PIL/41/2022
2022 Latest Caselaw 3964 Gua

                                                                  Page No.# 1/12

GAHC010101132022




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

                      PIL NO.41     OF   2022
                      1. Biswa Nath Roy,
                      Son of Late Prafulla Roy.

                      2. Suraj Roy,
                      Son of Late Parichand Roy.

                      3. Bipul Kr. Mondal,
                      Son of Late Tezendra Narayan.

                      4. Sudha Biswas,
                      Son of Sunil Biswas.
                      All are residents of Kaldoba Part-I, PO: Agomoni,
                      District: Dhubri, Assam.
                                                            ......Petitioners
                                 -Versus-

                      1. The State of Assam, represented by the Chief
                      Secretary to the Government of Assam, Dispur,
                      Guwahati - 781006.

                      2. The Commissioner & Secretary, Excise Department,
                      Government of Assam, Dispur, Guwahati - 781006.

                      3. The Commissioner, Excise Department, Government
                      of Assam, Housefed, Assam - 781006.

                      4. The Deputy Commissioner, Dhubri, PO: Dhubri,
                      District: Dhubri, Assam - 783301.

                      5. The Superintendent of Police, Dhubri, PO: Dhubri,
                      District: Dhubri, Assam - 783301.
                                                                        Page No.# 2/12

                           6. Mayarani Sarkar,
                           Wife of Late Swapan Kumar Sarkar,
                           Resident of Village: Jhapusabari, PO & PS: Agomoni,
                           District: Dhubri, Assam, PIN - 783335.
                                                               ......Respondents

-B E F O R E -

HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Petitioners : Mr. A.R. Sikdar, Advocate.

For Respondent Nos.1, 4 & 5 : Ms. M. Bhattacharjee, Addl. Sr. Govt. Advocate, Assam.

For the Respondent Nos.2 & 3 : Ms. K. Saikia, Standing Counsel, Excise Department.

Date of judgment & order       : 30th September, 2022.


                            JUDGMENT & ORDER
(R.M. Chhaya, CJ.)

By way of this petition, styled as public interest litigation, the petitioners have prayed for the following main reliefs:-

"Under the above facts and circumstances, it is therefore prayed that Your Lordships would be pleased to admit this petition, call for the records, issue a Rule Calling upon the respondents to show cause as to why a writ in the nature of mandamus/certiorari shall not be issued directing/commanding the respondents -

1) to prohibit the respondents authority to install any Wine shop near the Agomoni Girls M.E. School or to any other Educational or religious Institutions like Mandir/Masjid and to the side of 17 No. National High Way at Agomoni of Dhubri district,

2) to set aside or quash wine shop licence if any issued to the private respondent for installing a Wine shop near to any Educational or religious institutions or near to the 17 No. national High way at Agomoni, district Dhubri and after perusal of records, hearing the parties and after showing cause or causes if any be pleased to make Page No.# 3/12

the rule absolute granting adequate relief as your lordship may deem fit and proper in the interest of Justice.

- And -

Further, pending disposal of the rule it is prayed in the interim that no wine shop may be installed near to any Educational or religious institution or near to 17 No. National High way at Agomoni in the interest of justice."

2. It is the case of the petitioners that a notice came to be circulated on 17.10.2021 (Annexure-1) inviting applications from the eligible candidates for issuing Wine Shop licence for Agomoni. It is the case of the petitioners that one Mayarani Sarkar (respondent No.6 herein) has been selected for issuance of the Wine Shop licence at Agomoni. The petitioners have further averred that the respondent No.6 has constructed an Assam Type RCC house situated near close to Agomoni Girls' M.E. School and on the side of National Highway-17, wherein the Wine Shop is going to be established. It is the case of the petitioners that the Wine Shop to be established is very near to educational institutions and much other religious worship, like mandir and mosque and that too on the roadside of the National Highway-17. The petitioners approached the respondent authorities including Minister of Excise Department, Government of Assam with a representation dated 07.05.2022, wherein it is contended that the distance of the school is only 50 Metres from the proposed Wine Shop of the respondent No.6. Since the representation was not answered so also the public complaint dated 07.12.2021, the present petition is filed.

