Monimoy Baishya vs State Of Assam And 3 Ors.

Heard Mr. TJ Mahanta, learned Senior Counsel assisted by Mr. PP Dutta, learned counsel for the petitioner in WP(C) No. 3106/2017, Ms. N

Saikia, learned counsel for the petitioners in WP(C) No. 3128/2015 and WP(C) No. 2719/2015, Mr. DK Sarma, learned counsel for the petitioner in

WP(C) No. 6484/2014 and Mr. B Borgohain, learned counsel for the petitioner in WP(C) No. 7798/2015. Also heard Mr. PN Goswami, learned

Standing Counsel, Excise Department appearing on behalf of the respondents No. 1 and 2 and Mr. TC Chutia, learned Additional Senior Government

Advocate representing respondent No. 3.

Brief facts of the writ petitions mentioned hereinabove are as follows:-

WP(C) No. 3106/2017

The petitioner in this writ petition was accorded the sanction by the Government of Assam for grant of license for IMFL retail “OFF†shop

under the Rule 272(2) of the Assam Excise Rules, 1945 within his own premises vide letter dated 30.03.2001 thereby informing the Commissioner of

Excise about the said sanction. Thereafter the respondent No. 1, Commissioner of Excise requested the respondent No. 3, Deputy Commissioner,

Dibrugarh to issue the license accordingly on usual terms and conditions on payment of prescribed license fee etc. vide letter dated 03.04.2001. Vide

letter dated 09.07.2001, the Deputy Commissioner, Dibrugarh informed the respondent No. 1 that due to enforcement of Model Code of Conduct

before the Assam Assembly Election, 2001, the license could not be issued. Vide letter dated 28.08.2001, the petitioner requested the Deputy

Commissioner, Dibrugarh to issue the IMFL “OFF†license after the completion of the said election. From the writ petition it is seen that except

the said representation in the year 2001, there is no other representation to the concerned authority for granting the licence so issued. It is, however,

pleaded that in WA No. 253/2007, a Division Bench of this court passed directions for grant of IMFL “OFF†licence in similar circumstances and

subsequent thereto, similar prayer made by persons similarly situated like the present petitioner in other writ petitions for granting of the licence were

allowed more specifically in WP(C) No. 3830/2007 and WP(C) 2759/2014 by following the Division Bench decision of this court. The petitioner was

under the bonafide expectation that once the matter is decided by this court, the respondent authorities would grant him the license and as such, the

delay in filing the writ petition is a procedural one and cannot be attributed to the petitioner. Accordingly, he sought for a direction particularly to the

respondent No. 3 to issue the IMFL “OFFâ€​ licence to the petitioner without further delay on the basis of the sanction vide letter dated 30.03.2001.

WP(C) No. 3128/2015

The petitioner in this writ petitioner who is a resident of Golaghat town, applied for license for IMFL “OFF†shop at Golaghat town and the

Government of Assam vide letter dated 13.03.2001 conveyed the respondent No. 1, Commissioner of Excise about the sanction of license for a period

of three consecutive years. The Additional Commissioner of Excise, Assam vide letter dated 14.03.2001 informed the Deputy Commissioner, Golaghat

district and requested for issuance of the license as per usual terms and conditions to the petitioner. Subsequently, vide letter dated 20.03.2001, the

Superintendent of Excise, Golaghat informed that the Government has granted an IMFL “OFF†licence and directed the petitioner to deposit the

license fee amounting Rs.30,000/- for the year 2000-01. Vide letter dated 25.04.2001, the respondent No. 1 requested the respondent No. 3, the

Deputy Commissioner, Golaghat t o issue the license to the present petitioner along with two others. As there was no such issuance of the license, the

petitioner vide his letter dated 10.06.2001 requested the Deputy Commissioner, Golaghat to issue the license as per the Government sanction dated

13.03.2001. The reference of the writ appeal being WA No. 253/2007 is also made in this writ petition which was disposed of by a Division Bench of

this court and further explained that though the petitioner was planning to approach this court for an appropriate direction for issuance of the license

but as a judgment passed by the Division Bench was before the Full Bench of this court for a considerable period, the departmental authority as well

as his lawyer at that relevant point of time advised him to wait for the judgment of this court. Therefore, there was delay in filing the present writ

petition wherein he sought for a similar relief as the one made by the petitioner in WP(C) No. 3106/2017.

