Sailen Kumar Sharma Vs the State of Assam and 5 Ors.

Heard Mr. S. Sarma, learned counsel for the petitioner. Also heard Mr. R.R. Gogoi, learned counsel for the respondent nos.1 & 2 and Mr. B. Choudhury, learned counsel for the BTC.

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The case of the petitioner is that he is the owner of a restaurant namely “Paradise Restaurant” at Tangla Town, Udalguri. The petitioner had thereafter submitted an application for issuance of an IMFL ‘ON’ licence to the Excise Department.

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The petitioner’s counsel submits that all formalities for issuance of the licence had been completed, inasmuch as, payment of the fees for the same had been given through the treasury challan.

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The petitioner’s counsel submits that the State respondents have not issued IMFL ‘ON’ licence till date, in view of the Deputy Commissioner having sent the petitioner’s application for IMFL ‘ON’ licence to the Bodoland Territorial Council (BTC) for their views. The Joint Secretary, BTC had thereafter, vide letter no.BTC/Excise-7/2021/169 dated 07.11.2024, held that the BTC had not issued NOC for IMFL ‘ON’ licence to the petitioner, due to incorrect information furnished in the proposal.

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The petitioner’s counsel submits that “Excise” is not a transferred subject to the BTC and as such, the BTC has no role to play in the issuance of IMFL ‘ON’ shop licnece, in terms of the Assam Excise Act, 2000 (hereinafter referred to as the “Act”) and the Assam Excise Rules, 2016 (hereinafter referred to as the “Rules”). As such, the impugned letter dated 07.11.2024 issued by the Joint Secretary, BTC has to be set aside.

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Mr. R.R. Gogoi, learned counsel for the respondent nos.1 & 2 and Mr. B. Choudhury, learned counsel for the BTC submit that they do not have any quarrel with the submission made by the learned counsel for the petitioner, inasmuch as, the BTC has no role to play in issuance of an IMFL ON licence, in terms of the Act and the Rules.

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I have heard the learned counsels for the parties.

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Rule 114(ii), 279, 294 and 295 of the Rules states as follows :

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“ 114(ii) Grant of retail sale of foreign liquor ‘OFF’ or ‘ON’ the

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premises : Subject to Rule 279 of the Rules, licence for retail sale of foreign liquor ‘OFF’ or ‘ON’ the premises shall be granted by the District Collector with the previous sanction of the State Government on payment of the annual licence fee as may be prescribed by the State Government from time to time.

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279 . Licence for the sale of foreign liquor for consumption “ON” or “OFF” the vendor’s premises shall be granted only in places where there is proven demand on the 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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294 . The opening 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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(c) unless the Application Fee prescribed is paid.

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295 . Objection from local bodies and from following persons will be considered :

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(i) in case of Corporation, Municipality or Town Committee areas – the Corporation, Municipality or Town Committee concerned to which the proposal relates and the neighbours, occupiers and residents of the neighbourhood of the premises involved;

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(ii) in the case of areas not situated in a Corporation, Municipality or Town Committee areas –

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(a) the Gaon Panchayat concerned;

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(b) the owners or occupiers and residents of the neighbourhood of the premises involved.

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[(iii) for the purpose of Rule 289(i), 295(i) and 295(ii), objections from the owners or occupiers and residents of the neighbourhood located within a radius of 75 (seventy five) meters of the premises involved shall be considered.]

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A perusal of the above Rules shows that the grant of IMFL ‘ON’ licence requires the said licence to be issued by the District Collector, with the previous sanction of the State Government. There is no role on the part of the Joint Secretary, BTC for grant of IMFL ‘ON’ licence. In that view of the matter, this Court is of the view that the impugned letter dated 07.11.2024 issued by the Joint Secretary, BTC is not sustainable in law. The same is accordingly set aside.

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The definition of “District Collector”, as provided in Section 2(g) of the Act is to the following effect – “District Collector” means the Chief Officer-in-Charge of the revenue administration of a district.

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In view of Rule 114(ii), 294 and 295 of the Rules read with Section 2(g) of the Act, the petitioner’s application for an IMFL ‘ON’ licence shall accordingly be decided by the District Collector and the State Government, in terms of the Rules.

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The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Sailen Kumar Sharma v. the State of Assam and 5 Ors.

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Sailen Kumar Sharma v. the State of Assam and 5 Ors.

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