High Court · 2009

Considering the grievances raised and as agreed to by the learned counse l for the parties, this writ petition is disposed of at the admission stage itse lf. This application has been filed under Article 226 of the Constitution of India for a direction to the authority concerned to quash/cancel the entire pro cess initiated for granting a beer bar license at village Kabaitary in favour of respondent No.4. The petitioner’s case in brief is that he is a son of a freedom fighter who has been granted India Made Foreign Liquor (IMFL for short) off shop license in the year 1998. Subsequently his license was converted to a firm in the name and style as M/s. Kalita Enterprise which is a registered business firm and the petitioner is one of the three managing partners of the said firm. The petitione r came to know that respondent No.4 has applied for a beer bar license within a distance of about 100 meters from the petitioners IMFL off shop. The petitioner’ s further case is that granting of license to the respondent No.4 is not permiss ible as per Rule 182 of the Assam Excise Rules 1945 (1945 Rules for short). Howe ver, the authorities is going to grant the license in favour of respondent No.4 dehors the Rules and also by ignoring the objection raised by the public as well as the petitioner. Even on 13.05.2009, the petitioner has submitted an applicat ion before the Deputy Commissioner, Bongaigaon (respondent No.3), praying therei n not to issue any license of beer bar to the respondent No.4. However, no order has been passed on the said application and thus the instant application with t he aforesaid prayer. The instant writ petition came up for motion hearing on 29.05.2009. While issuing notice of motion in the case, this Court as an interim ord er directed not to issue the proposed beer bar license in favour of respondent N o.4 till the returnable date i.e.till 13.07.2009, which was later on extended. I n the meanwhile, an application for vacating the stay order has been filed on be half of respondent No.4. Mr. Barua, learned counsel appearing for the respondent No.4 has submitt ed that Rule 182 of the 1945 Rules stands amended as on 18.03.2005 and the amend ed Rule 182 reads as follows: (cid:28) In the principal Rules, in rule 182, for the words (cid:28)five Kms (cid:29) appearin g at the end of the provision, the words 3 kms, in respect of country spirit sho ps and 1 km in respect of India Made Foreign Liquor shops except in Urban areas and in Urban areas 100 Meters in both the cases (cid:28)shall be substituted. (cid:29) Referring to the aforesaid Rules, Mr. Barua, has submitted that the dist ance between the petitioner’s shop and the shop of the respondent No.4 would be as per the amended Rules and accordingly there is no bar for issuing license ins pite of existence of one (cid:28)Off Shop Bar (cid:29) of the petitioner. Mr. Barua, has furthe r submitted that various organizations have issued no objection letters in favou r of the respondent No.4 for opening a beer bar at village Kabaitary, moreso, th e respondent No.4 is a widow, having two minor daughters and she is looking afte r her family and the license she applied for an (cid:28)IMFL On Shop (cid:29) Bar license which is quite different from the one that petitioner is having for he being an (cid:28)IMFL Off Shop (cid:29) Bar licensee. In reply to the submission so made on behalf of the respondent No.4, Mr. Das, has submitted that for granting an On shop license, (cid:28)no objection certific ate (cid:29) from the concerned Gaon Panchayat is mandatory under Rule 191 of the 1945 R ules. Rule 191 of 1945 Rules is quoted hereunder: (cid:28) The opening, shifting, amalgamation and closure of any licensed premis es shall be done by the District Collector with the previous sanction of the Sta te Government. Such opening, shifting, amalgamation and closure shall not be gra nted - (a) unless it has been satisfactorily established by local enquiry that t he proposed action is necessary in the interest of public; and b) until any obje ctions, which may have been filed on the subject have been considered by the Dis trict Collector. Objections from local bodies and from the following persons will be considered- (i) In the case of Corporation, Municipality or Town Committee areas- The Co rporation, Municipality or Town Committee concerned to which such proposal relat es; (ii) In the case of areas not situated in a Corporation, Municipality or Town Committee- The Gaon Panchayat concerned. The owners or occupiers of the neighbourhood of the premises involved. Managers of the tea estates or factories in which more than 100 persons (a) (b) (c) are employed: Provided that the whole or any part of the jurisdiction of the Gaon Panchayat or land owned or occupied by tea estate or factory is situated within 5Kms of the site of the shop or any of the shops concerned. (cid:29) Mr. Das has further submitted that as per Rule 189 of the 1945 Rules lic enses for the sale of foreign liquor for consumption ’on’ or ’off ’ the vendor’s premises shall be granted only in places where there is a proved demand on the part of a class of drinkers accustomed to foreign liquor and in the instant case there is no such further demand from any quarter. No affidavit-in-opposition has been filed on behalf of State respondents as well as respondent No.4. However, the respondent No.5 has filed a miscellane ous case being M.C.No.1778/2009, praying for modification or vacation of the int erim order passed by this Court on 29.05.2009. The respondent No.4 has not denie d the allegation that she proposed to open the Beer Bar in question within 100 m eters from the IMFL shop of the petitioner. Apart from that the respondent No.4 has not clarified the factual position in respect of ’no objection certificate’ of the Gaon Panchayat concerned. Keeping in view the provisions stipulated in the statutory Rules as well as the facts in issue, I hold that the respondent authority i.e. respondent No. 2 would be best person to take appropriate decision on the matter. Accordingly I remand the matter to the respondent No.2 to take a decision on the application of respondent No.4 for issuing the license in question. It is made clear that wh ile acting on the said application, the respondent No.2 shall strictly follow th e provisions laid down in Rules 180, 182, 183, 189 and 191 of the 1945 Rules. With the above direction, this writ petition stands disposed of. The int erim order passed on 29.05.2009 is merged with this order. However in the facts and circumstance of the case, there shall be no order as to cost.