Rasmi Das vs The State Of Assam And 3 Ors
2022 Latest Caselaw 2327 Gua

                                                                 Page No.# 1/6

GAHC010043192022




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

                        Case No. : WP(C)/1646/2022


         RASMI DAS
         W/O SARBESWAR HALOI, VILL. BHUYARKUCHI, P.O. MILANPUR P.S.
         NALBARI, DIST. NALBARI, ASSAM, PIN-781337


         VERSUS


         THE STATE OF ASSAM AND 3 ORS.
         REP. BY THE COMMISSIONER AND EXCISE, THE GOVT. OF ASSAM,
         EXCISE DEPTT. HOUSEFED COMPLEX DISPUR GUWAHATI, PIN-781006,
         ASSAM

         2:ADDITIONAL SECRETARY
         TO THE GOVT. OF ASSAM EXCISE DEPTT. DISPUR
          GUWAHATI-6

         3:SUPERINTENDENT OF EXCISE
          NALBARI
          O/O THE SUPERINTENDENT OF EXCISE NALBARI
          781335
         ASSAM

         4:THE DEPUTY COMMISSIONER
          NALBARI
          O/O THE DEPUTY COMMISSIONER
          NALBARI
          PIN-781335
         ASSA
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                                       BEFORE
                  HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI



      For the petitioner      : Shri S.K. Goswami, Advocate,
      For the respondents      : Shri D. Gogoi, Standing

Counsel, Excise Department, Shri B. Deuri, Govt. Advocate.

      Date(s) of hearing      : 18.07.2022.
      Date of judgment        : 18.07.2022.


                              JUDGMENT & ORDER

1. Heard Shri S.K. Goswami, learned counsel for the petitioner. Also heard Shri D. Gogoi, learned Standing Counsel, Excise Department as well as Shri B. Deuri, learned State Counsel.

2. Considering the subject matter in question and also the written instructions received by the learned Government Advocate, this writ petition is taken up for disposal at the admission stage.

3. The petitioner is a license holder of an IMFL "ON" shop being license number EX(N) 23/2019 dated 23.06.2020 in the district of Nalbari. As there were certain difficulties in operating the said shop from the existing location, the petitioner had submitted an application for shifting of the IMFL "ON" shop to a new location within the district of Nalbari. On being satisfied with the application and the ground urged, the Department vide communication dated 18.09.2021 had informed the Deputy Commissioner that the proposal to shift the shop was allowed under Rule 294 (A) of Page No.# 3/6

the Assam Excise Rules, 2016. The said order specifically mentioned that the shifting would be from the existing site to a new site in the rented premises of Shri Govinda Kakoti, Dag No. 435, Patta No. 173 at Katla Barkuchi, village-Bhuyarkuchi, P.O. Milanpur in the district of Nalbari. In this connection, the petitioner had also annexed the rent agreement along with the owner of the premises wherein the shop would be shifted. The necessary fee paid vide challans has also been annexed to the writ petition. The grievance of the petitioner is that in spite of completion of all the formalities, the Deputy Commissioner, Nalbari is not taking any action for actual shifting of the shop.

4. Shri Goswami, the learned counsel for the petitioner submits that the inaction of the Deputy Commissioner in passing appropriate orders of shifting is most likely because of an incorrect interpretation of a communication dated 21.10.2021 issued by the Department. A copy of the said communication which has been annexed as Annexure-VI in the writ petition would disclose that due to objection received from the MLA, Nalbari, issuance of IMFL "ON" license in the Nalbari district was stopped. It is submitted that the said communication would not have any application in the instant case as it pertains to new licenses whereas in the case of the petitioner it is only a matter of shifting of an existing wine shop. Shri Goswami, the learned counsel, accordingly submits that necessary directions be issued to the Deputy Commissioner, Nalbari to immediately facilitate shifting of the wine shop of the petitioner for which a number of representations were also submitted.

5. Shri D. Gogoi, learned Standing Counsel, Excise Department submits that the Department having approved the shifting, vide the communication dated 18.09.2021, the Department does not have any objection, in principle, to the prayer of the petitioner subject to the petitioner fulfilling the requirements for such shifting. The learned Standing Counsel, however, submits that the communication dated Page No.# 4/6

22.10.2021 does not appear to be the reason for the petitioner to be aggrieved with as the same pertains to new licenses only.

6. Shri Deuri, the learned State Counsel has placed before this Court the written instructions dated 27.05.2022, a copy of which has been placed before this Court.

7. A perusal of the said written instructions dated 27.05.2022, more specifically, the instructions received against paragraph 7 of the writ petition would, however, show that the final step by the Deputy Commissioner for shifting has not been taken not because of the communication dated 22.10.2021 but because of the complaints received by the authorities. It is however, clarified that the complaints were verbal in nature and the people who had complained were unwilling to disclose their personal identities. No other grounds have been stated in the entire written instructions.

8. Complaint by the public may be a relevant factor in a matter of the present nature. However, what is pertinent to be noted is that the nature of the complaint, the details of the persons, the reasons etc. Such requirements are necessary so as to avoid any unnecessary harassment caused to any businessmen bona fide running their business. If the antecedents of the persons making the complaints are not known, a situation of anarchy would be created by any unscrupulous element either due to business rivalry or with an intention to create a situation of uncertainty affecting the Rule of Law.

9. The issue which falls for determination is as to whether the action of the Deputy Commissioner, Nalbari in not completing the shifting process of the IMFL "ON" shop of the petitioner pursuant to the Departments letter dated 18.09.2021 is justified.

10. Before going into the aforesaid issue, it is necessary to remind ourselves that this Court in exercise of powers under Article 226 of the Constitution of India is only to Page No.# 5/6

examine as to whether the decision making process was carried out in accordance with law and there is no requirement, stricto senso to examine the decision as such.

11. In the landmark case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., decided in the year of 1947 by the Kings Bench, Lord Greene, M.R. has held that a decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the Court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. The aforesaid principle which is more popularly known as "Wednesbury Principle of Reasonableness" has been referred to by the Hon'ble Supreme Court in a catena of decisions. In the case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651, Hon'ble Supreme Court had laid down two other facets of irrationality:

"(1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld.

(2) A decision would be regarded as unreasonable if it is partial and unequal in its operation as between different classes."

12. By going through the law laid down on the subject of scope of judicial review, what is required to be examined can be summarized into the following facets-

i. Whether the decision has been taken by the incumbent authorized for the said purpose and having the jurisdiction to do so;

ii. Whether the decision arrived at is a reasonable one;

iii. Whether the relevant factors have been taken into consideration before arriving to the said decision;

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iv. Whether the decision is based on irrelevant and extraneous consideration;

v. Whether the decision is vitiated by bias and mala fide.

13. In the instant case, it is seen that the complaints are verbal in nature and the persons making such complaints were unwilling to disclose their personal identities. Acting on such anonymous complaints is not only unwarranted but would also affect the administration, apart from infringing the legal rights of the petitioner who is armed with the shifting permission duly granted by the Excise Department vide communication dated 18.09.2021.

14. In view of the above, this Court has no hesitation but to allow the writ petition by directing the Deputy Commissioner, Nalbari district to take immediate steps to facilitate shifting of the IMFL "ON" shop of the petitioner to the new location at Katla Barkuchi in the District of Nalbari. The petitioner may, accordingly be notified regarding any formalities to be fulfilled to facilitate the shifting in terms of the order dated 18.09.2021. Since the matter is pending for almost ten months, the shifting be facilitated to be done immediately and in any case within an outer limit of one month from today.

15. The writ petition accordingly stands allowed.

16. No order as to cost.

JUDGE

Comparing Assistant