RUNIMA DUTTA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This writ application has been filed challenging the legality and validity of the order dated 16.7.99 passed by the Assam Board of Revenue, Guwahati in Excise Appeal No. 17E(L) 99, and No. 23E (L) 99. In this particular case we are only concerned with the decision in the appeal No. 17E(L)99.

(2.) The brief facts are as follows: The Deputy Commissioner, Lakhimpur by an order dated 28.12.99 settled the North Lakhimpur C.S. Shop No. 1 at Hatilung in favour of the present writ petitioner Smt Runima Dutta for the period from 1.4.99 to 31.3.2002. The present respondent No. 3 filed an appeal before the Assam Board of Revenue on the following grounds: i) that he (respondent No.3) is an unemployed educated youth and belongs to Ahom Community which is recognised by the authority as OBC in Assam and as such he is entitled to get preference under Rule 223(2) of the Assam Excise Rules, 1945. Rule 223(2) is quoted below: "(2). In making settlement to any person preference shall always be given to the educated unemployed youths or to Co. operatives and Co-operative firms formed by such educated unemployed youth. Preference shall also be given to the persons belonging to the more backward community of the other backward classes." It was claimed by the writ petitioner that she is also educated unemployed youth. ii) That the writ petitioner is a set-up candidate backed by some backdoor financier like her father who in his own statement was an agent and partner of Laluk C.S. Shop. in) That the source of finance disclosed by the petitioner is not at all genuine and the writ petitioner failed to state the detailed source of finance in Column No. 11 in the tender as required and the person who wanted to finance her also did not have any established source of income. iv) It was further submitted that the sister and the husband of the sister have not established/substantial source of income and it is not believable that they can provide any amount to the writ petitioner for running the shop in question. Further a certificate was produced from the Mouzadar, North Lakhimpur wherein the Mouzadar certified that the income of Mr D Dutta, the father of the writ petitioner was Rs 13,000?- only per year and as such it raises a question how he will be able to finance such a huge amount to the writ petitioner from his genuine income.

(3.) The learned Board heard both the parties. Rule 208(4) of The Assam Excise Rules, 1945 provides as follows: "(4) Settlement of a shop shall have to be made by selection from amongst the tenderers for that particular shop, and the tenderers so selected shall also be financially sound to run the shops." So that rule itself envisages that the settling authority must be satisfied with regard to the financial soundness of the person in whose favour the shop is settled. The Board in para 5 of the judgment took up first the question of financial soundness of respondent No. 3 R Gogoi and after detailed discussion came to the following finding: