Subrat Sarma Vs the State of Assam and 3 Ors.

Heard Mr. I. H. Saikia, learned counsel for the petitioner. Also heard Mr. I. H. Borthakur, learned Standing Counsel, Excise Department, appearing for the respondent nos.1, 2 & 4 and Mr. B. J. Talukdar, learned counsel, appearing for the respondent no.3.

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2. The grievance raised in the present proceeding is with regard to action on the part of the respondent no.2 in not permitting the petitioner to shift his Indian Made Foreign Liquor (IMFL) “off” shop viz, M/s Golden Goblet from NSCB Road, Krishna Nagar, Ward No.9, P.O and P.S.-Hojai at Hojai District to Lanka Town Kissam, Lanka, District- Hojai at the rented premises of Smti. Rumi Shill.

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3. The petitioner herein, in pursuance to an e-tendering process was vide license No.01/2024-25 permitted to operate his IMFL ‘off’ license shop viz “M/S Golden Goblet” at NSCB Road, Krishna Nagar Ward No.9. It is contended by the petitioner that he had developed the premises for starting his operation. However, while the petitioner was in the process of establishing the IMFL ‘off’ shop, the residents of the locality protested to the setting up of a wine shop in their area and accordingly, the petitioner could not start his operation, therefrom. The petitioner informed the matter to the departmental officials and it is contended that a verification of the reason given by the petitioner for not operating his shop was also done. As the license of the petitioner was not being made operationalized with the opening of the said shop, the petitioner submitted an application before the District Commissioner, Hojai, seeking shifting of his existing IMFL ‘off’ shop to Lanka town Kissam, at Ward No.7, District,

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Hojai and to open the same up at the premises of one Smti Rumi Shill. The petitioner for the said purpose had also enclosed along with the said application a tenancy agreement entered between the petitioner and the said Smti Rumi Shill.

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4. On the submission of the said application by the petitioner for shifting to Lanka Town, a verification as mandated under the provisions of the Assam Excise Act was carried out in the matter by the Inspector of Excise, Lanka Circle. On the conclusion of the verification process the said authority recommended for the shifting of the IMFL ‘off’ shop of the petitioner to the Deputy Superintendent of Excise, Lumding, vide communication dated 18.12.2024. Thereafter, the Office of the District Commissioner, forwarded the proposal for shifting of the IMFL ‘off’ shop premises of the petitioner to the Commissioner of Excise, Assam, vide communication dated 26.12.2024, along with all requisite reports and checklist. The petitioner submits that inspite of the said developments taking place and the matter being forwarded to the Commissioner of Excise, Assam, on 26.12.2024, by the Office of the jurisdictional District Commissioner, no decision has been taken, thereon, till date by the Commissioner of Excise. The petitioner contends that he is required now to bear the rent of the premises taken on lease by him at Lanka as well as maintain the premises against which his original license was so issued at Hojai. The petitioner has further projected that he has already deposited an amount of Rs.2,00,000/- (Rupees Two Lakhs only) before the Excise authorities as fees for the purpose of consideration of his application for shifting. The petitioner also contends that a further amount of Rs.3,00,000/- (Rupees Three Lakhs only) has also been deposited by him for the purpose of renewal of his license , although the petitioner has not been able to earn any income in pursuance to the issuance of the said license to him. Accordingly, he submits that an appropriate direction be issued to the Excise authorities for permitting the petitioner to shift his IMFL ‘off’ premises to Lanka Town.

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5. Mr. I. H. Saikia, learned counsel for the petitioner, fairly submits that the petitioner although was issued with a license for opening a IMFL ‘off’ shop at Hojai, he was prevented from opening the same on account of protest from the residents of the area. It is submitted that the Excise authorities had forwarded the proposal for

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shifting the IMFL shop of the petitioner to the Commissioner of Excise, by complying with all the requisite procedure mandated in this connection. However, the decision, thereon, is still pending on the part of the Commissioner of Excise, Assam.

