Dulumoni Talukdar vs State Of Assam And 4 Ors

The Court proceedings have been conducted through Video Conference.

Heard Mr. N.J. Khataniar, learned counsel for the petitioner. Also heard Ms. M. Bhattacharjee, learned Government Advocate, Assam as well as

Mr. K.P. Pathak, learned standing counsel, Excise Department, appearing for the respondents.

Though no affidavits have been exchanged apart from the writ petition, certain instruction received by the Ld. State Counsel has been placed on

record and considering the nature of the case, as also agreed by the parties, this Court also felt that the matter can be disposed of at this stage without

going further into the matter.

The grievance of the petitioner in short is that he was given a permit to run a IMFL “ON†shop in his licensed premises at Hardik Restaurant,

Nagar Gaon (Barbang) in Bajali District (newly created). The said license was granted on 26.02.2021 and thereafter, the petitioner had been running

the said shop. However, suddenly without any prior notice one Extra Assistant Commissioner verbally directed the petitioner to close down her shop

until further order. The petitioner was informed that such verbal order for closure was made under instruction from the Deputy Commissioner, Bajali.

The petitioner in obedience of the said direction closed her shop but being aggrieved submitted a representation before the Deputy Commissioner,

Bajali to allow her to run her shop, which however, was turned down on the ground that there is public resentment against running of the liquor shop.

In other words, the impugned oral direction to close the liquor shop was on the purported ground of public resentment.

According to the petitioner, the aforesaid procedure adopted by the authorities is not in accordance with law, as law does not contemplate closure

of a IMFL shop for which due permit was given by the authorities concerned, without hearing or conducting any inquiry in that regard.

As regards this allegation made, the instruction received by Ms. M. Bhattacharjee, learned Government Advocate, representing the Deputy

Commissioner is to the same effect. In the said instruction dated 10.06.2021, it has been mentioned that the Assistant Commissioner along with Excise

Inspector, Pathsala Circle, President of the Barbang Gaon Panchayat had jointly visited the site of IMFL “ON†Hardik Restaurant and on

inspection it was found that the nearest residential house on the west of the shop was found to be 109 meters away and on eastern side the nearest

residential house was 717 meters away and on the north and south side of the said restaurant, there is a paddy field and on the south-west, the office

of the Block Development Officer is located and there is also a school, which is 717 meters away. The joint inspection team after inquiry made the

following observations:

The IMFL “ON†Hardik restaurant complies rules 289(2) as there is no any place of public worship or educational institution or Hospital within

150 meters.

The No Objection certificate for the IMFL “ON†Hardik restaurant appears to be issued by President, Barbang Gaon Panchayat without any

consent from the owners or occupiers of the neighborhood.

On consideration of amendment of Rule 295 dated 31st December 2018 the IMFL “ON†Hardik restaurant fails to comply no objection as the

paddy field owner (Lalita Choudhury and Saraswati Chodhury) located near to the shop has objection against running of IMFL “ON†shop.

(petition enclosed)

Accordingly, it has been submitted that on due inquiry it was found that it was not desirable to have the said IMFL shop in the aforesaid area and

there were objections from the neighbours and as such, the aforesaid direction was issued to close her shop.

Ld. Counsel for the petitioner, however, disputes the aforesaid allegations and submits that necessary enquiry was held before issuance of the

licence and there was no objection from any quarter. It has been also stated that only persons residing within a distance of 75 m of the shop can raise

any objection.

Mr. K.P. Pathak. Ld. Counsel for the Excise Department also submits that as per his instructions, there was no objection from anyone residing

within 75 m at the time of the license.

Having heard the learned counsel for the parties and on perusal of the materials on record, this Court would not like to make any observation as to

whether it is desirable or not to have the aforesaid IMFL shop in the premise of the petitioner or whether there is any issue of public disturbance.

However, the fact remains that the petitioner was issued a valid license to run the said IMFL shop which has not yet been recalled or cancelled till

date. As far as cancellation or suspension of any valid license issued is concerned, one may find reference to Section 52 of the Assam Excise Act,

2000, wherein it has been provided as hereunder:

“52.  (1) The District or Sub-Divisional Magistrate may, by notice in writing to the licensee, require that any shop in which any intoxicant is

sold by retail shall be closed at such times or for such periods as such Magistrate may deem necessary for the preservation of the public peace.

(2) If any riot or unlawful assembly is apprehended or occurs in the vicinity of any such shop, any Magistrate or any Police Officer above the rank of

constable who is present may order the person in charge thereof to keep it closed for such period as the Magistrate or Police Officer may think

necessary:

Provided that no shop shall be kept closed under this sub-section for a longer period than 48 hours without the order of a Magistrate.

(3) When any Magistrate or Police Officer makes a requisition or direction under sub-section (1) or sub-section (2), he shall forthwith report the fact

to the Collector having jurisdiction in the local area in which the shop is situated.

(4) The State Government may grant to the licensee of a shop kept closed under sub-section (1) or (2) such compensation as it may think fit.â€​

Reading of Section 52 (2) indicates that though such a licensed shop could be closed temporarily on the ground of apprehended unlawful assembly,

it cannot be not more than 48 hours without the order of a Magistrate and under Section 52(1), even if the District or Sub-Divisional Magistrate may

for preservation of the public peace in the area require that the shop be closed, as such times of such period for preservation of public peace, it must

be preceded by a notice to that effect. Further it has been provided under Rule 294 of the Assam Excise Rules, 2016 that certain exercise need to be

undertaken for closure of the licensed premise, as mentioned therein. Rule 294 reads as follows:

“294. The opening, shifting and closures of any licensed premises shall be done by the District Collector with the previous sanction of the State

Government. Such opening shifting and closure shall not be granted â€

(a) unless it has been satisfactorily established by local enquiry that proposed action is necessary in the interest of public;

(b) until any objection, which may have been filed on the subject have been considered by the District Collector.

(c) unless the Application Fee prescribed is paid.â€​

Reading of Section 52 of the Assam Excise Act, 2000 with Rule 294 of the Assam Excise Rules, 2016 therefore, indicates that certain procedures

have to be followed before directing closure of a licensed shop. In any evet, it cannot be by any oral direction. Further, there must have been some

inquiry preceded and thirdly, approval of the competent authority is also required. It appears in the present case that the aforesaid requirements of law

had not been followed and adhered to.

Therefore, this Court is of the opinion that the aforesaid oral direction issued by the respondent No.3 appears to be not in accordance with law and

accordingly, the same is declared to be invalid. As a consequence, the petitioner would be entitled to open and run the aforesaid IMFL “ONâ€​ shop

in terms of the license granted to her vide License No.19/2020-21 dated 26.02.2021. However, if there be any issue relating to disturbance of the

public peace and tranquillity, the authorities would be at liberty to take appropriate actions in terms of the provisions of the Act and Rules.

With the above observation and direction, the present petition stands disposed of.