WP(C) No. 2719/2015

The petitioner in this writ petition is also from the Golaghat district and his case is similar as that of the writ petitioner in WP(C) No. 3128/2015 and

the explanation for delay is also of similar nature.

WP(C) No. 6484/2014

The petitioner in this writ petition is from the Nalbari district who was granted the license by the Government of Assam vide letter of sanction dated

23.03.2001. Similar communication was there from the Deputy Commissioner, Excise Department, Assam to the Deputy Commissioner, Nalbari,

respondent No. 3 to issue the license as per usual terms and conditions with intimation to the office of the Commissioner, Excise. The said letter was

dated 30.03.2001. As there was delay in granting the license the petitioner preferred WP(C) No. 4383/2001 and the same was disposed of directing

the respondents therein vide order dated 09.01.2002, to issue the licence as per the sanction dated 23.03.2001 of the Government of Assam, Excise

Department unless the same order was cancelled or withdrawn in the mean time within a period of 1 (one) month from the date of receipt of the

order. In view of the said order passed by this court, the Deputy Commissioner, Nalbari informed the respondent No. 1, Commissioner of Excise that

due to Model Code of Conduct for election the license could not be issued to the petitioner. However, the same could be applied when the ban was

lifted. The said intimation was dated 30.01.2002. The petitioner again had to file WP(C) No. 4578/2002 wherein the letter dated 30.01.2002 issued by

the Deputy Commissioner to the respondent No. 1, Commissioner of Excise was considered by this court and vide order dated 26.07.2002 directed the

respondent to act as per order dated 09.01.2002 passed in WP(C) No. 4383/2001.

The Deputy Commissioner, Nalbari on receipt of the said order of this court through the Additional Deputy Commissioner on 29.09.2002 informed the

petitioner that the Government of Assam, Excise Department vide order dated 11.12.2001 decided not to issue any more IMFL “OFF†licence

and accordingly the sanction accorded for granting licence was cancelled and further informed that the fees if deposited would be refunded as per the

relevant rules under the Assam Excise Act, 1910. The petitioner explained in the writ petition that he did not challenge the letter dated 25.09.2002

issued by the Additional Deputy Commissioner, Nalbari on the ground that similar matters were under consideration by this court and any effective

order passed by this court would bind the Government and the license would be granted to him. After many visits to this court he came to know that

the Division Bench of this court in WA No. 253/2007 directed the Government to issue the license sanctioned to persons similarly situated like him.

Subsequent to the said Division Bench decision and observation therein, directions were issued to the Government for issuance of license by this

Court. Accordingly, he also sought for the relief for granting the license to him and to that effect a direction to the appropriate authority.

WP(C) No. 7798/2015

The petitioner in this writ petition is from the district of Sivasagar. Similar is the case as that of the rest of the petitioners in the aforesaid writ

petitions and he deposited the licence fee including the security deposit for the said licence vide challan dated 23.08.2001. But as the license was not

issued till date he filed this writ petition keeping in view the decision of the Division Bench of this court after filing a representation dated 12.03.2014 to

the Deputy Commissioner, Sivasagar for issuance of the license, the sanction of which was given way back in the year 2001.

The learned counsel for the petitioners almost submitted in the same tune that considering the Division Bench decision in WA No. 253/2007 and the

subsequent orders passed by this court, the petitioners are entitled to get the order in terms of the said Division Bench decision of this Court.

Mr. Goswami, learned Standing Counsel for the respondent Excise Department, submits that the order which was passed in WA No. 253/2007,

was a consensus order wherein both the learned counsel for the parties agreed to modify the order under challenge keeping in view the order dated

22.11.2006 passed in WP(C) No. 7230/2005. The Government on its part as a matter of policy decided not to issue further licenses of IMFL

“Off†retail shop keeping in view the deleterious effect for prevalence of large number of Foreign Liquor Shops which may befall on the Society

and also to do away with the unhealthy competition among the licensees for IMFL “OFF†Retail shops. The said policy decision was adopted on

29.11.2001. For the said reason the sanctions accorded for granting licenses both in respect of fees etc. deposited but licenses not yet issued and

where no fees etc. deposited were cancelled. The said fact was not brought to the notice before the Division Bench while passing the order in WA

No. 253/2007. As such, the present petitioners are not entitled to the relief sought for in this writ petitions.

