Disposed

Anuruma Das v. the State of Assam and 3 Ors.

Gauhati HC3 Jun 2022WP(C)/576/2021

Case brief

AI extract

What is this about?

Petitioner sought issuance of Beer 'ON' licence after depositing fees in 2019 for an application made in 2007. Court directed authorities to examine eligibility under Assam Excise Rules 2016. If eligible, licence to be issued; if not, amount refunded with interest.

What did the court decide?

Directing respondents to comply with Rule 114, 279, 294 and 295 of Assam Excise Rules 2016 to grant 'ON' licence if eligible, or refund Rs.3 Lakhs with interest if not.

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

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GAHC010011622021

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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)/576/2021

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ANURUMA DAS

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W/O SRI DALIM DAS

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RESIDENT OF HOWLY TOWN, WARD NO. 1. PO HOWLY, PS BARPETA, DIST BARPETA, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF EXCISE, DISPUR, GUWAHATI 5, DIST KAMRUP M ASSAM

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2:THE DEPUTY COMMISSIONER BARPETA

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BARPETA ASSAM

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3:THE SUPERINTENDENT OF EXCISE BARPETA ASSAM

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4:THE COMMISSIONER OF EXCISE

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HOUSEFED COMPLEX DISPUR GUWAHATI 5 PO DISPUR DIST KAMRUP M ASSA

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Advocate for the Petitioner : MR. I C DEKA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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Date : 03.06.2022

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Heard Mr. I. C. Deka, the learned counsel for the petitioner. Also heard Mr. K. P. Pathak, learned Standing counsel, Excise Department as well as Mr. B. Deori, learned Government Advocate for the State.

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2. The petitioner had applied for grant of a Beer “ON” Licence and also subsequent conversion to IMFL “ON” Licence. The petitioner applied for the licence for opening a shop in Howly Ward No.2, District-Barpeta, in the year 2007. According to the petitioner the respondent authorities had given sanction for grant of the Beer “ON” Licence for a period of one year subject to renewal as provided under the Rules. The petitioner was permitted to deposit the licence fee and the security money for the year 2009-2010 for the Beer “ON” licence, which was sanctioned by the Government. Pursuant thereto a communication was issued on 21.01.2019 by the Superintendent of Excise, Barpeta asking the petitioner to deposit the licence fee and the security deposit of Rs.1,50,000/- (Rupees one lakh fifty thousand) only under head “0039” in respect of the Beer “ON” licence for the Ward No.1, Hawly Town District-Barpeta. Accordingly, the petitioner deposited a total amount of Rs. 3,00,000/- (Rupees three

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lakhs) only, being Rs.1,50,000/- (Rupees one lakh fifty thousand) only for licence fee and Rs.1,50,000/- (Rupees one lakh fifty thousand only as security amount vide Challan No. 01/2793 dated 25.01.2019 and Challan No. 01/2800 dated 25.01.2019 respectively, in the Barpeta Treasury. Thereafter, the petitioner represented before the department for issuance of the licence for the period for which the licence fee and the security deposit was made. Inspite of several representations preferred by the petitioner, the licence was not sanctioned by the Department.

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3. The Deputy Commissioner, Barpeta, in their counter affidavit does not dispute that the amount of Rs.3,00,000/(Rupees three lakhs ) only have been deposited towards licence fee and security deposit. However, the Deputy Commissioner disputes the contention of the petitioner that she was entitled to be granted the licence as the provisions of the Rules had not been followed pursuant to the grant of the sanction of licence.

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4. The Excise department has also filed their counter affidavit and contested the case of the petitioner. The department contends that there is no record which reveals that any licence was ever granted to the petitioner or that it was ever renewed.

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5. Under the circumstances, the sanction which was granted way back in 2007 has lost its force and mere deposit of the licence fee will not entitle the petitioner to be granted the

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licence.

