Allowed

Kushal Saikia v. the State of Assam and 3 Ors.

Gauhati HC4 Mar 2025WP(C)/78/2025

Case brief

AI extract

What is this about?

Writ petition challenging rejection of an application to shift an IMFL Retail 'OFF' Shop license from Bordumsa (Rural) to another site within Tinsukia district, where the landlord refused lease renewal. The court held Rule 294-A of the Assam Excise (Amendment) Rules, 2020 permits intra-district shifting in such cases and set aside the rejection.

What did the court decide?

Impugned letter dated 18.12.2024 rejecting the shifting application set aside; fresh consideration per Rule 294-A within 15 days.

Kushal Saikia Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2025)

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GAHC010003122025

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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)/78/2025

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KUSHAL SAIKIA

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S/O LT. LALIT SAIKIA, R/O VILL- SINGIA GOROI MARI GAON, P.O. AND P.S.GHILAMARA, DIST- LAKHIMPUR, ASSAM, PIN-787053

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EXCISE DEPARTMENT, DISPUR, GUWAHATI-781006

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2:THE COMMISSIONER OF EXCISE ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-6 3:THE DISTRICT COMMISSIONER TINSUKIA DISTRICT P.O. AND P.S. AND DIST- TINSUKIA (ASSAM)

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4:THE SUPERINTENDENT OF EXCISE TINSUKIA P.O. AND P.S.- TINSUKIA DIST- TINSUKIA (ASSAM

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Advocate for the Petitioner : MR. I H SAIKIA, MR K KASHYAB,MR. B BORAH

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Advocate for the Respondent : SC, EXCISE DEPTT., GA, ASSAM

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BEFORE

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HON’BLE MR. JUSTICE KARDAK ETE

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O R D E R

Date : 05.03.2025.

Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. R.R. Gogoi, learned Standing Counsel for the Excise Department representing the respondent Nos.1, 2 & 4 and Ms. U. Das, learned State Counsel appearing for respondent No.3.

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Aggrieved by the letter dated 18.12.2024, issued by the Commissioner of Excise, Assam, whereby the application of the petitioner praying for shifting of his IMFL Retail "OFF" Shop license from its existing site to a new site has been rejected, the present writ petition has been instituted, praying for a direction to the respondent authorities to allow the shifting in terms of the relevant Rules.

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The brief fact of the case is that the petitioner was granted an IMFL Retail "OFF" Shop license at TSK-7, Bordumsa (Rural), Tinsukia District, Assam with bid identification No.217662, which he has been operating by the name of "D.T. Liquor House", vide License No.07/2024-2025, issued on 11.07.2024, in the rented premises of Sri Tul Bahadur Newar of Dag No.94, P.P. No.78, situated at Madhavpur NC, Goju Road, Bordumsa in Tinsukia District.

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It is the contention of the petitioner that the landlord under whose premises the wine shop has been running, has refused to extend the lease agreement on being expired. Having no alternative, the petitioner had to shift the said wine shop to a new location. The petitioner, accordingly applied for permission vide application dated 21.11.2024, for shifting of the said wine shop from its existing site situated at Bordumsa (Rural) to a new site at Okanimuria

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Kachari Gaon, A.T. Road in Tinsukia District, at the rented premises of one Sri. Robin Kurmi, covered under Dag No. 506 and P.P. No. 274. The petitioner has also deposited the requisite application fee for shifting to a tune of Rs.2,00,000/- (Two Lakhs) only, along with other relevant documents.

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By the impugned letter dated 18.12.2024, the Commissioner of Excise, Government of Assam has rejected the application of the petitioner by stating that the application for shifting to a completely different location cannot be permitted as the petitioner was granted the license for the IMFL Retail "OFF" Shop, based on the financial bid offered by him for the Bordumsa (Rural) area only, which will be contrary to the Government Policy of granting license in Bordering (Rural) area. The Commissioner of Excise has also suggested for submission of proposal for shifting to a new premises located in the same approved area i.e. Bordumsa (Rural).