The said submission cannot be accepted, in my opinion, because of the fact that the Excise Department has not come out with any prayer for

reviewing the said order passed by the Division Bench in WA 253/2007 nor the same is set aside/ modified by any superior court and the same is still

binding on the Single Bench of this Court. In this regard, the ratio of the Constitutional Bench of the Hon’ble Apex Court laid down in case of P.

Ramachandra Rao v. State of Karnataka reported in AIR 2002 SC 1856 is relevant which is reproduced hereinbelow:-

“39. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A.R. Antulay’s

case [(1992) 1 SCC 225] still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by

another decision of a larger Bench. Consequently, the Benches of lesser number of Constitution of Judges which dealt with the cases reported in

“Common Cause†A Regd. Society through its Director v. Union of India & Ors. [(1996) 4 SCC 33]; “Common Cause†A Regd. Society

through its Director v. Union of India & Ors. [(1996) 6 SCC 775]; Raj Deo Sharma v. State of Bihar [(1996) 7 SCC 507] and Raj Deo Sharma (II) v.

State of Bihar [(1996) 7 SCC 604] could not have laid down any principles in derogation of the ratio laid down in A.R. Antulay’s case (supra)

either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the nature of causes

considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or

justification, if any, were found thereof, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents,

which has come to stay firmly in our method of Administration of Justice and what is permissible even under such circumstances being only to have

had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by no other means. The solitary reason would suffice

by itself to overrule the above decisions, the correctness of which stand referred to for consideration by this Bench. All the more so when, there is no

reason to doubt the correctness of the decision in A.R. Antulay’s case (supra) and this Bench concurs with the principles laid down therein.â€​

Considered the submission of the learned counsel. The issue of granting liquor licence is within the exclusive domain of the State inasmuch as it

can adopt policy to that effect keeping in view its impact on the society. Here the issue before this Court is that sanction was accorded to the

petitioner(s) for issuance of liquor licence as per the policy in existence on the date of granting the sanction. Subsequent thereto on 29.11.2001 as

apparent from the affidavit-in-opposition of respondent No. 2, a policy decision was taken by the State Government not to grant further licence and

also to cancel the sanction of those persons who were granted the licence. The said step was taken considering (a) the deleterious effect on the

Society and (b) the unhealthy competition amongst the licencees. Whether same is justified? While examining the justification it must also be taken into

consideration that on the face of the said policy dated 29.11.2001 this court passed various orders directing the concerned authority to issue the licence

of persons similarly situated as that of the present petitioners. The affidavit-in-opposition is totally silent as to what action the respondent State initiated

subsequent to the directions of this court. Considering the silence it can well be inferred that the directions were complied. If that be so there must be

compliance of orders passed even in the year 2015 i.e. after 14 years of the said policy prevalent on 29.11.2001.

In Kuldeep Singh v. Government of NCT of Delhi, reported in 2006 AIR SCW 3627, the Government of NCT, Delhi on the basis of an excise

policy permitting sale of India Made Foreign Liquor (IMFL) through private parties upon issuance of licences, an advertisement was issued inviting

application for grant of the said licences for retail sale of IMFL for the year 2004-05 subject to conditions stipulated therein. There was a huge public

outcry in regard to the excise policy of the State. A decision was taken on 09.03.2005 that no fresh licence would be issued by the department. State

Government decided to review “last year’s†policy and not granting any more licence. Collector, Excise thereafter rejected all the applications

received pursuant to advertisement dated 22.11.2004. Such rejection of applications was challenged. The Hon’ble Apex Court held as follows:-

“36. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in

our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been

filed. ..........â€​

Keeping in view the ratio it is quite clear and apparent that on the date of sanction of the licences to the petitioners, the subsequent policy dated

29.11.2001 was not in force, so if any person applied for issuance of the IMFL “Off†licence subsequent to 29.11.2001 then the said applicant is

not at all entitled to it. But the respondent State cannot impose the policy which is admittedly subsequent to the policy prevalent on the date of grant

and put on hold the ministerial act of issuance of licence by the respective Deputy Commissioners of the districts to which the petitioners belong.

The other limb of submission of Mr. Goswami, focuses on the delay part of the petitioners in approaching this Court to get the relief for which they

were supposed to come once their cause of action had accrued long back. The respondents No. 1 and 2 filed the affidavit-in-opposition and

specifically raised the issue of delay and for the laches on the part of the petitioners they are not entitled for the reliefs. It would be pertinent to

mention here that while passing the orders by this court subsequent to the decision of the Division Bench of this court referred hereinabove, the same

were consensus in nature wherein no objection was raised with respect to the question of delay. But herein these writ petitions the respondents more

specifically the Excise department has raised the issue of delay on the part of the petitioners in seeking the relief and in my considered opinion, I am

bound to consider the said objection and give a finding to that effect. It is submitted that from the pleadings of the petitioners it is seen that there were

no vigilant role on the part of the petitioners to approach this Court in order to get the relief of direction for issuance of licences by the Government.