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6. The learned counsels for the parties have been heard. Mr. Deka, learned counsel for the petitioner submits that the sanction having been granted in favour of the petitioner and their licence fee having been deposited, the respondent authorities were duty bound to issue the licence in order to enable the petitioner to carry on her business. When all the formalities have been completed and the amount directed to have been deposited, having been deposited in the Treasury, the non- issuance of the licence is contrary to the provisions of the Excise Act and the Rules made there-under. Therefore, the appropriate directions be granted by this Court to the respondents to grant the licence.

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7. Mr. Pathak, learned counsel, on the other hand, contends that sale of liquor is a privileged trade and therefore, no vested right as such can be urged on behalf of any licencee or any person who seeks to trade in the business of liquor.

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8. Mr. Pathak, learned counsel submits that mere sanction of a licence by itself does not entitle the petitioner to be issued any licence. In terms of Rule 114 of the Assam Excise Rules, 2016 there are procedures required to be complied with by the respondent authority before any licence can be granted. There is no record available in the department which reveals that the steps mandated by the law to be followed by the Department prior to grant of licence in favour of the petitioner have been duly complied with.

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9. He also submits that the communication issued by the Superintendent of Excise dated 21.01.2019, which is annexure-‘7’ of the writ petition was issued by the Officer concerned, dehors the procedures mandated under the Rules.

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10. Mr. Pathak, learned counsel, however submits that if liberty is granted by the Court then the department can proceed with the procedures prescribed under the Rules for due enquiry and thereafter submit the report as to whether the licence can still be granted to the petitioner. If pursuant to the report, it is found that the licence can be granted, then the licence fee and the security deposit need not be deposited again for issuance of the licence.

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11. Mr. Deka, learned counsel has no objections to the suggestions made by the respondent counsel.

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12. The learned counsels for the parties have been heard. Pleadings on records have been perused. It is seen that under Rule 114(ii) of the Assam Excise Rules, 2016, it is provided that licence for retail sale of foreign liquor “OFF” or “ON” is subject to Rule 279 of the Rules and the premises shall be granted by the District Collector with the previous sanction of the State Government on payment of annual licence fee as may be prescribed by the State Government.

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Under Rule 279, it is provided that licence for sale of foreign liquor for “ON” or “OFF” vendors premises shall be granted only in places where there is proven demand on the

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part of a class of drinkers accustomed to foreign liquor, e.g. in large industrial and business centers, or in urban areas where there is a class of consumers specially accustomed to drinking such liquor.

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Under Rule 294, it is provided that 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-

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

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

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Under Rule 295, objections from local bodies including Gaon Panchayat and residents of the neighbourhood of the premises of the premises, if any, are also required to be considered.

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13. After due perusal of these provisions of the Assam Excise Rules, 2016, this Court is of the view that although the petitioner had applied for licence for the year 2007 and the licence fee and the security deposit amount has been deposited in the year 2019, this writ petition can be disposed

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of directing the respondent authorities to expeditiously take necessary steps as provided for under the Rules 114, 279, 294 and 295 of the Assam Excise Rules, 2016. Upon necessary steps being undertaken, if the petitioner is found to be eligible for grant of “ON” licence for sale of “Beer” then the same shall be issued without further delay. Since the amount of licence fee and security has already been deposited by the petitioner vide Challan No. 01/2793 and Challan No. 01/2800 further payment is required to be made for issuance of licence if found available by the petitioner. In the event the petitioner is found to be not eligible for the grant of licence for the current period then the amount of Rs.3 Lakhs which was directed to be deposited by the petitioner by way of Challan No. 01/2793 and Challan No. 01/2800 should be refunded to the petitioner with bank interest calculated with effect from the date the amount was deposited till the date the amount is refunded.

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14. With the above observation, this writ petition is disposed of.

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JUDGE

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Comparing Assistant

Anuruma Das v. the State of Assam and 3 Ors.

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Anuruma Das v. the State of Assam and 3 Ors.

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