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2011 DIGILAW 435 (ORI)

Shri Aditya Pani v. State of Orissa

2011-08-17

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT B.N. MAHAPATRA, J. — This writ petition has been filed with a prayer to quash Annexure-6 by which licence for vending foreign liquor in retail for consumption “on” the premises has been issued to vendor Lokanath Pati over Plot No.4139, Khata No.350 at Panimal in Niali P.S. on an annual fee of Rs.1,00,000/-. The further prayer of the petitioner is to cancel the licence renewed for the year 2011-2012 and to permanently close down the said beer parlour “ON” Shop at Panimal. 2.The petitioner in the present case is the convener of Niali Nirman Manch. This is a non-Government organization constituted to look after all round developments of general public under Niali Tahasil in the district of Cuttack. The said Manch looks after the smooth running, functioning and development of roads, market place, irrigation, electricity supply, education etc. in Niali Tahasil. Wherever any irregularity is noticed, the said Manch used to approach the concerned authorities for appropriate redressal of the grievances. 3.Petitioner’s case in a nutshell is that the Collector, Cuttack vide Form No.A, Public Notice No.824 dated 30.6.2009 and Modification Notice No.111 dated 30.01.2010 invited public objections for opening of a Beer Parlour “ON” Shop in the name and style “Maa Tarini Beer Parlour” on Plot No.413 (Modified Plot No.4139), Khata No.350 at village-Panimal, P.S.-Niali in the district of Cuttack for the remaining period of 2009-10. Objections from different quarters of the public were submitted to the Collector, Cuttack raising strong objection to the opening of said Beer Parlour on the ground that the proposed site is situated by the side of the State Highway and within the objectionable distance of the bathing ghat of Prachi River, Lower Primary School and Upper Primary School. Besides, the proposed site is also situated at Panimal Chhak which is a market place having a Bus Stand from where buses and conveyances use to ply to different destinations. Objection was also raised that the proposed beer parlour is scheduled to be opened on a Government plot which is under encroachment of private individuals. Besides, the proposed site is also situated at Panimal Chhak which is a market place having a Bus Stand from where buses and conveyances use to ply to different destinations. Objection was also raised that the proposed beer parlour is scheduled to be opened on a Government plot which is under encroachment of private individuals. In spite of the above strong public objection, the Excise Inspector, Excise Superintendent and Collector, Cuttack illegally and unlawfully rejected the said objection and whimsically recommended for opening of the new beer parlour “ON” shop at Panimal under Niali P.S. However, the State Government as it appears, did not agree to the said recommendation and hence did not sanction for opening of the said beer parlour “ON” shop. As such the proposed “ON” shop at Panimal could not be opened for the remaining period of 2009-2010. Despite such public objection, opposite party-Excise authority has granted licence to open and run a new beer parlour “ON” shop at Panimal chhack to opposite party No.5-Sri Lokanath Pati for the period of 2010-11 without promulgating/circulating the related Form-A, the Public Notice, for the year 2010-11 inviting public objection. After opening of the said beer parlour on 3.10.2010 the petitioner submitted a representation to the Collector, Cuttack vide letter dated 4.10.2010 requesting to close down and cancel the sanction of the said beer parlour “ON” shop at Panimal. On the basis of objection raised by the petitioner vide his representation in Annexure-7 immediately Tahasildar, Niali directed the Revenue Supervisor to enquire in to the said objection. The Revenue Supervisor and the Revenue Inspector in their reports indicated that one Sri Lokanath Pati has opened a Liquor shop in a house illegally constructed on the Government land bearing Plot No.3428, Khata No.928 of Mouza-Tolagopinathpur (Panimal) belonging to the PWD. The Tahasildar, Niali assured the members of the Niali Nirman Manch for a discussion along with the Sub-Collector, Sadar, Cuttack on the issue of closing down the said beer parlour. At the behest of the Tahasildar’s action the beer parlour was also not opened from 7.10.2010 for which the threatened road blockage was not held on 8.10.2010. In spite of the above facts and circumstances, neither any date was fixed for discussion nor the Collector, Cuttack took any action on the issue of closing down the said beer parlour. At the behest of the Tahasildar’s action the beer parlour was also not opened from 7.10.2010 for which the threatened road blockage was not held on 8.10.2010. In spite of the above facts and circumstances, neither any date was fixed for discussion nor the Collector, Cuttack took any action on the issue of closing down the said beer parlour. Hence the said beer parlour “ON” shop about a week’s closure has been re-opened thereafter and functioning till date. Being dissatisfied with the action and inaction of the authorities, the petitioner and other villagers submitted representation to the Chief Minister with copies to the Excise Minister, M.L.A. and District Collector for appropriate action and redressal of the grievance of the general public. 