3. It is alleged in the petition that the licence has been issued in violation of Rules 183 and 191 of the Assam Excise Rules, 1945. It is also contended that the respondent No.6, who has constructed an RCC Assam Page No.# 4/12

Type house to open the Wine Shop, is a pensioner being wife of an ex Lot Mondal and is having sufficient landed property as a source of income. It is also contended that her two daughters are serving in the Office of the Deputy Commissioner, Dhubri. The petitioners have relied upon the judgment of this Court in the case of Rubul Kanti Roy & Ors. -Vs- State of Assam & Ors., reported in 2000 (2) GLT 460 and has contended that the authorities while considering the question of issuance of licence for liquor shop must comply with the provisions of the relevant Rules and the provisions of the Act. Relying upon Rule 191 of the Assam Excise Rules, 1945, it is contended that the enquiry must be made in public interest and objection should be considered. The petitioners have also referred to and rely upon another judgment of this Court in the case of Prasanta Barpatra -Vs- State of Assam & Ors., reported in 2002 (2) GLT 292 and has contended that getting a licence for a retail shop of IMFL is not a matter of right and public good and larger interest of the society is to be considered while granting licence.

4. It is also contended that the decision to open a Wine Shop at Agomoni is in gross violation of the provisions of the Assam Excise Act, 1910 and the Assam Excise Rules, 1945. Relying upon the judgment of the Apex Court in the case of State of Tamil Nadu -Vs- K. Balu & Anr. (Civil Appeal Nos.12164-12166/2016), it is contended that the Government has to take recourse to all relevant circumstances, including the nature and extent of development in the area and object including the direction prohibiting the sale of liquor on National and State Highways, which has been violated in the instant case. It is also contended that the complaints and the representations filed by the public have not been disposed of and Page No.# 5/12

the same amounts to violation of natural justice guaranteed under Articles 14 and 21 of the Constitution of India and on the aforesaid grounds, the prayers are prayed for, as mentioned hereinabove.

5. In response to the notice issued by this Court, on behalf of the Deputy Commissioner (respondent No.4 herein), the Assistant Commissioner, Dhubri, has filed an affidavit-in-opposition. The respondent has contended that before issuing licence in favour of the respondent No.6, a report from the Inspector of Excise, Dhubri was obtained and as per the report, the distance of Agomoni Girls' M.E. School is 165 Metres and the National Highway is 240 Metres away from the site. It is contended that the proposal made by the respondent No.6 was in conformity with Rule 289(2) of the Assam Excise Rules, 2016. It is also contended that on receipt of the representation by the petitioners dated 07.05.2022, an enquiry was conducted and the Inspector of Excise (Sadar), Dhubri has submitted a report dated 06.06.2022, which was considered. The respondent has also contended that 25 persons staying in Agomoni eleka has signed the No Objection Certificate (NOC) in favour of the respondent No.6 to open IMFL "OFF" shop. It is contended that the Assam Excise Rules, 1945 has been replaced by the Assam Excise Rules, 2016 and as provided under Rule 295(iii) of the Rules of 2016, NOC has been obtained. It is contended that all criteria under the Assam Excise Rules, 2016, which would be applicable and as per the provisions of the Assam Excise Act, 2000, the application has been examined and thereafter the licence has been granted.

6. It is contended that before granting licence to the respondent No.6, the administration has looked into all aspects, including the provisions Page No.# 6/12

of the relevant Rules. The respondent No.4 has also produced on record a photocopy of the Certificate issued by the President of the Agomoni Gaon Panchayat, wherein it is stated that there is no residential house or any other institutions within 75 Metres from the selected Wine shop point. The respondent No.4 has also produced on record a copy of the NOC signed by 11 persons.

7. The respondent Nos.2 & 3 have also filed their affidavit-in- opposition and have reiterated that IMFL "OFF" shop at Agomoni is at a distance of 165 Metres from Agomoni Girls' M.E. School and 240 Metres away from the National Highway-17. The respondent Nos.2 & 3 have also contended that the proposal of the respondent No.6 is in conformity with Rule 289 of the Assam Excise Rules, 2016. It is also contended by the respondent Nos.2 & 3 that 25 persons of Agomoni eleka have signed an NOC in favour of the respondent No.6 to open IMFL "Off" Shop in that proposed site, which is in compliance with Rule 295(iii) of the Assam Excise Rules, 2016. It is also contended that the Assam Excise Rules, 1945 has been replaced by the Assam Excise Rules, 2016 and Assam Excise Act, 1910 has replaced by the Assam Excise Act, 2000. The respondents have also relied upon the relevant Rules.

