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2021 DIGILAW 460 (GAU)

Litumoni Nath, W/o, Pankaj Deka v. State of Assam, Rep. by The Principal Secretary

2021-08-03

M.R.PATHAK, SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. The matter is taken up today through video conferencing. 2. Heard Mr. B. Kaushik, learned counsel for the appellant. Also heard Mr. P.N. Goswami, learned Additional Advocate General, Assam for the respondents. 3. This writ appeal has been filed by the appellant challenging the order of the learned Single Judge dated 22.02.2021 passed in a bunch of writ petitions, whereby the prayers made in the writ petitions did not find favour with the learned Single Judge and the writ petitions were dismissed. 4. The present appellant Smt. Litumoni Nath was the petitioner in W.P.(C) No. 4872/2020. The petitioners in all the writ petitions had a licence to run I.M.F.L. ‘On’, Shops and they were given such a licence to run a liquor shop at a given place in a given district. All of them wanted that they should be allowed to shift/transfer their liquor shops to another place in another district. In other words, their prayer was for an inter-district transfer. The relevant provision under which these transfers were made earlier was Rule 294 of the Assam Excise Rules, 2016.The said Rule 294 reads as under: “294. The opening, shifting and closures of any licensed premises shall be done by the District Collector with the previous sanction of the State Government. Such opening, shifting and closure shall not be granted— (a) unless it has been satisfactorily established by local enquiry that proposed action is necessary in the interest of public; (b) until any objection, which may have been filed on the subject have been considered by the District Collector; (c) unless the Application Fee prescribed is paid.”. 5. It appears that enquiries were made by the concerned Collector, which was presumably in favour of the petitioners, but since ultimately sanction had to be given by the State Government before transfer order could be made in their favour and since it was not being done by the State Government, all of them approached this Court by filing different writ petitions, WP(C) No. 441/2021 WP(C) No. 3096/2020 WP(C) No. 5055/2020 WP(C) No. 4826/2020 WP(C) No. 4872/2020, which were heard and disposed of by the learned Single Judge by a common order as already referred above. 6. At this stage, it would be relevant to mention that even prior to filing of these writ petitions, the State Government had amended the Assam Excise Rules, 2016. 6. At this stage, it would be relevant to mention that even prior to filing of these writ petitions, the State Government had amended the Assam Excise Rules, 2016. This amendment dated 30.10.2020 was duly notified in the Assam Gazette on 31.10.2020. This amendment not only amended existing Rule 294, but also inserted a new Rule 294-A in the Rules. The new 294 Rule substituted in place of the then existing Rule 294 reads as under: “294. The opening and closures of any licensed premises shall be done by the District Collector with the previous sanction of the State Government. Such opening and closure shall not be granted,-- (a) unless it has been satisfactorily established by local enquiry that proposed action is necessary in the interest of public; (b) until any objection, which may have been filed on the subject have been considered by the District Collector; (c) unless the Application Fee prescribed is paid.” 7. Thus, we find that the important change here is that the word “shifting” existing in the earlier Rule 294 was omitted from the new Rule 294. 8. The newly inserted Rule 294-A reads as under: “294-A (1): The shifting of premises licensed for wholesale or retail vend of foreign liquor, country spirit and heritage alcoholic beverages from one location to another within the same district shall be allowed by the Excise Commissioner or the District Collector as the case may be, with prior approval of the State Government. No inter district shifting of any licensed premises shall be allowed. (2) The shifting of licensed premises shall be subject to the fulfillment of the following conditions, namely:- (a) That the Gaon Panchayat/Municipality or Town Committee/Municipal Corporation concerned in whose area the premises licensed for wholesale or retail vend is proposed to be shifted has given no objection to that effect. (b) That the proposed premises are free from the distance restriction and other criteria as provided under rule 289. (b) That the proposed premises are free from the distance restriction and other criteria as provided under rule 289. (c) That the Excise Commissioner or the District Collector, as the case may be, shall consider only such proposals where the shifting is essential due to the following situations:- (i) licencee whose premises are affected by the implementation of Development Scheme such as road widening or other similar reasons; (ii) cases where the licencee is running his licensed shop at a place under rental deed and the landlord or owner of the place do not agree to extend the term of the lease; (iii) cases where the shifting is essential due to Hon’ble Court’s order; (iv) cases where the Excise Commissioner or the District Collector as the case may be, is satisfied that the shifting is required arising out of circumstances such as change of existing rules or procedures, which are beyond the control of the licencee; (v) cases where the Excise Commissioner or the District Collector is satisfied that the shifting is necessary in the interest of the public.” (emphasis provided) 9. Thus, under the present provision, as it stands after the amendment in 2020, there was no provision in law for shifting of a shop from one district to another. 