Countering the submission of Mr. Goswami, the learned counsel for the petitioners referring to the various pleadings argued that they were not

sitting idle rather, they were upon the bonafide belief that as there was a direction issued by the Division Bench of this Court it was incumbent upon

the Government to follow the same and pass the benefit to the present petitioners on the basis of their individual representations made to the

concerned Deputy Commissioners. No individual notice/ notices were issued to the present petitioners informing about the decision of the

Government. Under such circumstances, it cannot be held that there were laches on the part of the petitioners in seeking the relief. Mr. Goswami in

order to buttress his submission relies on the case law of U.P. Jal Nigam and another v. Jaswant Singh and another reported in (2006) 11 SCC 464.

The submission of Mr. Goswami is to be considered keeping in view the stand taken in the affidavit-in-opposition by the respondents. In U.P. Jal

Nigam and another v. Jaswant Singh and another (supra), a similar situation arose. In Harwindra Kumar case, (2005) 13 SCC 300, it was held that the

employees of the U.P. Jal Nigam were entitled to continue in service up to the age of 60 years. During the pendency of the appeal and the writ

petitions, which were decided in the said case and after the disposal of the same, a spell of writ petitions followed in the High Court filed on various

dates. Some of the writ petitioners therein who were yet to be retired got the interim orders and continued in service. The question before the

Hon’ble Apex Court was whether the employees who did not wake up to challenge their retirement and accepted the same could be given relief

in the light of the subsequent decision delivered by the High Court in the case of Harwindra Kumar case. Accordingly, the Hon’ble Apex Court

held that no relief can be granted to the persons who approached the Court after their retirement. Only those persons who filed the writ petitions when

they were in service or who obtained interim order for their retirement should be allowed to stand to benefit and not others. While deciding so, the

Hon’ble Apex Court held that laches and delay are considered to be an important factor in exercise of the discretionary relief under Article 226 of

the Constitution of India. The chief points to be considered whether delay amounts to laches the Hon’ble Apex Court held that the same is to be

considered as to whether there was any acquiescence on the petitioners’ part and any change of position that has accrued on the

respondents’ part. Acquiescence while determining the laches does not mean standing by, while the violation of right of a particular person is in

progress but it is the assent after the violation has been completed and the petitioners have become aware of it.

The ratio referred in U.P. Jal Nigam (supra) is that whether the person seeking the relief had acquiescenced with respect to his or her right in

getting the relief after the violence with regard to denial of his or her right is completed. In the present case in hand, one of the petitioners had come

before this court earlier twice but once the reason for not issuing the licence was informed, for third time he is before this court that too after 12

(twelve) years. Rest of the petitioners put their explanation that as per the advice of the learned counsel they preferred belatedly the writ petitions.

The common reason so stated is that the issue (granting of licence) was before this court and as such they were observing the development. It would

not be out of place to mention here that the term of each of the licences was for 3 (three) consecutive years. The said term had already expired in the

year 2004. If a person is not aggrieved due to non issuance of the licence during the period of the term of the licence whether that person can be

termed to be vigilant with respect to the violation of his right?

In Rup Diamonds and others v. Union of India, reported in AIR 1989 SC 674 the petitioners therein were recognised Exports home for Import-

Export Policy 1982-83. They were granted six import licences and further they claimed in terms of policy 1982-83 they were entitled to the facility for

the import of Open General Licence (OGL) items. The said facility was available subject to discharging the export obligation imposed on advance/

import licence. If by the time the Export home becomes eligible to the facility the advance/ import licence expired or if the original validity left unused

by that time was less than six months, the licensing authority would revalidate the licence in order to give the petitioners’ licence a time of six

months for purpose of importing OGL items under the said facility. Petitioners failed to revalidate and got endorsement for OGL items for quite some

time. They sought for revalidation in the year 1986 i.e. after lapse of several years which were rejected on the ground of delay holding the same to be

time barred by two separate orders. The same were challenged in the writ petitions before the Hon’ble Supreme Court. The plea was that their

claims were similar to the writ petitions filed by similarly situated persons which were allowed and same were affirmed by the Hon’ble Supreme