8. The petitioners have also filed an affidavit-in-reply to the affidavit filed by the respondent No.4 and have reiterated the contentions as regards the distance and has contended that the same is not in conformity with the Assam Excise Rules, 2016. It is also alleged that the enquiry report is also not correct and the authority has already taken a partisan stand in favour of installing a Wine Shop. It is alleged that the report is one-sided and have wrongly issued the licence to the respondent No.6.

Page No.# 7/12

9. Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1, 4 & 5 and Ms. K. Saikia, learned standing counsel, Excise Department, appearing for the respondent Nos.2 & 3.

10. Mr. A.R. Sikdar, learned counsel appearing for the petitioners has contended that the distance of the proposed Wine Shop of the respondent No.6 is within the distance of 50 Metres. It is also contended that the NOC has not been granted and the residents of Agomoni have taken objection for opening the Wine Shop as it is very near to the School as well as the temple. Relying upon the judgment of this Court in Prasanta Barpatra (supra), it is contended by Mr. A.R. Sikdar, learned counsel appearing for the petitioners that to get a licence for running a retail shop of IMFL is not a matter of right but the same can be issued only on compliance of the provisions of the Act and the Rules and it is also to be seen what is in public good. It was also contended by Mr. A.R. Sikdar that the distance as stated in the affidavits-in-opposition is wrong and the petitioners rely upon their affidavit-in-reply to the affidavit-in-opposition filed by the respondents. On the aforesaid grounds, Mr. A.R. Sikdar, learned counsel for the petitioners contended that the petition be allowed and appropriate direction is required to be issued to the respondents, as prayed for.

11. Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1, 4 & 5 and Ms. K. Saikia, learned standing counsel, Excise Department, appearing for the respondent Nos.2 & 3, have relied upon their affidavits-in-opposition and Page No.# 8/12

have submitted that the licence had been issued in favour of the respondent No.6 on strict compliance of the Assam Excise Rules, 2016 and the Assam Excise Act, 2020. It was contended that as per the report, the distance of Agomoni Girls' M.E. School is at a distance of 165 Metres, whereas the proposed shop is situated at a distance of 240 Metres from the National highway-17. It was further contended that the licence has been issued after due examination and in accordance with the Rules. It was, therefore, submitted that the petition being misconceived, deserves to be dismissed.

12. No other or further submissions, contentions or grounds have been raised by the learned counsels appearing for the respective parties.

13. At the outset it deserves to be noted that in the body of the petition, the petitioners have relied upon Rules 183(2) and 191 of the Assam Excise Rules, 1945, which are admittedly replaced by the Assam Excise Rules, 2016. The main contention raised in the petition is breach of the Rules. In order to still, however, appreciate the contention of the petitioners, it would be appropriate to refer to Rule 289 of the Assam Excise Rules, 2016, which reads as under:-

"289.(1) The liquor shops of any description should not be located at sites to which the neighbours object on ground which upon enquiry appear to be reasonable and free from malice or ulterior motive.

(2) No IMFL and Beer retail 'OFF' licence or retail 'ON'' licence shall be established in Municipal Corporation areas within a distance of 50 (fifty) metres, in Municipality and Town Committee areas within a distance of 100 (one hundred) metres and in Gaon Panchayat or equivalent body areas within a distance of 150 (one hundred fifty) metres from any place of public worship or educational institution or hospitals. No licence for retail sale of liquor or any other intoxicants Page No.# 9/12

shall be granted at a site situated within 100 (one hundred) metres from the midpoint of any National or State Highway.

Explanation: 'distance' 'referred in sub-rule (2) above shall be measured from the mid-point of the entrance of the shop, alongwith the nearest paths by which a pedestrian ordinarily reaches to the midpoint of the Nearest gate of the institution, if there is compound wall and if there is no compound wall to the midpoint of the nearest entrance of the institution.

'Educational institutions' for the purpose of this rule means any Primary School, Middle School and High School recognized by the State Government or Central Government or any College affiliated to any University established by law, but does not include any private coaching or tutorial institution.

'Public place of worship' for the purpose of this rule means, a place of public worship having a pucca structure with a covered area of more than 200 square feet which is managed or owned by a registered public trust or a well-established and recognized management committee.

