Gauhati High Court
Dipak Boruah vs The State Of Assam And 4 Ors on 29 March, 2023
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010065612023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1745/2023
DIPAK BORUAH
S/O- SRI BUBUL BORUAH, R/O- VILLAGE- DOOLAHAT, P.O. DOOLOHAT,
P.S. LALUK, DIST.- LAKHIMPUR, ASSAM, PIN- 787023
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EXCISE
DEPTT., DISPUR, GHY-6
2:THE COMMISSIONER OF EXCISE
ASSAM
HOUSE-FED COMPLEX
DISPUR
GHY-6
3:THE DEPUTY COMMISSIONER
LAKHIMPUR
NORTH LAKHIMPUR
4:THE SUPERINTENDENT OF EXCISE
LAKHIMPUR
NORTH LAKHIMPUR
5:THE INSPECTOR OF EXCISE
LAKHIMPUR DISTRICT (S) CIRCLE
NORTH LAKHIMPU
Advocate for the Petitioner : MR. J C GOGOI
Advocate for the Respondent : GA, ASSAM
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
29.03.2023 Mr. J.C. Gogoi, learned counsel for the petitioner prays that the order dated 31.12.2022 passed by the Deputy Commissioner, Lakhimpur, cancelling the petitioner's licence to run an IMFL 'ON' shop should be set aside. The petitioner's case in brief is that he had applied for running an IMFL 'ON' shop in Dag No.771 of Periodic Patta No.125. The licence was granted on 20.04.2022. However, while running his IMFL 'ON' shop, one Ananda Mandal, Son of Late Gyenendra Mandal approached the petitioner and informed him that the place from where the petitioner was running his business belonged to Shri Ananda Mandal.
In view of the above, the petitioner approached the concerned Lat Mandal for identification of his plot of land. Thereafter the petitioner shifted his liquor vend to a place 15 feet away, on land covered by Dag No.795, Periodic Patta No.279.
The petitioner's counsel submits that subsequent to the shifting of the liquor vend by the petitioner, the Deputy Commissioner, Lakhimpur issued a show- cause-notice dated 08.06.2022 to the petitioner, suspending the licence granted to the petitioner, to run the liquor vend, on the ground that he had violated Rule 58(b) of Assam Excise Act, 2000.
The petitioner thereafter submitted his reply to the show-cause-notice on 15.06.2022, stating that due to his ignorance of the Excise Act, he had started a Page No.# 3/5 new shop in the same Dag near his restaurant. He also admitted that he did not inform the department about the new shop. Further he begged for forgiveness, as he had committed an act in violation of the Excise Act. He also admitted his guilt and promised not to do such an act in future.
Thereafter the Deputy Commissioner, Lakhimpur, vide order dated 04.08.2022, cancelled the licence issued to the petitioner in terms of Section 58(b) and Section 30(c) of the Assam Excise Act, 2000.
The petitioner filed an appeal under Section 7 of the Assam Excise Act, 2000, before the Assam Board of Revenue, wherein the appeal was registered as Case No.3E(L)/2022. Case No.3E(L)/2022 was disposed of by the Assam Board of Revenue, vide order dated 19.10.2022, by holding that the Deputy Commissioner in his show-cause-notice dated 08.06.2022, had not mentioned as to which conditions of the licence was violated by the petitioner and in what manner. Therefore, in the interest of natural justice, the point of inquiry should have been disclosed to the petitioner to enable him to file a explanation on the points of enquiry. The Assam Board of Revenue in it's order dated 19.10.2022, remanded the matter back to the Deputy Commissioner, Lakhimpur, for fresh disposal of the case, after disclosing to the petitioner the conditions of the licence which had been violated and with a direction that the petitioner should be given an opportunity of being heard.
Subsequent to the order dated 19.10.2022 passed by the Assam Board of Revenue in Case No.3E(L)/2022, show-cause-notice dated 18.11.2022 was issued to the petitioner, asking him to submit his reply as to why he had applied for a liquor licence for "D.B. Restaurant", by showing a flex banner in his application, which actually was "Maa Hotel", belonging to Sri Ananda Mandal and located on land covered by Dag No.789 and Periodic Patta No.244. Further, Page No.# 4/5 the petitioner in his application prayed for a licence in respect of 'D.B. Restaurant', while showing the photographs of "Maa Hotel". As such, the show- cause-notice also required the petitioner to explain as to why he had provided false information in his application and lied in his affidavit with regard to his application. Further, the show-cause-notice also required the petitioner to explain why he shifted his location on which the licence was given, thereby misguiding the authority and violating licence condition no.iii.
The petitioner thereafter filed his reply to the show-cause-notice dated 18.11.2022, stating that he had applied for an IMFL 'ON' shop on land covered by Dag No.771 under Period Patta No.125. However, as Ananda Mandal, Son of Late Gyenendra Mandal had claimed the property as his own, the petitioner had shifted his IMFL 'ON' shop to another plot of land, after being told by the Lat Mandal that the plot adjacent Dag No.771 was his land. The petitioner thereafter stated that there was no malafide on the part of the petitioner and accordingly prayed that he may be allowed to shift his liquor vend to his actual land.
Subsequent to the above, the impugned order dated 31.12.2022 was passed by the Deputy Commissioner, Lakhimpur holding that the petitioner had intentionally provided wrong information in his application form, regarding location of his restaurant namely 'D.B. Restaurant'. Further, on perusal of the records of Trade Licence from Nawboicha Gaon Panchayat, the same showed that 'Maa Hotel', which was running in the location mentioned in the petitioner's application form, had obtained Trade Licence much prior to the Trade Licence obtained by the petitioner's 'D.B. Restaurant', which proved that the 'D.B. Restaurant' was never located at the premise mentioned in the petitioner's application form. Further, the petitioner had shifted his liquor vend without Page No.# 5/5 approval of the Collector which was not admissible and in violation of licence conditions no.iii which states as follows :
"That he make no alternation in the arrangement of the premises, which has been approved by the Collector without his previous approval".
The petitioner's licence was thereafter cancelled under Section 58(b) and Section 30(c) of the Assam Excise Act, 2000.
Issue Notice returnable in 6 (six) weeks.
Mr. N. Goswami, learned counsel accepts notice on behalf of all the respondents. He is given time to obtain instructions and file affidavit, if necessary. He shall also produce the records.
List the matter after six weeks.
JUDGE Comparing Assistant