Court, so rejection for revalidation were discriminatory and violation of Article 14 of the Constitution of India. Rejecting the writ petitions the

Hon’ble Supreme Court held as follows:-

“8. ........ Petitioners are reagitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be

dormant and chose to sit on the fence till somebody else’s case came to be decided. Their case cannot be considered on the anology of one where

a law had been declared unconstitutional and void by a Court, so as to enable persons to recover monies paid under the compulsion of a law later so

declared void. There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first

rejection. .......â€​

If the above ratio is considered and applied in the present cases it is clear and apparent that petitioners were not at all vigilant and sitting on the

fence observing the outcome of somebody others’ cases to be decided. The term of the licences granted to the petitioners was for 3 (three)

consecutive years. The same were granted in the year 2001 and the same expired in the year 2004. Let me take note of the action initiated by the writ

petitioners:-

(i) Petitioner in WP(C) No. 6484/2014 preferred two writ petitions as referred hereinabove in the year 2001 and 2002. Directions were given to the

Deputy Commissioner, Nalbari to issue the licence if the same was not cancelled. Vide letter dated 25.09.2002 the Deputy Commissioner, Nalbari

rejected issuance of licence in view of the subsequent policy of the Government. Later on, after 12 (twelve) years the petitioner filed the writ petition

challenging the letter dated 25.09.2002;

(ii) Petitioner in WP(C) No. 2719/2015 annexed two representations dated 07.06.2001 and 04.08.2001 to the Secretary, Excise Department and the

Deputy Commissioner, Golaghat;

(iii) Petitioner in WP(C) No. 3128/2015 annexed his representation dated 10.06.2010 to the Deputy Commissioner, Golaghat;

(iv) Petitioner in WP(C) No. 7798/2015 annexed one representation to the Deputy Commissioner, Sivasagar dated 12.03. 2014; and

(v) Petitioner in WP(C) No. 3106/2017 annexed one letter dated 28.08.2001 requesting the Deputy Commissioner, Dibrugarh to grant the licence.

The writ petitioners in their application forms had shown the respective areas to run the IMFL “OFF†retail outlet. Since the year 2001 till the

date of filing the writ petitions the respective areas must have changed and in between, changes were brought in the Excise Act and Rules so far

grant of licence of IMFL is concerned. Thus the petitioners having not come to redress the violation of their rights, clearly can be held as if they had

given their assent to the act of non issuance of their respective licenses without any demur. On the other hand, the position which was in existence at

the time of granting the sanction for issuance of licence also changed. The explanations for delay which are very much considered by me, irresistibly

lead me to the conclusion that the petitioners were not at all vigilant and sitting on the fence observing the outcome of somebody others’ cases

came to be decided by this court. If the ratio of Rup Diamonds case (supra) is applied, the petitioners are not entitled for the reliefs because of the

delay and laches on their part in approaching this court. The term of licence of the respective writ petitioners was 3 years w.e.f. 2001. After expiry of

the tenure of 3 year terms of licence they allowed their rights to be extinguished by the action of the respondents and the petitioners simply

acquiescenced their rights observing the outcome of cases of other persons who were vigilant enough to protect their rights. Judicial discretion by a

court must stick to the principle of application of the same to all similarly situated persons.

But the present bunch of cases are of such type wherein the said principle cannot be applied in favour of the petitioners keeping in view the act of

acquiescence resulting delay and laches on the part of the petitioners in moving the writ petitions for the reliefs that too on the face of stiff opposition

by respondents. Accordingly, the writ petitioners are not entitled to the relief on the ground of delay and laches. Acquiescence of their rights are very

much apparent from the nature of the pleadings so far explanations of the delay are concerned. A relief under Article 226 of the Constitution of India

and the jurisdiction under the said Article 226 is wide having no bounds in the true sense but that cannot be a reason to grant the relief to persons

whose acts as apparent from their respective conduct are self incriminating and in my opinion it would be proper to restrain myself in granting the

reliefs to the petitioners considering the acquiescence of the rights of the petitioners themselves which I do accordingly. With due respect to the

decisions of this court passed earlier on similar issues which were consensus in nature, I am constrained to differ only on the ground of acquiescence

of the rights of the petitioners themselves which in my considered opinion requires to be looked into while granting a relief under Article 226 of the

Constitution of India. The writ petitions are accordingly dismissed.