Manas Barbora vs State of Assam and Others

J.N. Sarma, J.—This writ application has been filed against the order dated 7.2.91 passed by the Assam Board of Revenue holding mat an appeal is (sic) maintainable u/s 9(1) of the Assam Excise Act with regard to an order dated 18.6.90 passed by the Deputy Commissioner, Golaghat issuing Foreign Liquor retail off license at Dergaon.

Before we proceed further let us have a look at Rule 272(2) of the Assam Excise Rules, that is quoted below:

272(2) - Subject to R.1 �9 licenses for retail sale of foreign liquor for consumption ''on'' or ''off the vendor''s premises shall be granted by the District Collector with the previous sanction of the State Government.

Rule 339 is quoted below : 339. An appeal against the order of the Excise Commissioner, a District Collector, a Collector other than a District Collector shall lie to the Assam Board of Revenue.

Rules 339 to Rule 343 of the Assam Excise Rules, 1945 were amended in the year 1974. The bone of contention in the present case is that an appeal does not lie against the order of the grant of license by the District Collector inasmuch as the license was granted by the State Government and the license was merely issued by the Collector in pursuance of the order of the State Government.

I have heard Shri A.K. Bhattacharjee, learned Advocate for the Petitioner and Shri N.N. Dutta, learned Advocate for the Respondent No. 3. The question regarding issue of license of foreign liquor came up for consideration before this Court in a bunch of Civil Rules, e.g. Civil Rule No. 152/73, Civil Rule No. 153/73, and Ors. Doss Company and Private Limited v. State of Assam and Ors. date of judgment 21.9.82 wherein Rules 272 and 373 of the Assam Excise Rules as amended in August/74 was considered, wherein the Division Bench has pointed out as follows:

(i) The power of previous sanction may not necessarily mean itself making selection for granting a license, which is veritably the duty and function of the licensing authority. Thus the powers exercisable by the State Government in respect of issue of license have been regulated by the above provision of the Excise Act. The discretion to grant a license is left to the licensing authority, of-course subject to previous sanction.

(ii) The State Government can not act as the licensing authority.

The Quasi-judicial function of the license is sought to be usurped by the State Government. The State Government can only accord previous sanction.

If this is the position in law, the license which is granted by the District Collector Under Rule-272 as quoted above is the decision of the District Collector and not the decision of the State Government. The license must be deemed to be granted by the District Collector. The Dictionary meaning of the word "grant" is to bestow, to confer upon someone certain benefits. In the instant case the Rule itself and the decision of the Division Bench will show that the discretion to grant the license is left to the licensing authority. The order for the grant of license is passed by the District Collector and he is not merely the issuing authority. He merely does not act as a post office as found by the Division Bench of this Court.

In view of the decision of the Division Bench of this Court that the Collector has the discretion to grant a license, the order for issue of license passed by him shall be subject to appeal in the Assam Board of Revenue. Accordingly there is no merit in this writ application and the same is dismissed. The matter now shall go back to the Assam Board of Revenue for decision in-accordance with law.