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2010 DIGILAW 692 (ORI)

ASHOK KUMAR MAJHI v. STATE OF ORISSA

2010-10-05

I.MAHANTY, V.GOPALA GOWDA

body2010
JUDGMENT : Indrajit Mahanty, J. - In the present Writ Petition the Petitioners herein claiming themselves to be the social workers & villagers of village Boden in the District of Nuapada in the State of Orissa have prayed for quashing of Notice No. 248 dated 10.7.2010 issued by the Collector & District Magistrate, Nuapada for settlement of India Made Foreign Liquor Off shop (in short "IMFL Off shop") through lottery for the year 2010-11 at village Boden. 2. Mr. U.K. Samal, Learned Counsel for the Petitioners submitted that a public notice was issued by the Superintendent of Excise of Nuapada on 11.11.2009 inviting objections from public regarding the proposal of the State Government to grant exclusive privilege for opening of new IMFL Off shop for retail sale at village Boden & by the said notice objections were required to be filed on or before 26.11.2009. The period indicated in the notice for grant of exclusive privilege was from 1.04.2010 to 31.03.2011. Pursuant to the aforesaid notice the Chairman of Boden Panchayat Samiti, one Mr. Krushna Singh Majhi has submitted an objection dated 21.11.2009 under Annexure-4 stating therein, that the village Boden is a backward tribal area where the local inhabitants are fully depending upon agriculture & substantial number of them are living below the poverty line. Accordingly objection was made to the opening of IMFL Off shop, since it was likely to cause harm to the village people instead of their upliftment. It is further submitted that by a further letter dated 23.12.2009, the Chairman of Boden Panchayat Samiti submitted another objection reiterating his earlier objection & also stating that the Boden Panchayat Samiti & Boden Gram Panchayat had passed a resolution, to the effect that no foreign liquor shop should be opened at village Boden for the benefit of the people. 3. Mr. Samal further submitted that the public notice inviting objection dated 11.11.2009 under Annexure-3 did not satisfy the requirement of Section 22 of the Bihar & Orissa Excise Act, 1915 since the notice failed to specify the "locality" & the "local area" within which the excise privilege was intended to be granted was to be exercised. 4. 3. Mr. Samal further submitted that the public notice inviting objection dated 11.11.2009 under Annexure-3 did not satisfy the requirement of Section 22 of the Bihar & Orissa Excise Act, 1915 since the notice failed to specify the "locality" & the "local area" within which the excise privilege was intended to be granted was to be exercised. 4. A further plea was taken by the Learned Counsel for the Petitioners that, on an earlier occasion the Collector, Nuapada had issued public notice for opening of a new IMFL Off shop at village Boden for the period from 1.04.2008 to 31.03.2009 vide public notice dated 5.11.2007 under Annexure-1 & since the objections were raised by the Panchayat, the State Government had decided not to open the said IMFL Off shop during the said year. It is submitted that the very reasons which existed for not opening an IMFL Off shop at village Boden in the district of Nuapada for the year 2008-2009, still continue to exist as on date & therefore, the rejection of the objection raised by the Chairman of the Panchayat Sammity, Boden under Annexures-4 & 5 & the decision to go ahead for grant of exclusive privilege by opening an IMFL Off shop at village Boden for the year 2010-11, vide notice dated 10.07.2010 under Annexure-6 is liable to be quashed. 5. Mr. Samal further contended that assuming for the sake argument that an IMFL Off shop was required to be opened at village Boden, even then, the decision of the State Government to settle the said IMFL Off shop through "lottery" was not in consonance Section 29(2)(a) of the Bihar & Orissa Excise Act, 1915, since, it was stipulated therein that the State Government may grant exclusive privilege either by "auction" or by calling "tender" or otherwise as the State Government may, in the interest of excise revenue by general or special order direct. He further submits that there was no necessity for deciding to open an IMFL shop at Boden through "lottery", as holding of a lottery was not specifically permissible in terms of the aforesaid statutory stipulation under the Bihar & Orissa Excise Act, 1915. 6. Mr. He further submits that there was no necessity for deciding to open an IMFL shop at Boden through "lottery", as holding of a lottery was not specifically permissible in terms of the aforesaid statutory stipulation under the Bihar & Orissa Excise Act, 1915. 6. Mr. D. Panda, Learned Additional Government Advocate appearing for the State responded to the aforesaid contentions by stating at the outset that, the State had complied with all the procedural requirements prescribed under Bihar & Orissa Excise Act for the purpose of opening of an IMFL Off shop at village Boden. Both, the Learned Counsel appearing for the State as well as Mr. Sanjit Mohanty Learned Senior Advocate appearing for the intervenor submitted that the Petitioners have no locus standi to file the present Writ Petition as "public interest litigation", since the Petitioners have never filed any objection to the opening of an IMFL Off shop at village Boden. Apart from the above, the Learned Counsel for the intervenor submitted that, the objection annexed as Annexure-4 dated 21.11.2009 filed by Sri Krushna Chandra Majhi, Chairman of Boden Panchayat Samiti was duly considered & an enquiry was carried out by the Officers of Excise Department at the Collectorate & found no merit in the said objection. Apart from this Mr. Mohanty, Learned Counsel for the intervenor submitted that the self-same objector i.e., Chairman of the Boden Panchayat Samiti had subsequently by letter dated 23.12.2009 addressed to the Collector & District Magistrate, Nuapada admitting the requirement of an IMFL Off shop arid suggesting that such IMFL Off shop retail licence may be granted. 