Gauhati High Court
The 119 No. Kumarparta-Niz-Joynagar ... vs Shri Jayanta Prasad Banik And 4 Ors on 21 January, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010085232018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1587/2018
1:THE 119 NO. KUMARPARTA-NIZ-JOYNAGAR GAON PANCHAYAT AND 4
ORS
P.O. ARUNACHAL,, DIST- CACHAR, ASSAM, PIN-788025, REP. BY ITS
PRESIDENT NAMELY, SHRI RANJAN CHANDRA ROY, AGE- 42 YRS,
2: THE HEAD TEACHER
RABIJUL ALI ACADEMY BALIGHAT
P.O. ARUNACHAL
DIST- CACHAR
PIN-788025
REP. BY ITS HEAD TEACHER NAMELY RUMKI CHOUDHURY
AGE-55 YRS
3: THE PRINCIPAL
ZILKADAR ALI H.S. SCHOOL
BALIGHAT
P.O. ARUNACHAL
DIST- CACHAR
PIN-788025
REP. BY ITS PRINCIPAL NAMELY
MD. ABU HENA
AGE- 50 YRS
4: THE PRESIDENT
HUMANITY FOUNDATION
BALIGHAT
P.O. ARUNACHAL
DIST- CACHAR
PIN-788025
REP. BY ITS PRESIDENT NAMELY
ABDUL MUKTADIR BARLASKAR
Page No.# 2/7
AGE- 38 YRS
5: ABDUL MUKTADIR BARLASKAR
S/O- HABIBUR RAHMAN BARLASKAR
VILL- UJANGRAM
P.O. ARUNACHAL
DIST- CACHAR
PIN-78802
VERSUS
1:SHRI JAYANTA PRASAD BANIK AND 4 ORS
S/O- AJOY NARAYAN BANIK, R/O- VILL- BORO RAMPUR, P.O. DALU, DIST-
CACHAR, ASSAM, PIN-788111
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
EXCISE DEPTT.
DISPUR
GHY-6
3:THE COMMISSIONER OF EXCISE
ASSAM
HOUSEFED COMPLEX
DISPUR
GHY-6
4:THE DY. COMMISSIONER
CACHAR
PIN-788001
5:THE SUPERINTENDENT OF EXCISE
CACHAR
SILCHAR
ASSAM
PIN-78800
Advocate for the Petitioner : MR. P J SAIKIA
Advocate for the Respondent : MR. N J KHATANIAR
Page No.# 3/7
Linked Case : WP(C) 1185/2018
1:JAYANTA PRASAD BANIK
S/O SHRI AJOY NARAYAN BANIK
R/O VILL- BORO RAAMPUR
P.O. DALU
DIST. CACHAR
ASSAM
PIN - 788111.
VERSUS
1:THE STATE OF ASSAM AND 8 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-6.
2:THE COMMISSIONER OF EXCISE
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI- 781006.
3:THE DEPUTY COMMISSIONER
CACHAR
PIN - 788001.
4:THE SUPERINTENDENT OF EXCISE
CACHAR
SILCHAR
ASSAM
PIN - 788001.
5:THE 119 NO. KUMARPARA NIZ JOYNAGAR GAON PANCHAYAT
P.O. ARUNACHAL
DIST. CACHAR
PIN - 788025
REP. BY ITS PRESIDENT.
6:THE HEAD TEACHER
RABIJUL ALI ACADEMY
BALIGHAT
P.O. ARUNACHAL
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DIST. CACHAR
PIN - 788025.
7:THE PRINCIPAL
ZILKADAR ALI H.S. SCHOOL
BALIGHAT
P.O. ARUNACHAL
DIST. CACHAR
ASSAM
PIN - 788025.
8:THE PRESIDENT
HUMANITY FOUNDATION
BALIGHAT
BALIGHAT
P.O. ARUNACHAL
DIST. CACHAR
PIN - 788025.
9:SRI ABDUL MUKTADIR BARLASKAR
R/O TUPKHANA
BALIGHAT
P.O. ARUNACHAL
DIST. CACHAR
ASSAM
PIN - 788025.
Advocate for the Petitioner : MR. N J KHATANIAR
Advocate for the Respondent : SC
EXCISE DEPTT. MR P N GOSWAMI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 21-01-2019 Heard Mr. N.J. Khataniar, learned counsel for the petitioner as well as Mr. P.N. Goswami, learned Standing Counsel for the Excise Department appearing for the respondents No.1, 2, 3 and 4 and Mr. P.J. Saikia, learned counsel for respondents No.5 to 9.
