Disposed

Smt. Sonali Dey v. the State of Assam and 5 Ors.

Gauhati HC1 Feb 2024WP(C)/6804/2023

Case brief

AI extract

What is this about?

Petitioner challenged an excise authority's order directing her IMFL 'OFF' shop to relocate for violating distance norms from religious institutions and a highway, contending no notice or hearing preceded it. The court set aside the impugned order and the underlying inspection report, permitting fresh verification with the petitioner's participation.

What did the court decide?

Impugned order dated 11.08.2023 and inspection report dated 13.05.2022 set aside; fresh verification permitted only with prior notice and petitioner's participation.

Smt. Sonali Dey Vs the State of Assam and 5 Ors. — Writ and Judicial Review | Gauhati HC (2024)

¶1

Page No.# 1/4

¶2

GAHC010245352023

¶3

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

¶4

Case No. : WP(C)/6804/2023

¶5

SMT. SONALI DEY

¶6

W/O SRI CHANDAN DEY, A R/O VILL AND P.O.-KALINAGAR PART-III, P.S.PANCHGRAM, PIN-788802, DIST-HAILAKANDI, ASSAM

¶7

VERSUS

¶8

THE STATE OF ASSAM AND 5 ORS

¶9

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EXCISE DEPARTMENT, DISPUR, GUWAHATI-781006, ASSAM

¶10

2:THE COMMISSIONER OF EXCISE ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI PIN-781006

¶11

3:THE DISTRICT COMMISSIONER HAILAKANDI PIN-788151

¶12

4:THE SUPERINTENDENT OF EXCISE HAILAKANDI HAILAKANDI PIN-788151

¶13

5:THE EXECUTIVE ENGINEER P.W.D. RURAL ROADS DIVISION HAILAKANDI PIN-788151

¶14

6:THE INSPECTOR OF EXCISE

¶15

Page No.# 2/4

¶16

HAILAKANDI PIN-78815

¶17

Advocate for the Petitioner : MR. S D PURKAYASTHA

¶18

Advocate for the Respondent : SC, EXCISE DEPTT.

¶19

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

¶20

ORDER

¶21

02-02-2024

¶22

1. Heard Mr. S. D. Purkayastha, learned counsel for the petitioner. Also heard Mr. R. R. Gogoi, learned counsel for the respondent nos. 1, 2, 4 & 6 and Mr. K. Gogoi, learned counsel for the respondent no. 3. Mr. B. Gogoi, learned counsel appears for the respondent no. 5.

¶23

2. The grievance of the petitioner is with the direction passed by the Office of the respondent no. 3 in the order dated 11.08.2023, whereby the petitioner has been asked to relocate/shift the M/s Marine, IMFL ‘OFF’ shop from the Kalinagar Part-III, P. O. Kalinagar, Dist-Hailakandi to a site which conforms to the Excise Rules & Norms within 90 days.

¶24

3. The petitioner’s counsel submits that the petitioner has been running an IMFL ‘ON’ shop since 2014 and in the year 2017, the petitioner applied for shifting the IMFL ‘ON’ shop to a new location, i.e. in the premises of Shri Rathindra Dey & Sri Jatindra Dey of vill-Kalinagar Part-III, PO Kalinagar, DistHailakandi covered by Dag No. 139 of Patta No. 12.

¶25

4. The new site was inspected and verified by the then Inspector of Excise,

¶26

Page No.# 3/4

¶27

Hailakandi who submitted his report on 28.08.2017, stating that the proposed site was located at more than 220 meters away from the outer edge of National Highway & State Highway. Further, there was no IMFL shop within 3 Kms. Further, there existed no religious and educational institutions or hospital or nursing home within a distance of 150 mtrs from the proposed site, as required in Rule 289 (2) of the Assam Excise Rules, 2016 . The petitioner’s IMFL wine shop was thus relocated to the new site and the IMFL ‘ON’ shop was subsequently changed into IMFL ‘OFF’ shop, with the permission of the authorities.

¶28

5. The petitioner has now been issued the impugned order dated 11.08.2023, asking her to shift her IMFL ‘OFF” shop on the ground that the report dated 13.05.2022 submitted by the Inspector of Excise, Hailakandi states that the petitioner’s IMFL ‘ON’ shop is within a range of 100 mtrs. from 2 Kalimandirs and 1 Mosque, which violates Rule 289 (1) & (2) of the Assam Excise Rules, 2016 . Moreover, as per report of the Executive Engineer, PWD Rural Roads Division, Hailakandi, the IMFL ‘OFF’ shop is located at a distance of 198 mtrs. from the outskirts of the National Highway.

¶29

6. The petitioner’s counsel submits that the impugned order dated 11.08.2023 should be set aside, as no notice was issued to the petitioner prior to issuance of the impugned order and neither was the petitioner made a part of any enquiry/verification team, before the respondents took a decision stating that the petitioner’s IMFL ‘OFF’ shop was in violation of the Assam Excise Rules, 2016 .

¶30

7. The counsels for the respondents fairly admit that the principles of natural justice has been violated, as no notice was issued to the petitioner, prior to the

¶31

Page No.# 4/4

¶32

issuance of the impugned order. They however submit that a fresh verification may be held by the authorities concerned, in the presence of the petitioner.

¶33

8. On considering the fact that the earlier report made by the Inspector of Excise, Hailakandi on 28.08.2017 had stated that the petitioner’s IMFL ‘OFF’ shop location was in consonance with Rule 289 (1) & (2) of the Assam Excise Rules, 2016, it is not understood as to how the same shop could now be in violation of the same Rules. In any event, no opportunity of hearing has been provided to the petitioner, prior to the issue of the impugned order dated 11.08.2023, which is in violation of the principles of natural justice. In that view of the matter, this Court is of the view that the impugned order dated 11.08.2023 is not sustainable in law and the same is accordingly set aside. The report dated 13.05.2022 is also set aside. In the event, the State respondents are of the view that a fresh verification should take place, they should ensure that the petitioner is made a part of the verification team and prior notice should be given before any order is issued, which prejudices her.

¶34

9. Writ petition is accordingly disposed of.

¶35

JUDGE

¶36

Comparing Assistant

Smt. Sonali Dey v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Sonali Dey v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Raj Kumar Das Vs the State of Assam and 6 Ors.

Sahidul Alom Barbhuiya Vs the State of Assam and 6 Ors.

A.N.E. Industries Pvt. Ltd. Vs Union of India and 3 Ors.

Tapojyoti Sengupta Vs Gauhati Municipal Corporation and 6 Ors.

Jyoti Prasad Kalita Vs the State of Assam and 5 Ors.

Dethsung Khr Daimary Vs the State of Assam and 3 Ors.