8. Mr. Panda, Learned Addl. Government Advocate, placed reliance on the averments made by Opp. Parties 3 & 4 in the counter affidavit filed on their behalf by the Superintendent of Excise, Nuapada & in particular the factual contention raised in paragraphs-6 & 8. Relying on the same Learned Additional Government Advocate submitted that, it is a fact that the IMFL Off shop at Boden was not sanctioned for the year 2008-09 apart from three other proposed new IMFL shops at Hatibandha, Dharambandha & Udiyanbandh of the self-same district for preservation of public peace. However, as per the policy decision of the Government for the year 2009-10, two numbers of new IMFL Off shops namely, Lakhna & Boden were proposed in the district. However, as per the policy decision of the Government for the year 2009-10, two numbers of new IMFL Off shops namely, Lakhna & Boden were proposed in the district. It is further averred that the objection filed by the Chairman of the Panchayat Samiti, Boden under Annexure-4 did not contain any resolution of the Gram Panchayat & the objections raised was duly enquired into by the Inspector of Excise of Nuapada & the said objection letter was duly sent to the State Government along with the views of the Collector after due enquiry along with the proposal vide letter No. 88 dated 15.3.2010. In so far as further alleged objection dated 23.12.2009 under Annexure-5 of the Chairman of Boden Panchayat Samiti is concerned, Learned Additional Government Advocate submitted that, the said objection having been admittedly sent after 26.11.2009, i.e. last date for receipt of objection was not considered since it was received after the last date fixed for receipt of objection. 9. Mr. Panda further submitted that the intention of the State Government behind granting permission for opening of an IMFL Off shop at village Boden was not merely to raise excise revenue of the State but was also aimed at stopping and/or preventing illicit distillation/ boot legging in the local area & therefore, in the public interest it was required to open the IMFL Off shop for encouraging legitimate business & to assure unadulterated product to the consumers. He, therefore, submitted that the decision of the State Government to open an IMFL Off shop at Boden was not only limited to protect the interest of revenue of the State but also to protect the interest of public health & safety & therefore, objection raised under Annexure-4 was not justified. 10. Mr. Sanjit Mohanty; Learned Sr. Advocate appearing for the intervenor- Ghanashyama Meher submitted that, the public notice inviting public objection under Annexure-3 had duly complied with the requirement of the Section 22 of the Bihar & Orissa Excise Act r/w Rules 3 & 4 of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. 10. Mr. Sanjit Mohanty; Learned Sr. Advocate appearing for the intervenor- Ghanashyama Meher submitted that, the public notice inviting public objection under Annexure-3 had duly complied with the requirement of the Section 22 of the Bihar & Orissa Excise Act r/w Rules 3 & 4 of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. Learned Counsel further submitted that by way of an amendment in the year 2005 i.e. on 29.3.2005 the State Government amended the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 & incorporated a new rule therein numbered as Rule 3A in which it was stipulated: "Notwithstanding anything contained in rule-3, the Collector of the district shall fix the local area of the shop coterminous with the location of the shop." 10.1 Mr. Mohanty, Learned Sr. Advocate further submitted that the contention of the Petitioners that grant of exclusive privilege through "lottery" was contrary to the requirements of Section 29(2)(a) of the Bihar & Orissa Excise Act, 1915 is wholly misconceived. It is submitted that the settlement for grant of rights of exclusive privilege by the State Government was permissible not only through "auction" or by calling upon "tenders" or otherwise as the State Government may, in the interest of excise revenue, by general or special order, direct. Learned Counsel further submitted that pursuant to such authority being vested in the Government, the State of Orissa issued an "Order by the Revenue & Excise Department on 23.4.1990" which was published in the extraordinary gazette issue No. 538 of the Orissa Gazette, dated the 23.4.1990, which has since been amended from time to time. The Learned Senior Counsel placed reliance on an amendment brought about to the said order of the State Government of Orissa vide amendment dated 28.4.2005 whereby, in specific terms & permission, was granted for settlement of IMFL Off shops "through a lottery procedure". In terms of such procedure the State Government was duly empowered to grant such exclusive privilege through lottery system in certain cases. In terms of such procedure the State Government was duly empowered to grant such exclusive privilege through lottery system in certain cases. Notice of the Court was also drawn to Form-A to the aforesaid amendment of the Government order which contains the description inviting application for settlement of IMFL Off shop through "lottery" & particularly Clause-3(vii) of the said Form-A, in which it has been noted: The State Government will not be responsible for providing the place for location of shops & it would be responsibility of the privilege holder to arrange suitable place & carry on the privilege granted to him. The place so arranged shall be free from objection from the public. 