Manju Majumdar vs State Of Assam And 2 Ors

Heard Mr. SP Choudhury, learned counsel for the petitioner and Mr. KP Pathak, learned standing counsel for the authorities in the Excise

Department of the Government of Assam.

The petitioner was issued an IMFL “ON†License for operating an IMFL “ON†shop at Hailakandi. The Superintendent of the Excise

Department, Hailakandi on 14.07.2015 passed an order that the IMFL “ON†shop of the petitioner be locked. It is stated that the reason as to

why the order of locking the IMFL “ON†shop of the petitioner was passed was that although the license granted was for IMFL “ONâ€

license, but the petitioner was also functioning as an IMFL “OFF†shop and therefore, had violated the provisions of Section 31(1)(b) read with

Section 30 of the Assam Excise Act, 2000. The order dated 14.07.2015 was assailed by the petitioner in WP(C) No. 6606/2015. In the said writ

petition, an order dated 21.12.2018 was passed, whereby a view was taken that the provisions of Section 31(1)(b) of the Assam Excise Act, 2000

empowering the Excise Department to cancel a license without serving any noting appeared to be a draconian measure. Accordingly, notice was

issued to the learned Advocate General, Assam as regards the validity of Section 31(1) (b) of the Assam Excise Act 2000. Consequent thereof, an

interim order dated 21.12.2018 was also passed by which, the respondent Excise Department was directed to allow the petitioner to operate the IMFL

‘ON’ shop.

In the aforesaid circumstances, a notice dated 14.01.2019 was issued by the Superintendent of Excise Department, Hailakandi requiring the

petitioner to deposit the arrear outstanding renewal fees with effect from 14.07.2015. The said notice of 14.01.2019 requiring the payment of the

arrear outstanding renewal fees is being assailed in this writ petition.

Mr. S.P. Choudhury, learned counsel for the petitioner raises the contention that as this Court by the order dated 21.12.2018 in WP(C) No.

6606/2015 had directed the respondent Excise Department to allow the petitioner to operate the IMFL ‘ON’ shop, therefore, the notice dated

14.07.2015 itself is not legally sustainable. Therefore, according to the learned counsel the petitioner, the petitioner is not required to pay the arrear

renewal fees between 14.07.2015 up to 21.12.2018 when this Court had ordered it to be opened.

We understand the contention raised by the learned counsel for the petitioner. The basis of the assailing the notice dated 14.01.2019 requiring the

payment of the arrear outstanding renewal fees is that the earlier order of locking of the shop is itself is illegal and therefore, the petitioner is not liable

to pay the license fees for the period for which the shop was locked up.

We are of the view that in order to answer the contention raised in this writ petition, this Court would now require to go into the question whether

the order dated 14.07.2015 requiring a lock-up of the IMFL ‘ON’ shop of the petitioner is legally acceptable or not. We are afraid that a

decision on the said question would require the Court to embark upon to decide the question raised in the earlier WP(C) No. 6606/2015, which

according to us, would be impermissible. Firstly, if we undertake to decide the validity of the order dated 14.07.2015 in this writ petition, it would

amount to decide an issue involved in another writ petition and secondly, if we do that by implication this writ petition would be barred by the principles

of res-judicata as the issues for decisions involved would be same between the same parties, where an earlier writ petition is already pending.

For both the reasons stated above, we are not inclined to pass any order on the legality and validity of the order dated 14.07.2015. But, however, if

the petitioner is of the view that they are not liable to pay the renewal fee for the period between 14.07.2015 and up to the date, on which the shop

stood opened as per the order dated 21.12.2018, it would be more appropriate for the petitioner to make an application before the respondent Excise

Department for an order to be passed on the claim of the petitioner regarding their requirement to pay the renewal fees of the said period.

Accordingly, we close this writ petition and allow the petitioner to file an application before the respondent Excise Department as indicated above.

It is further provided that upon such application being made, the respondent shall pass a reasoned order thereon within the period of 15 (fifteen) days

from the date of filing of the application.

The writ petition stands closed in the above terms.