2) The petitioner has an IMFL 'ON' licenced as well as 'country liquor' restaurant Page No.# 5/7 and bar at Dalughat (Rampur) under the name and style of M/S Bela Bar & Restaurant. In view of the restriction imposed by the Hon'ble Supreme Court regarding relocation of IMFL 'ON' shop along the National Highway, the petitioner had to shift the said bar from the existing location to a new location at Balighat, Niz-Joynagar, Borkhola, Cachar. Accordingly, after the petitioner had obtained the NOC from 119 No. Kamarpara Niz-Joynagar Gaon Panchayat to shift his Bar-cum-Restaurant to his new location. Accordingly, by order dated 18.09.2017 passed by the Excise Department, the petitioner had shifted his said Bar-cum- Restaurant to the new location and in this regard the Deputy Commissioner, Cachar had also issued the requisite permission to shift the said business to the new location and to operate 'country liquor' shop and the existing IMFL 'ON' shop. On 28.01.2018, the Deputy Commissioner had verbally directed the petitioner to close down the IMFL 'ON' cum country liquor shop on the basis of some complaints and thereafter a meeting was held by the Grievance Redressal Committee on 15.02.2018 on the complaint made against the petitioner. Thereafter, by order dated 20.02.2018 the Deputy Commissioner had ordered the closure of the IMFL 'ON' licence shop of the petitioner. Challenging the said impugned order dated 20.02.2018, this present writ petition has been filed.
3) The learned counsel for the petitioner has submitted that in the meanwhile on the basis of the interim order passed by this Court, the Deputy Commissioner, Cachar, Silchar by his order dated 31.03.2018 had suspended the order dated 20.02.2018 regarding closure of the IMFL 'ON' licence shop of the petitioner pursuant to which the Secretary, 119 No. Kamarpara Niz-Joynagar Gaon Panchayat had issued a fresh No-objection Certificate dated 08.10.2018, which has been brought on record by filing an additional affidavit on 07.12.2018.
4) In view of the stand taken by the petitioner, the learned counsel for the respondents No.5 to 9 has submitted that in view of the grant of No-objection Certificate by the 119 No. Kamarpara Niz-Joynagar Gaon Panchayat, the writ petition has become infructuous.
5) In the said context, the learned Standing Counsel Excise Department has referred to the minutes of the Grievance Redressal Committee, Cachar held on 15.02.2018 as well as impugned order dated 20.02.2018, and it is submitted that the authorities had referred to and relied on the objection submitted by the respondents No.5 to 9 and Page No.# 6/7 thereafter, upon visiting the site, the District Magistrate-cum-District Collector, Cachar had recorded his satisfaction regarding the closure of IMFL 'ON' shop of the petitioner. He has also submitted that in the meeting held on 15.02.2018, the petitioner had agreed to search for an alternative location to shift his IMFL 'ON' licence premises.
6) In this regard the learned Standing Counsel for the Excise Department has relied on the provisions of Rules 289, 294 and 295 of the Assam Excise Rules, 2016, and it is submitted that there is no provision in the Assam Excise Act and Assam Excise Rules for Gaon Panchayat to provide a No-objection Certificate, but under the scheme of the said Act and Rules, the Gaon Panchayat can merely raise an objection in terms of Rule 295.
7) Having considering the pleading on record and considering the submissions made by the learned counsel for the parties, this Court is inclined to direct the District Collector, Cachar, Silchar to re-visit his order No.CXE.46/2013-14/72(A) dated 20.02.2018 by undertaking a fresh investigation into the complaint made in respect of the IMFL 'ON'-cum- country liquor vending licence of the petitioner in respect of M/s. Bela Restaurant (Bar) of the petitioner and he shall pass fresh order on the complaint made by the respondents No.5 to 9 by considering the parameters as laid down in Rules 289, 294 and 295 of the Assam Excise Rules 2016 and by giving an opportunity of hearing to the respective parties/ stake holders.
8) The said exercise shall be done within a period of 4(four) weeks from the date of certified copy of this order, to be submitted by the petitioner before the District Collector, Cachar, Silchar within a period of 10(ten) days from today.
9) In view of the order passed today directing the Deputy Collector to re-visit his order dated 20.02.2018, this Court is inclined to set aside the said order bearing No.CXE.46/2013-14/72 dated 20.02.2018 passed by the District Magistrate-cum-Collector, Cachar, Silchar to facilitate the passing of a fresh order by him.
10) In terms of the above, this writ petition stands disposed of.
11) It is made clear that this order as well as the order dated 20.02.2018 passed by the Deputy Collector, Cachar, Silchar shall not influence him while deciding the matter afresh in accordance with law.
Page No.# 7/7 JUDGE Comparing Assistant