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2016 DIGILAW 1143 (GAU)

PADIP BASUMATARY v. STATE OF ASSAM

2016-12-19

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT : Ajit Singh, J. Heard on admission. The petitioner is an Indian Made Foreign Liquor Licencee (IMFL) having his licenced premises near the National Highway within Goan Panchayat Area. By amendment of Rule 183(2) of the Assam Excise Rules, 1945, it was mandated that no licence for retail sale of liquor or any other intoxicants shall be granted at a site situated within 200 meters of the mid-point of the National Highway. Although, this amendment was brought into force with effect from 30.12.2014, it was strictly implemented from 3.12.2015. Validity of the amended rule was also unsuccessfully challenged in WP(C) No.7976/2015. While dismissing the writ petition, vide judgment dated 8.1.2016, this High Court granted time to the petitioners therein to shift their liquor shops by 30.4.2016. Yet another WP(C) No.2900/2016 was filed taking a plea that amended provision under Rule 183(2) cannot be applied retrospectively. Even this petition was also dismissed. The petitioners of WP(C) No.2900/2016 reportedly gave an undertaking before the court that they would shift their shops within 45 days in conformity to the requirement of distance. The State Government thereafter decided to take fresh decision on the issue of distance of location of IMFL shops from the mid-point of National Highway. Having regard to this, number of writ petitions were filed, which were disposed of vide order dated 18.7.2016 with a direction that petitioners be granted further 4 months time to shift their IMFL shops. That period has also expired on 18.11.2016. In the meantime, the Assam Excise Rules, 2016 have been brought into force with effect from 1.9.2016. The relevant Rule 289(2) which deals with the location of liquor shops is quoted hereinbelow:- “Rule 289(2): No IMFL and Beer retail ‘OFF’ license or retail ‘ON’ license shall be established in Municipal Corporation areas within a distance of 50 (fifty) meters, in Municipality and Town Committee areas within a distance of 100 (one hundred) meters and in Gaon Panchayat or equivalent body areas within a distance of 150 (one hundred fifty) meters from any place of public worship or educational institution or hospitals. No licence for retail sale of liquor or any other intoxicants shall be granted at a site situated within 100 (one hundred) meters from the midpoint of any National Highway or State Highway.” (Emphasis supplied) According to the above quoted Rule, no licence for retail sale of liquor or any other intoxicants shall be granted at a site situated within 100 metres from the mid-point of any National or State Highway. The State Government has therefore issued order dated 17.11.2016 declaring all licenced premises of the retail IMFL, which are situated within 100 metres from the mid-point of National Highway or State Highway as closed with effect from 16.11.2016 because the licencees failed to shift their premises within the stipulated time of 4 months in compliance of High Court’s order dated 18.7.2016. It is also to be noted that an association of licencees of IMFL had challenged order dated 17.11.2016 in WP(C) No.7108/2016, but it was dismissed vide order dated 25.11.2016. There is however an explanation appended to Rule 289(2) which reads as follows:- “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.” In the present petition, the petitioner has challenged the constitutional validity of the above quoted explanation. According to petitioner, the explanation exempts those IMFL shops from the purview of 100 meters location from the midpoint of National Highway which are situated within the limits of Municipal Corporation, Municipality or Town Committee, but for the IMFL shops situated within the limits of Gaon Panchayat or other equivalent body, the distance of 100 meters restriction from midpoint of National or State Highway is applicable and this amounts to unreasonable classification among the same class. The Supreme Court very recently vide order dated 15.12.2016 passed in Civil Appeal Nos.12164-12166 of 2016 has directed that all States and Union Territories shall forthwith cease or desist from granting licences for the sale of liquor along National and State Highways and the prohibition shall also extend to and include stretches of such Highways which fall within the limits of a Municipal Corporation, City, Town or Local Authority. It is thus clear that the State Government is completely debarred from granting licences for the sale of liquor along National and State Highways including the stretches of such Highways which fall within the limits of Municipal Corporation, City, Town or Local Authority. We, accordingly, finally dispose of this writ petition with a recommendation to the State Government to immediately re-examine the impugned explanation in the light of above mentioned order dated 15.12.2016 of the Supreme Court. Also the petitioner has no choice, but to close his liquor shop on the State Highway. A copy of this order be sent to the Chief Secretary of the State of Assam for information and compliance of the order of Supreme Court.