11. Mr. Mohanty further drew the attention of the Court to Form-B of the aforesaid amendment of the Government order & stated that, the intervenor & forty-one other individuals had applied for grant of licence for opening of IMFL Off shop at village Boden through "lottery" system & accordingly, the intervenor was found to be successful in such lottery & became entitled for grant of such exclusive privilege. Mr. Mohanty further submitted that, no objection against grant of exclusive privilege by "lottery" ought to be entertained, since the same is in consonance with the Government Order issued for such purposes & as amended from time to time as quoted hereinabove. He further submitted that in the present case no challenge has been made by the Petitioners to the Order of the State Government dated 23.04.1990 or to the subsequent amendments including the amendment dated 28.04.2005. Accordingly, he submitted that since no challenge has been made to the above, Petitioners' objection against grant of exclusive privilege through "lottery" is wholly baseless & deserves to be rejected out right. It is further submitted that even though, the intervenor was found successful in the lottery held for the purpose of identification of an exclusive privilege holder for an IMFL Off shop at village Boden in the district of Nuapada since 23.07.2010 due to an interim order passed by this Court in the present proceeding, the intervenor has not been able to operate the same & prays for dismissal of the Writ Petition & vacation of the interim orders in order to operate exclusive privilege. 12. Mr. Samal, Learned Counsel for the Petitioners placed reliance on the judgment of this Court in the case of Sarat Kumar Sahu and Anr. 12. Mr. Samal, Learned Counsel for the Petitioners placed reliance on the judgment of this Court in the case of Sarat Kumar Sahu and Anr. v. Collector, Cuttack and Anr. 73 (1992) CLT 834 (para- 6) in order to support his contention that the "locality" as well as "local area", needs to be declared in the public notice. We are of the considered view that the aforesaid judgment would have no application to the present case, since an amendment was made on 29.03.2005 to the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989, introducing Rule 3A thereof. In view of such amendment to the aforesaid rules, which came into force subsequent to the aforesaid decision referred hereinabove & on perusing Annexure-3, we are of the considered view that the said public notice satisfies the requirements of 1989 Rules referred to herein above. Hence, the judgment relied upon by the Petitioners is of no assistance. The Petitioners also placed reliance on a judgment of the Hon'ble Supreme Court in the case of S.N. Mukherjee Vs. Union of India in particular, paragraphs 38 & 39 thereof, in order to substantiate his stand that the "reasons" need to be recorded while rejecting an objection made to opening of an IMFL Off shop. 13. In this regard, reliance was placed by the Learned Senior Counsel for the intervenor on the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, & submitted that the "reasons for rejecting" objection raised by the Chairman of Boden Panchayat Samiti are available in the records of the proceedings of the Collector/State Government basing upon the enquiry made by the Collector through the Excise Inspector & therefore, reasons being in existence in the records of the State can also be referred to & therefore this contention of the Petitioners is rejected. 14. In this connection it would be appropriate to quote the relevant portions from the inquiry report submitted by the Inspector of Excise, Nuapada. They are extracted below: The villagers of Boden G.P. have filed objection petition praying for not opening I.M.F.L. shop at Boden. On my inquiry thoroughly & I have ascertained that the Boden is a block headquarters having floating population as about 4 to 5 thousand per day. They are extracted below: The villagers of Boden G.P. have filed objection petition praying for not opening I.M.F.L. shop at Boden. On my inquiry thoroughly & I have ascertained that the Boden is a block headquarters having floating population as about 4 to 5 thousand per day. There is also no any kind of I.M.F.C. shops at Boden Block are & also no such I.M.F.L. shop near about 30 Kms distance from Boden. There is also feasibility for the opening of a I.M.F.L. shop at Boden for the interest of Government revenue & to avoid future complicacy. The Chairman, Panchayat Samiti, Boden has filed his objection in his letter No. 282 dated 27.11.09 not to open I.M.F.L. shop at Boden. On inquiry of the petition, I have physically found that the objection filed by him is quite baseless. Also in the past, I have personally along with my Superintendent, both of us went to his native place on 09.08.09 & contacted with him in this respect. He has submitted written statement before us stating that he has got no objection in case of opening of new I.M.F.L. shop there. 15. Apart from the above, Learned Additional Government Advocate also referred to para-8 of the counter affidavit which provide the reasons for which the State Government rejected the objection raised by the objectors. Accordingly, after perusing the records of the case provided to us by the Learned Counsel for the State, we find that adequate & cogent reasons exist in the record to justify the decision of the State Government to open an IMFL Off shop at village Boden in the district of Nuapada & find no merit in the contention raised by the Petitioners. 16. Therefore, we find no merit in the present Writ Petition & accordingly, direct dismissal of the same & vacate all the interim orders. In view of the judgment passed today in this Writ Petition, all the misc. cases stand disposed of. V. Gopala Gowda, C.J. 17. I agree.