Allowed

Nitul Neog v. the State of Assam and 3 Ors.

Gauhati HC19 Sept 2022WP(C)/2766/2017

Case brief

AI extract

What is this about?

The Gauhati High Court, exercising writ jurisdiction under Article 226, quashed an order directing the closure of the petitioner's IMFL shop. The Court held the order was passed without cogent reasons and in violation of natural justice principles, as the alleged ground of distance from a religious birthplace was irrelevant given compliance with statutory minimum distance.

What did the court decide?

The impugned order dated 24.04.2017 is set aside and the writ petition is allowed.

Nitul Neog Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC010022462017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2766/2017

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NITUL NEOG

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S/O- LATE BHOGESWAR NEOG, R/O- VILL- RAJBARI, P.O and P.S- BIHPURIA, DIST- LAKHIMPUR, ASSAM

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VERSUS

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THE STATE OF ASSAM and 3 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, EXCISE DEPARTMENT, DISPUR, GUWAHATI781006, ASSAM

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2:THE COMMISSIONER OF EXCISE ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-781006 DIST- KAMRUPM ASSAM 3:THE DEPUTY COMMISSIONER LAKHIMPUR P.O- NORTH LAKHIMPUR PIN- 787001 DIST- LAKHIMPUR ASSAM 4:THE SUPERINTENDENT OF EXCISE LAKHIMPUR POST OFFICE- NORTH LAKHIMPUR PIN- 787001 DIST- LAKHIMPUR ASSA

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Advocate for the Petitioner : MR.P K MUNIR

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Advocate for the Respondent : SC, EXCISE DEPTT.

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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19.09.2022

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Heard Shri P. Hazarika, learned counsel for the petitioner, who is aggrieved by an order dated 24.04.2017 by which his Indian Made Foreign Liquor (IMFL) “ON” Shop has been directed to be closed. It is the case of the petitioner that he had made an application for opening of IMFL “ON” Shop and after due enquiry and consideration, vide an order dated 06.01.2016, the license was issued to the petitioner for opening the Shop at the proposed site which is at Ward No. 1, Rajbari, Bihpuria in the district of Lakhimpur, Assam. The petitioner has projected that all necessary formalities were complied with by the petitioner and therefore there was no illegality attached to the opening of the said Shop. The petitioner thereafter started running his shop.

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Learned counsel for the petitioner has further contended that the issue of distance as laid down by the Hon’ble Supreme Court in the case of State of Tamil Nadu Vs. K. Balu and Another reported in (2017) 2 SCC 281 was also followed. However, the impugned order has been issued for closure without any cogent reasons and grounds. It is also submitted that as per information received, the same has been done on alleged complaint of the public which are factors totally irrelevant and extraneous for taking the impugned decision. He finally submits that no opportunity was granted to the petitioner before passing of the impugned order and therefore there is gross violation of the principles of natural justice.

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Shri KP Pathak, learned Standing Counsel, Excise Department submits that the affidavit-in-opposition has been filed on 06.11.2017 through the Superintendent of Excise Department, Lakhimpur. In the said affidavit-in-opposition, more particularly in

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paragraph 8 thereof, it has been stated that a student organization had lodged the complaint against the Shop on the ground that which was close to the birth place of Shri Shri Madhabdev (Letekuphukhuri) and based upon such complaint and few more complaints from the local people the impugned order was passed. Shri Pathak, learned Standing Counsel however has fairly submitted that the said complaints do not constitute any legal grounds and further with no opportunity was granted to the petitioner before such closure. He, however submits that the impugned order is not per se an order of closure as would appear from the order itself whereby the petitioner has been directed to submit a shifting proposal.

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Shri S. Baruah, learned State Counsel endorses the submission of Shri KP Pathak, learned Standing Counsel for the Excise Department. The learned State Counsel however fairly submits that apparently there is violation of principles of natural justice.

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This Court has considered the rival submissions made by the learned counsel for the parties. It appears that initially permission and license was issued to the petitioner after proper inquiry of the site and the Shop was operating for about a year and apparently there was no violation of any statutory condition. Though the factor of distance from any religious place of worship or educational institution etc. is a relevant consideration, the minimum distance is 150 meters in a Gaon Panchayat area which applies to the site in question. However, the distance from the site of the birth place of Shri Shri Madhabdev is about two kilometers as per the instructions obtained by the learned Standing Counsel for the Excise Department. In view of the above, the said ground cannot be treated as a relevant and cogent ground.

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This Court being the Court of Equity while exercising the jurisdiction under Article 226 of the Constitution of India would look into the decision making process. In other words, this Court will examine whether the decision is based on the relevant consideration and whether the same is based on irrelevant and extraneous

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consideration.

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The Hon’ble Supreme Court in a catena of decision including the case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 has laid down as follows:

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"74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made, but the decision making process itself.

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In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at 154 Lord Brightman said :

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"Judicial review, as the words imply, is not an appeal from a decision, but review of the manner in which the decision was made.

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Judicial Review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

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As observed above, a bare reading of the impugned order dated 24.04.2017 does not disclose that any reasons have been cited and as it transpires in the course of hearing, the so called reason cannot be held to be a cogent and acceptable reason. In view of the above, impugned order dated 24.04.2017 is interfered with and is accordingly set aside.

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The writ petition accordingly stands allowed.

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JUDGE

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Comparing Assistant

Nitul Neog v. the State of Assam and 3 Ors.

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Nitul Neog v. the State of Assam and 3 Ors.

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