upon a just cause.

8. In the 2003 Rules not containing the same provisions, it would not imply that members of the public cannot object to the issuance of a licence or the continuance thereof. It might only imply that the complaint that had to be made prior to the grant of the licence may now be made at any stage. It would be unreasonable to construe the omission of the provision in the subject Rules to mean that no matter what the violation, no person can complain of such violation at all.

11. It cannot be said that there would be a set of rules and the authorities would have the sole prerogative to decide as to whether the rules had been complied with in a particular case without any person having any right to make a representation to the appropriate authority. The removal of sub-rules (3) and (4) of Rule 9 of the 1993 Rules in its avatar of 2003 would not support the argument made on behalf of the private respondents that the new Rules bar the right of any person to complain of a licence issued in derogation of the conditions stipulated in Rule 8 thereof.”

38. The last sentence of paragraph 8 read with the first sentence of paragraph 11 of the decision in Kanthal Bagan (supra) is re-assertion of the fundamental principle of law embodied in the maxim ubi jus ibi remedium. The sense of delivering justice, in the given facts, stood enlarged to address the concern expressed by the petitioners in respect of non-adherence to the statutory provisions by the public authorities in granting licence to the private respondent and correction of public power to promote the cause of justice.

39. Although the Supreme Court in Devans Modern Breweries Ltd. (supra), cited by Mr. Mazumder, has reiterated that the matter may be referred to a larger Bench if a coordinate Bench does not agree with the principles of law enunciated by another Bench, it has also been ruled there that “binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub-silentio or per incuriam without assigning specific reason therefor” (underlining for emphasis by me).

40. I would read the aforesaid passage as opening a window for the Bench of a Court to assign specific reasons for not applying the law laid down by a coordinate Bench, on application of the sub-silentio doctrine.

41. The excise laws of the State expressly provide a remedy to a person aggrieved by an illegal grant of license. Unfortunately, the provisions of Section 8 of the Act and Rule 3 of the Consolidated Rules, discussed above, providing an appellate remedy to such person aggrieved do not appear to have been placed before the learned judge while His Lordship decided Kanthal Bagan (supra). Attention of His Lordship was also not drawn to Rule 62 of the Consolidated Rules, extending scope to the ‘near neighbours’ of lodging an ‘ulterior motive and malice free sufficient objection’ prior to a grant being made. The resultant omission led the Court to carve out a remedy by an interpretative exercise taking into consideration only parts of the earlier rules of 1993 vis-à-vis a particular rule of the New Sites Rules, based on the opinion that a violation should never be allowed to remain un-checked.

42. The right to object to grant of licence, at the pre-grant or post-grant stage, was never non-existent and the procedure for hearing public grievances at the pre-grant stage has now been incorporated in Rule 9 of the New Sites Rules w.e.f February 23, 2010. In any event, Kanthal Bagan (supra) does not lay down the law that at any time after grant of licence, a person aggrieved may choose his own time to file a complaint. In my considered view, the ratio of Kanthal Bagan (supra) has to be read and understood in the light of the laws that were taken into consideration and would not assist the respondents 4 and 5, being a subsilentio ruling.

43. However, having regard to the above discussions, I do not see reason to accept the prayer of Mr. Mazumder and Mr. Kar to remit the matter to the Collector (Excise) for fresh consideration. A remand could have been ordered if an error in exercise of jurisdiction were committed warranting interference and fresh consideration of an issue upon correction of such error, not in a case where jurisdiction is assumed without the support of the statutory provisions and an order is passed without jurisdiction. The prayer stands refused.

44. In the result, I allow the writ petition ordering that the impugned order dated April 10, 2012 stands quashed. The official respondents shall permit the petitioner to reopen his ‘off shop’ immediately but not later than four three weeks from date. Within the said period, the official respondents shall renew the licence of the petitioner (treating the same to have been granted in valid exercise of power) upon payment of usual charges. However, the petitioner shall not be under any obligation to pay any duty or charges for the period he was unable to carry on business because of the impugned order dated April 10, 2012.

45. It is made clear that the official respondents shall not be precluded from proceeding against the petitioner in accordance with law, if the occasion therefor arises in future, for alleged violation(s) of statutory provisions or terms and conditions of the licence, which have not been dealt with by this Court while deciding this writ petition.

46. There shall be no order for costs.

Urgent photostat certified copy of this judgment and order, if applied for, shall be made available to the applicant at an early date.