10. Till the time of the above amendment, no sanction had been given by the State Government and by the time the writ petitions could be filed, the Rule had already been amended where it was not possible for the State Government to grant any such inter-district transfer as was earlier permissible under the unamended Rule 294. The case of the petitioners before this Court, however, was that a right had accrued to them under Section 66. The case of the petitioners before this Court, however, was that a right had accrued to them under Section 66. Effect of repeal.—Where any Act repeals any enactment hitherto made, or hereinafter to be made, then, unless a different intention appears, the repeal shall not— (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) alter the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect an penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. of the Assam General Clauses Act, 1915, inasmuch as even after the repeal their rights for transfer of their shops would survive since their case will be governed by the unamended Rule 294, where they had such a right. This is based on their claim that their applications before the Deputy Commissioner were moved prior to the amendment. Hence this right ! 11. We are afraid the argument advanced on behalf of the petitioners before the learned Single Judge was based on misreading of Section 6 of the Assam General Clauses Act as well as the unamended Rule 294 of the Assam Excise Rules, 2016. Section 6 of the Assam General Clauses Act states that the effect of repealment of an enactment would inter alia not “affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed”. By merely moving an application under Rule 294 of the 2016 Rules, no right, privilege or obligation had occurred on such petitioners/applicants. Neither the Deputy Commissioner, nor the Government was under any obligation to pass an order in favour of the petitioners shifting their shops from one district to another. Shifting of a liquor shop is based on a lot of considerations, including the reports of the concerned authorities including the Deputy Commissioner. Neither the Deputy Commissioner, nor the Government was under any obligation to pass an order in favour of the petitioners shifting their shops from one district to another. Shifting of a liquor shop is based on a lot of considerations, including the reports of the concerned authorities including the Deputy Commissioner. The final determining authority was the State Government as the transfer was to be made from one district to another and it could not have been merely the decision of one Deputy Commissioner of a district. Therefore, merely moving an application or even reports, recommendations etc. being done on the basis of that application would not ipsofactogive any right or privilege to the petitioners/applicants. 12. The learned Single Judge was of the opinion, and rightly so, that no right had accrued to the petitioners as right can only accrue after sanction had been given by the State Government. Before the State Government could give sanction, the Rule stood amended with effect from 30.10.2020, whereby inter-district shifting was made impermissible. The learned Single Judge has rightly relied upon the two decisions i.e. State of Tamil Nadu –vs-M/s. Hind Stone and Others, 1981) 2 SCC 205 and Messrs Rayala Corporation (P) Ltd. And M.R. Pratap –vs-Director of Enforcement, New Delhi, (1969) 2 SCC 412 on the aforesaid point. 13. The learned Single Judge has also relied upon the decision of the Hon’ble Apex Court in Khoday Distilleries Ltd. and Others –vs-State of Karnataka and Others, (1995) 1 SCC 574 , wherein it has been held that a citizen has no fundamental right to trade or do business in liquor. 14. Further, trade in liquor, in any case, is res extra commercium. (State of Punjab &Anr.–vs-Devans Modern Breweries Ltd. &Anr., (2004) 11 SCC 26 and Mohan Meakin Limited –vs-State of Himachal Pradesh &Ors. (2009) 3 SCC 157 ). The State Government has got unfettered powers to regulate the business of liquor which would include IMFL. Apart from normal considerations which are there before the State Government in regulating an ordinary trade, in cases of trade of liquor, the Government has to consider various other factors, which includes public health. In view thereof, there is absolutely no anomaly, much less violation of any right, if the shifting or transfer of liquor shops has been denied by the State Government. In view thereof, there is absolutely no anomaly, much less violation of any right, if the shifting or transfer of liquor shops has been denied by the State Government. In fact, under the present law prevailing in the State of Assam, such a shifting/transfer is not even permissible. 15. In view of the above, we uphold the findings of the learned Single Judge. 16. We thus find no merit in the present writ appeal. The appeal is accordingly dismissed.