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2010 DIGILAW 493 (ORI)

RASHMI RANJAN NAYAK v. MANOJ KUMAR MEHER

2010-07-21

M.M.DAS

body2010
JUDGMENT : M.M. Das, J. - Heard Mr. Kanungo, Learned Counsel for the Petitioner. I have also heard Mr. Mishra, Learned State Counsel. In spite of valid service of notice, the Opp. Party has not entered appearance. 2. The Petitioner filed an application Under Section 45-B of the Panchayat Samiti Act, 1959 (for short, 'the Act') before the Learned District Judge, Kalahandi, inter alia, alleging that the Opp. Party, who was elected as a member of the Panchayat Samiti of Junagarh Block from Chaichaiguda G.P., was disqualified to be elected as such as per the provision of Section 45(1)(o) of the Act. Specific allegation was made that the Opp. Party was holding a licence granted by the Superintendent of Excise, Kalahandi for dealing with foreign liquor in Foreign Liquor 'OFF' Shop at Dharmagarh. According to the Learned Counsel for the Petitioner, the same amounts to a subsisting contract made with the Government. The Learned District Judge, in the impugned order, while answering the said issue referring to the licence under Ext. A, came to the finding that the said licence was granted to the Opp. Party authorizing him to open a shop on renewal basis (I.M.F.L. "OFF" Shop No. 1), Dharmagarh under Dharmagarh Police Station in the district of Kalahandi, which is in force from 1.4.2009 till 31.3.2010 for a consideration amount of Rs. 45,000. The Learned Court found that the said licence relates to a shop outside the Junagarh Block and it has no concern with any work of Junagarh Panchayat Samiti nor there is any contract with the Junagarh Panchayat Samiti. 3. With regard to the contention of the Petitioner that the said contract amounted to a contract with the Government of Orissa, the Learned Court finding that the licence having not been granted by the President or the Governor like F-2 contract executed by the Public Works Department, the same cannot be held to be a contract made in exercise of the executive power of the State and it is a mere licence granted by the Collector, as a grant of exclusive privilege or manufacturing or sale of intoxicant which the Government can grant to any person Under Section 22 of the Bihar and Orissa Excise Act. Describing the procedure of grant of such licence and referring to various rules of the Orissa Excise Rules, Learned District Judge came to the conclusion that the said licence is not granted by the Government but such authority to whom power is delegated under the Statute. Accordingly, he held that the Opp. Party has not earned the disqualification and dismissed the application filed by the Petitioner. 4. Mr. Kanungo, Learned Counsel submits that the Supreme Court in the case of State of U.P. and Ors. v. Sheopat Rai and Ors. 1994 Supp. (1) SCC 8 has categorically held that such a licence is a" contract. The Supreme Court has referred to a Constitution Bench decision in the case of Har Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others wherein it has been held that there is no Fundamental Right to do trade or business in intoxicants. The State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. The wider right to prohibit absolutely would include the narrower right to permit dealings in intoxicants on such terms of general application as the State deems expedient. Since rights in regard to intoxicants belong to the State, it is open to the Government to part with those rights for a consideration. 5. It is further revealed that under the Bihar and Orissa Excise Act and the Rules framed thereunder for the State of Orissa, a licence granted to the person for consideration, to deal with IMFL by opening IMFL 'Off Shop is granted by the appropriate authority of the Excise Department of the State, who has been delegated with the power to grant such licence parting with the exclusive privilege of the State. Therefore, for all practical purposes, the said licence, for consideration, attains the nature of a contract between the Government and the licensee. The Learned District Judge was, therefore, clearly in error in holding that the said licence was not a contract entered into by the Government, just, because, the same was not granted by the Executive acting on behalf of the President or the Governor. The Learned District Judge was, therefore, clearly in error in holding that the said licence was not a contract entered into by the Government, just, because, the same was not granted by the Executive acting on behalf of the President or the Governor. It further transpires that Section 45(1)(o) of the Act does not contemplate that the contract should be within an area in the Panchayat Samiti. The provision is general in nature and whoever is interested in a subsisting contract made with any Government at the time of his election is disqualified to contest the said election. 6. In view of the above discussions and the law as laid down by the Apex Court, it is clear that the Opp. Party was disqualified from contesting the election to the post of Panchayat Samiti Member and as it is submitted that he has been elected as Chairman of the Panchayat Samiti, it is declared and directed that the Opp. Party shall demit the Office of the Chairman of the Panchayat Samiti as well as being disqualified to hold the post of the Member of the Panchayat Samiti, the said post of Member shall fall vacant. Appropriate authority under the Panchayat Samiti Act shall take such further steps as prescribed under law. 7. With the aforesaid observations and directions, the writ application is allowed. Urgent certified copy of this order be granted on proper application. Final Result : Allowed