Court affirmed that an educational institution lacking current regulatory approval cannot enforce distance requirements against a licensed business operating before its establishment.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. R. M. Deka, the learned counsel appearing on behalf of the petitioner. Also heard Mr. R. R. Gogoi, the learned counsel appearing on behalf of the Excise Department; Ms. U. Das, the learned Additional Senior Government Advocate who appears on behalf of the District Commissioner, Kamrup (Metro); Ms. P. Das, the learned counsel appearing on behalf of the Secondary Education Department of the Government of Assam as well as Mr. B. J. Ghosh, the learned counsel who appears on behalf of the respondent No.6.

2. The petitioner herein has approached this Court seeking an appropriate writ direction and order for quashing the communication dated 27.04.2016 issued by the Joint Secretary to the Government of Assam, Excise Department thereby directing the petitioner to shift his IMFL “OFF” License Shop to any other location on the ground of violation of Rule 183 of the Assam Excise Rules, 1945. The petitioner further seeks appropriate directions that the petitioner may be permitted to continue to run the IMFL “OFF” License Shop in the name and style of “M/s Rishi’s Wine Hut” from the existing location at Bora Marketing Complex, R.G. Baruah Road, Guwahati.

3. At the outset, it is pertinent to observe that the Assam Excise Rules, 1945 have been superseded by the Assam Excise Rules, 2016 (for short, ‘the Rules of 2016’).

4. In the backdrop of the above, let this Court now take note of the relevant facts which led to the filing of the instant writ petition.

5. The petitioner herein was issued an IMFL “OFF” License Shop on 23.07.1998 in a location situated at Bora Market Complex, R.G. Baruah Road, Guwahati-5. Pursuant thereto, the petitioner continued to run the IMFL “OFF” License Shop without any disturbance. On 25.02.2016, a complaint was made by the Secretary of the respondent No.6 to the Secretary, Excise Department alleging that the said petitioner's IMFL “OFF” License Shop is within 20 meters of the respondent No.6 which is a Degree College affiliated to the Gauhati University providing Higher Secondary and Degree Courses. The said communication was followed by another representation dated 29.05.2016 to the Staff Officer, Office of the Chief Secretary, Assam by the respondent No.6. Resultantly, the impugned communication was issued on 27.04.2016, thereby directing the petitioner to shift the petitioner's IMFL “OFF” License Shop to any other location in conformity with the Assam Excise Rules, 1945, within 15 days, failing which the license was to be cancelled. It is under such circumstances, the present writ petition has been filed.

6. The record reveals that pursuant to the filing of the instant writ petition, this Court issued notice and further stayed the impugned order dated 27.04.2016. The interim order thereupon has been continued from time to time.

7. The record reveals that the respondent No.6 had filed an affidavit-in-opposition supporting the impugned order dated 27.04.2016 and stating inter alia that the petitioner's IMFL “OFF” License Shop cannot be allowed to be continue in view of the violation to Rule 183 of the Assam Excise Rules, 1945. It is interesting to take note of that in the said affidavit-in-opposition filed by the respondent No.6, the permission for the respondent No.6 to run its educational institution issued by the Assam Higher Secondary Council, Bamunimaidan, dated 22.04.2002 had been enclosed. A perusal of the said permission reveals that the respondent No.6 was permitted to run its educational institution at R.G. Baruah Road, Guwahati with a condition that the said educational institution would be shifted to its own building constructed in its own land within 3 years, failing which permission shall be withdrawn.

8. At this stage, it is also very pertinent to mention that the respondent No.6 was granted permission to run an educational institution at Ahomgaon, Kotakipara Road, Guwahati-781035 and this permission has been continued from time to time. However, there is nothing on