'Hospitals' for the purpose of this rule means, any Government Hospital, Primary Health Centre or Primary Health Unit and includes Private Nursing Home, which has facility of a minimum of 30 (thirty) beds for treatment, of inpatients.

For the purpose of this rule such part of National Highway or State Highway which are situated within the limits of any Municipal Corporation. Municipality or Town Committee, shall not be treated as restriction:

Provided that even when any place of public worship or educational institution or hospital comes into existence subsequent to the establishment of the licensed premises, the aforesaid distance provision shall apply, subject to the provision that the licensee shall be given a reasonable opportunity to shift or relocate his premises.

(3) Premises for the wholesale and retail sale of foreign liquor shall not be allowed within the same compound."

14. Sub-Rule (2) of Rule 289, inter alia, provides that no IMFL and Beer retail "OFF" licence shall be established in Municipal Corporation areas Page No.# 10/12

within a distance of 50 Metres in Municipality and Town Committee areas within a distance of 100 Metres and in Gaon Panchayat or equivalent Body areas within a distance of 150 Metres from any place of public worship or educational institution or hospitals. It is also further provided in the said Rules that no licence for retail sale of liquor or any other intoxicants shall be granted at a site situated within 100 Metres from the midpoint of any National or State Highway.

15. It is worthwhile to note that except oral assertion in the petition, no material is placed by the petitioners to show that the proposed Wine Shop of the respondent No.6 is in breach of Rule 289(2) of the 2016 Rules. Even at the time of hearing of this matter, nothing is produced on record even though enquired by this Court. The respondent No.4 has brought on record an enquiry made by the Inspector of Excise, Dhubri (Sadar). The report of the same at Annexure-II to the affidavit-in-opposition filed by the respondent No.4 clearly shows that each and every aspect in form of a checklist has been considered while preparing the said report. The said report as regard site information recites that there is no religious/ educational institutes and hospital at a distance of 150 Metres from the proposed site. It is also mentioned that there is only a M.E. School at a distance of 165 Metres from the proposed site. In further compliance to the Rule 289(2), the said enquiry report recites that the construction made by the respondent No.6 for proposed Wine Shop is at a distance of 240 Metres from the National Highway-17.

16. Thus, on such contemporaneous record submitted by the respondent authorities, this Court has no hesitation to come to the Page No.# 11/12

conclusion that there is compliance of Rule 289(2) of the 2016 Rules. The reference made by the petitioners in the petition to the old Rules has now no bearing, in view of the fact that Assam Excise Rules, 1945 has been replaced by the Assam Excise Rules, 2016. The record also indicates that 25 inhabitants have given NOC for installing IMFL Shop at Agomoni eleka, which is within the jurisdiction of Agomoni Police Station. Even the President of the Agomoni Gaon Panchayat has also given a Certificate as far as the distance is concerned. Thus, the allegation that the licence is granted in contravention of Rule 289(2) of the Rules is incorrect.

17. Considering the ratio laid down by two Division Benches of this Court in the case of Rubul Kanti Roy (supra) and Prasanta Barpatra (supra), there are no circumstances under which it can be said that grant of licence in favour of the respondent No.6 is not in public good. As held by this Court and as stated hereinabove, before issuance of licence in favour of the respondent No.6, the provisions of the Act and the Rules as applicable as on date, have been complied with. The other apprehensions ventilated in the petition are without any basis and material on record. It clearly appears from the record that the authorities have scrupulously followed the provisions of the Assam Excise Rules, 2016 read with relevant provisions of the Assam Excise Act, 2020. Even though not orally contended, financial condition of the respondent No.6 has no co-relation with the licence of IMFL. Though this Court is conscious of the fact that to obtain/get a licence of IMFL is not a matter of right as held by this Court in Prasanta Barpatra (supra), if the licence is granted on strict adherence of the Act and the Rules as applicable, the same cannot be termed as not in public interest or not for public good. There is no material on record even on that Page No.# 12/12

count.

18. In view of the above, no case for interference with the licence granted in favour of the respondent No.6 is made out. The petition being devoid of any merits deserves to be dismissed and is hereby dismissed. Parties to bear their own cost.

                      JUDGE                           CHIEF JUSTICE




Comparing Assistant