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2006 DIGILAW 550 (ORI)

Nityananda Das v. State of Orissa

2006-07-21

L.MOHAPATRA, M.M.DAS

body2006
JUDGMENT M. M. DAS J. : This is an application in the nature of Public Interest Litigation by the petitioner who is a Ward Member of Village Chabishkud in the district of Dhenkanal. The petition¬er challenges the action of the opp.parties 1 to 4 in settling an Out Still Liquor Shop in favour of opp.party No.5 which was to be opened in village Kabera. The petitioner has stated in the writ petition that upon the opp.party No.4 issuing notice under Annex¬ure-1 inviting applications for settlement of Out Still Liquor Shop in the district of Dhenkanal for the year 2005-06 numbering around 14 main shops and 15 branch shops in different villages, one of which was proposed to be opened at village Kabera, several applications were received. It is stated in the writ petition that before issuing the notice in Form ‘A’ under Annexure-1, public objections were invited in accordance with Section 22 of the Bihar and Orissa Excise Act (hereinafter referred to as ‘the Act’) and despite such objections being filed, without consider¬ing the same, the Out Still Liquor Shop was settled in favour of opp.party No.5 through a process of lottery. There was serious objection raised by the general public of the locality for which the Government considering such resentment decided on 16.11.2005 that no new liquor shoes shall be henceforth sanctioned until further orders and the liquor shops that were sanctioned during that year but not yet settled, shall not be opened and further, no fresh proposal for sanction of new shops shall be entertain¬able until further orders. The petitioner alleges hat though sanction for opening an Out Still Liquor Shop at village Kabera was granted in favour of opp.party No.5, but was not opened due to resentment of the villagers of the said village and the peti¬tioner has come to learn that the opp.party No.5 has been permit¬ted to open the said shop in village Chabishkud instead of vil¬lage Kabera. Getting such permission, the opp.party No.5 has started construction of a house in village Chabishkud on a Gov¬ernment land for opening of the said shop. According to the petitioner, opening of the said Out Still Liquor Shop in the proposed site at village Chabishkud violates Rule 34 of the Rules framed under the Act and is within 100 mtrs. Distance from a temple, namely, “Kamakhya Mangala Mandir”. According to the petitioner, opening of the said Out Still Liquor Shop in the proposed site at village Chabishkud violates Rule 34 of the Rules framed under the Act and is within 100 mtrs. Distance from a temple, namely, “Kamakhya Mangala Mandir”. Various other objec¬tions which the villagers have for opening the said shop in village Chabishkud have been mentioned and narrated in the writ petition. On the above facts, the petitioner has prayed for quashing the settlement/sanction of the proposed opening of the Out Still Liquor Shop in village Chabishkud and directing the opp.party No.4 not to allow the opp.party No.5 to open the said shop in the above village. 2. By an interim order dated 17.1.2005, this Court direct¬ed that in the meanwhile, no liquor shop shall be opened in village Chabishkud. After passing of the said interim order, notice being issued to the opp.party No.5, the said opp.party No.5 has entered appearance and filed a return to the writ peti¬tion. 3. In the counter affidavit, the opp.party No.5 while denying the allegations made in the writ petition, has stated that on a public notice being issued in Form ‘A’ inviting objec¬tions as per Annexure-A/5, with regard to opening of Out Still Liquor Shop in village Kabera, no objection was received from any person. Therefore, the opp.party No.5 was selected in the lottery for opening of the said shop and on depositing the money has been favoured with a licence bearing No.13/05-06 on 30.7.2005. The licence has been annexed as Annexure-D/5 to the counter affidavit which is in respect of the Out Still Liquor Shop at village Kab¬era. The opp.party No.5 faced public resentment for which he requested the Collector, Dhenkanal to change the location of the shop to Chabishkud which is under the Kebera Grama Panchayat. The said request was acceded to by the Deputy Commissioner of Excise as would be evident from the letter under Annexure-D/5 to the counter affidavit. It has been further stated in the counter affidavit that the opp.party No.5 has not constructed any shop room over the Government land but he has constructed the same over a private land, on entering into an agreement for that pur¬pose with the land owner, which has been annexed as Annexure-E/5 to the counter affidavit of opp.party No.5. 4. It has been further stated in the counter affidavit that the opp.party No.5 has not constructed any shop room over the Government land but he has constructed the same over a private land, on entering into an agreement for that pur¬pose with the land owner, which has been annexed as Annexure-E/5 to the counter affidavit of opp.party No.5. 4. A separate counter affidavit has been filed on behalf of other opp.parties, inter alia, stating that no illegality has been committed in settling the Out Still Liquor Shop in favour of opp.party No.5. 5. Considering the submissions made and on perusal of the various notices, letters and other documents annexed to the pleadings of the respective parties, we find that the Out Still Liquor Shop as per Annexure-1 to the writ petition was proposed to be opened at Kabera covering all villages under the Grama Pan¬chayats of Kabera, Santhapur, Kaluria and Raitala. The said Out Still Liquor Shop was a main shop and the opp.party No.5 having been selected by a process of lottery, the said shop was settled with him by issuance of the licence dated 30.7.2005 on the terms and conditions mentioned therein, by the Collector, Dhenkanal. Subsequently, the opp.party No.5 being unable to open the shop at village Kabera, sought permission for shifting of the shop to a fresh site over plot No.251, under khata No.60/50 in mouza Chab¬ishkud which is under the Kabera Grama Panchayat. Permission being granted by the Excise authority on 14.10.2005, the opp.party No.5 opened the shop over the said new site. The policy decision of the Government for not opening any new liquor shops which have already been sanctioned during the year 2005 but not yet settled was taken on 16.11.2005. By that date, the opp.party No.5 was already settled with the said Out Still Liquor Shop. 6. In view of the above position, the contentions raised by the learned counsel for the petitioner that the settlement of the Out Still Liquor Shop in favour of the opp.party No.5, is in contravention of the provisions of the Act and the Rules framed thereunder and that the opp.party No.5 should not be permitted to open the said shop in view of the subsequent policy decision of the Government are not acceptable. 7. 7. We, therefore, find no illegality in settling the said Out Still Liquor Shop in favour of opp.party No.5 opened at village Chabishkud which is under Kabera Grama Panchayat. The writ petition is accordingly dismissed. L. MOHAPATRA, J. I agree. Petition dismissed.