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Mr. I.H. Saikia, learned counsel for the petitioner, while referring to the Assam Excise (Amendment) Rules, 2020, particularly, Rule 294-A submits that 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 is permissible in cases where the licencee is running his licensed shop at a place under rental deed and the landlord or owner of the place refused to extend the term of the lease. He submits that since the landlord under which the petitioner was running his license shop has refused to extend the terms of the lease, for which the petitioner has prayed for shifting of the license shop to another premises within the same District, which is permissible under the Rule, the rejection of the application for shifting of the license shop within the District is not sustainable. Therefore, the respondent

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authorities may be directed to consider the case of the petitioner in accordance with the provisions of the Assam Excise (Amendment) Rules, 2020.

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Mr. R.R. Gogoi, learned Standing Counsel for the Excise Department representing the respondent Nos.1, 2 & 4 submits that since the petitioner was granted the IMFL Retail "OFF" Shop license, pursuant to the tender process and considering his financial bid for a particular area i.e. Bordering (Rural) as per the policy of granting license in the Border area, the prayer for shifting of the wine shop to a different premises, which is far off from the present premises, cannot be permitted.

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I have considered the submissions of learned counsel for the parties and also perused the materials including the relevant Rules.

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The Assam Excise Rules, 2016 has been framed under Section 84 of the Assam Excise Act, 2000, which has been amended vide notification dated 30.10.2020. The Assam Excise (Amendment) Rules, 2020 has substituted the Rule 294 and inserted the new Rule 294-A.

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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

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district shifting of any licensed premises shall be allowed.

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

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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,

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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, with certain conditions. 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.

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In the present case, admittedly the petitioner has been granted the IMFL Retail "OFF" Shop, for the Bordumsa (Rural) of Tinsukia District. It is also an admitted position that the landlord of the petitioner under whose place the petitioner is running his wine shop, has refused to extend the term of the lease. Although the petitioner has been granted the said license for the Bordumsa (Rural) area, the proposed new premises, namely, Okanimuria Kachari Gaon is stated to be within the Tinsukia District, it would be permissible to shift to the new place, within the same district, in terms of the Rule 294-A (supra).

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13. Having considered the provisions of the above Rule and the facts and circumstances of the present case, this Court is of the view that the rejection of the application of the petitioner for shifting of his licensed premises from his existing site to a new site i.e. from Bordumsa (Rural) area to Okanimuria Kachari Gaon, on the ground that the petitioner was granted license only on the basis of the financial bid offered by him and would be contrary to the Government Policy of granting license, is rather contrary to the provision of the Rule 294-A of the Assam Excise (Amendment) Rules, 2020. Thus, the impugned letter dated 18.12.2024, issued by the Commissioner of Excise, Assam is not sustainable.

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14. In view of the above, this Court is of the view that case of the petitioner for shifting of his license premises from existing site at Bordumsa (Rural) area to Okanimuria Kachari Gaon, would require to be considered in accordance with the applicable Rules, particularly, Rule 294-A of the Assam Excise (Amendment) Rules, 2020.

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Accordingly, it is directed that the Commissioner of Excise, Government of Assam shall consider the case of the petitioner afresh, strictly in accordance with Rule 294-A of the Assam Excise (Amendment) Rules, 2020, without resort to the ground of granting of license pursuant to the tender on the basis of the financial bid, offered by the petitioner for the Bordumsa (Rural) area, as the Rule permits that the license shop can be allowed to be shifted from its existing premises to the new premises, within the same district.

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16. Consequently, the impugned letter dated 18.12.2024, issued by the Commissioner of Excise, Assam is set aside.

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17. The whole exercise of consideration of case of the petitioner be made within a period of fifteen (15) days, from the date of receipt of a copy of this order, as the license of the petitioner would expire by 31.03.2025.

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18. The writ petition stands allowed and disposed of.

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JUDGE

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Comparing Assistant

Kushal Saikia v. the State of Assam and 3 Ors.

Case brief

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Kushal Saikia v. the State of Assam and 3 Ors.

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