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6. I have considered the submission of the learned counsel for the parties and also perused the materials available on record.

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7. The Assam Excise Rules, 2016, was amended vide Assam Excise (Amendment) Rules 2020, interalia, substituting Rule 294 and inserted the new Rule 294 A.

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8. Rule 294-A of the Assam Excise (Amendment) Rules, 2020 regulates the shifting of the premises licensed for wholesale or retail vend of foreign liquor, country spirit and heritage alcoholic beverages from one location to another within the same district, which is quoted here in below:

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“294-A (1) The shifting of premises licensed for wholesale or retail vend of foreign liquor, country spirit and heritage alcoholic beverages from one location to another within the same district shall be allowed by the Excise Commissioner or the District Collector as the case may be, with prior approval of the State Government. No inter district shifting of any licensed premises shall be allowed.

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1. The shifting of licensed premises shall be subject to the fulfillment of the following conditions, namely:-

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(a) That the Gaon Panchayat/Municipality or Town Committee/Municipal Corporation concerned in whose area the premises licensed for wholesale or retail vend is proposed to be shifted has given no objection to that effect.

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(b) That the proposed premises are free from the distance restriction and other criteria as provided under rule 289.

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(c) That the Excise Commissioner or the District Collector, as the case

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may be, shall consider only such proposals where the shifting is essential due to the following situations :-

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(i) licencee whose premises are affected by the implementation of Development Scheme such as road widening or other similar reasons;

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(ii) cases where the licencee is running his licensed shop at a place under rental deed and the landlord or owner of the place do not agree to extend the term of the lease;

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(iii) cases where the shifting is essential due to Hon'ble Court's order;

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(iv) cases where the Excise Commissioner or the District Collector as the case may be, is satisfied that the shifting is required arising out of circumstances such as change of existing rules or procedures, which are beyond the control of the licencee;

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(v) cases where the Excise Commissioner or the District Collector is

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satisfied that the shifting is necessary in the interest of the public."

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9 . Bare perusal of the above Rule shows that the shifting of premises of for wholesale or retail vend of foreign liquor, country spirit and heritage alcoholic beverages from one location to another within the same district is permissible, which shall be allowed by the Excise Commissioner or the District Collector, with the prior approval of the State Government. However, no inter district shifting of license shop is allowed. It provides, inter alia, that the cases where the licencee is running his licensed shop at a place under rental deed and the landlord or owner of the place do not agree to extend the term of the lease, shifting of premises of license can be allowed and such shifting shall also be permissible in cases where the shifting is necessary in the interest of public.

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10 . In the present case admittedly, the petitioner after being granted the IMFL ‘off’ retail license for opening a shop at Hojai, has not been able to open the said shop on account of the protest raised in the matter by the residents of the locality.

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The petitioner having taken a premises on lease at Lanka and thereafter submitted his application for shifting of his shop from Hojai to Lanka, the same being within the District of Hojai, such shifting being permissible under the provisions of rule 294 A of the Assam Excise Rules 2016, this Court is of the considered view that such application which has now been placed before the Commissioner of Excise, Assam, in a form of a proposal by the Office of the jurisdictional District Commissioner, must receive its due consideration. Further, the shifting involved in the present case being so based on the protest raised by the resident of the area, where the original license was issued to the petitioner, a public interest also arises for shifting of such premises.

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11. In view of the above discussion, the Commissioner of Excise, Government of Assam, is directed to consider the proposal submitted by the Office of the jurisdictional Deputy commissioner for shifting of the IMFL shop of the petitioner in accordance with the stipulations contained in the Rule 294A of the Assam Excise Rules 2016, within a period of 15(fifteen) days from the date of receipt of a certified copy of this order along with the representation from the petitioner, herein.

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12. With the above observations and directions, the present writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Subrat Sarma v. the State of Assam and 3 Ors.

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Subrat Sarma v. the State of Assam and 3 Ors.

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