The impugned order was declared void ab initio due to non-compliance with principles of natural justice and lack of legal authority for closure.

JUDGMENT

Kalyan Rai Surana, J. - Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner, Mr. D. Gogoi, learned standing counsel for the Excise Department of the State i.e. respondents no. 1 to 5 and 7 and also heard Mr. K.K. Parashar, learned Govt. Advocate for respondent no. 6.

2. By way of this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed the order dated 13.01.2020, passed by the Superintendent of Excise, Barpeta (respondent no. 4), directing the petitioner to close his IMFL "ON" shop until the situation comes to a normal position and also to find out another suitable location for shifting his IMFL "ON" shop for maintenance of peace and harmony. In this writ petition, it is projected that after completion of due procedure, upon obtaining NOC from all concerned, and on prior approval from the Office of the Commissioner of Excise, Assam (respondent no.2), the Deputy Commissioner, Barpeta (respondent no.3) vide order dated 01.10.2019, issued IMFL "ON" licence no. 16/2019-20 to the petitioner, thereby permitting consumption of Indian made foreign liquor in the premises of the petitioner. It is projected that apprehending disruption of his business on the basis of manufactured complaint, the petitioner had approached this Court by filing W.P.(C) 263/2020 on 09.01.2020. However, in view of the impugned order dated 13.01.2020, the present writ petition has been filed.

3. In this case in hand, the Superintendent of Excise, Barpeta (respondent no.4) had exercised drastic power to close the shop of the petitioner without giving him any opportunity of being heard. The impugned order was passed without issuing any show cause notice and without any prior information to the petitioner about any complaint against his shop. Moreover, no opportunity was given to the petitioner of being heard during the enquiry conducted by the Circe Officer (respondent no.6). Hence, the Court would expect promptness of the part of the respondents to file their affidavit- in- opposition on receiving notice of this writ petition. The order to issue notice in this writ petition was passed 27.01.2020, and despite sufficient time of more than 7 (seven) months had been granted by orders dated 17.02.2020, 04.03.2020 and 19.03.2020, no affidavit- in- opposition has been filed by the respondents. Hence, the Court is inclined to invoke the doctrine of non- traverse and draw a presumption under section 114, Illustration (g) of the Evidence Act, 1872 to the effect that the reply, if any filed, would have gone against the respondents. Accordingly, the matter has been heard for final disposal.

4. The learned counsel for the petitioner has submitted that the impugned order dated 13.01.2020 revealed three points, firstly, that there was a public complaint before the Deputy Commissioner, Barpeta (respondent no.3), secondly, that the matter was enquired into by the Circle Officer, Sarthebari Revenue Circle (respondent no.6) and a detailed enquiry report was submitted to the Deputy Commissioner, Barpeta, and thirdly, that impugned order was issued after receipt of letter no. CAG.3/ 2019/Pt. dated 07.01.2020 from the Deputy Commissioner, Barpeta. It is submitted that the respondents have not been able to produce any document to show that the petitioner was ever informed to participate in the enquiry, as such, it is asserted that the purported enquiry by the Circle Officer (respondent no.6) was ex parte, by violating the principles of natural justice. It is submitted that the Superintendent of Excise, Barpeta (respondent no. 4) was not vested with power or authority to direct the petitioner to close his shop as the IMFL "ON" licence was granted by a superior authority on receipt of prior approval from the Government.

5. The learned standing counsel for the Excise Department of the State has submitted that he is yet to receive instructions. However, on a pointed query by the Court to show the relevant provisions in the Assam