4.Mr. M.S. Panda, learned counsel on behalf of the petitioner submitted that before granting licence to opposite party No.5-Lokanth Pati public notice in Form No.A for the year 2010-11 has not been communicated and circulated in the area inviting public objection. The Excise authorities surreptitiously by joining hands with opposite party No.5 suppressed the said public notice for which public objection to the same could not be submitted. If Form-A public notice would have been widely communicated in the area, the general public could have submitted their objection as they had done in the last year vide Annexure-2 series. They made endeavour and collected copies of the information sheet, recommendation letter and enquiry report of the Inspector of Excise and Superintendent of Excise for opening of the said new beer parlour “ON” shop at Panimal. Those copies have been annexed to the writ petition as Annexure-4 series. The Collector, Cuttack vide his letter dated 2.9.2010 submitted the entire report along with his recommendation to the opposite party No.2 for opening of the said beer parlour at Panimal for the remaining period of 2010-11. Mr. Panda, learned counsel for further vehemently argued that beer parlour “ON” shop at Panimal has been sanctioned and licence has been renewed for the year 2010-12 by opposite party authorities without circulation of public notice inviting objection and in violation of various restrictions imposed under the Act and Rules and thereby putting the general public into innumerable harassments and hardships for which there is apprehension of loss of peace, law and order situation affecting the public tranquillity. 5.Learned Government Advocate submitted that sanction/grant of licence has been made strictly as per the provisions of the law during the year 2010-11. Enquiry has been made about the feasibility for grant of beer parlour “ON” shop licence and objection from the local inhabitants has also been invited prior to recommendation of the case for grant of licence. In response to the public notice, no objection from any quarter was received. Therefore, there has been no illegal, arbitrary or whimsical decision taken by opposite parties in sanctioning and granting the beer parlour “ON” shop licence at Panimal in favour of opposite party No.5. Since no objection was received during the stipulated time and the shop in question having been opened, the representation filed did not merit any consideration. On receipt of the petition and letter from Tahasildar, Niali the licensee of Panimal beer parlour “ON” shop has been directed to submit the report of authenticity of Plot No.4139, Khata No.350 at Panimal where the shop has been opened as it was reported by the Tahasildar, Niali that the shop has been opened over plot No.3428, khata No.928 instead of over plot No.4139, khata No.350 vide his letter No.1424 dated 11.10.2010. Since no information from the licensee was received, again the Tahasildar, Niali was requested by the Superintendent of Excise vide office letter No.181 dated 29.1.2011 about the authenticity regarding location of Panimal beer parlour “ON” shop where it is functioning. It is reported by the Tahasildar that the plot No.4139 is a new Plot created in the consolidation proceedings. Therefore, it was submitted that the beer parlour “ON” shop is functioning over plot No.4139. No such law and order situation has arisen as alleged. The shop is functioning smoothly at Panimal and government is getting revenue amounting to Rs.1,00,000/- per annum besides the duty on MGQ. Therefore, closure of the shop would result in losing of huge Government revenue. Public notice dated 17.01.2011 inviting objection was issued by the State Government to grant exclusive privilege for sale of IMFL in retail in different premises including Madhumati Beer Parlour for the year 2011-12. Since no objection was filed, the Collector, Cuttack on 31.03.2011 renewed the licence in respect of Madhumati Beer Parlour for the year 2011-2012. 6.Petitioner has filed rejoinder affidavit to the counter affidavit filed on behalf of opposite party No.2. Since no objection was filed, the Collector, Cuttack on 31.03.2011 renewed the licence in respect of Madhumati Beer Parlour for the year 2011-2012. 6.Petitioner has filed rejoinder affidavit to the counter affidavit filed on behalf of opposite party No.2. In the rejoinder, it is stated that the beer parlour “ON” shop has been opened on a Government plot which is encroached by private individuals, but not on the plot permitted for opening the beer parlour “ON” shop under the licence. Opposite party No.3- Collector, Cuttack has filed the counter affidavit supporting the grant of licence with a specific stand that the beer parlour “ON” shop is functioning on the plot allotted under the licence, but not on any other plot as has been alleged in the writ petition. Such specific stand of the Collector has been taken on the basis of the letter of the Tahasildar, vide Annexure-C/3 series. The above stand in the counter affidavit is prima facie illegal as the letters vide Annexure-C/3 series are manipulated/manufactured and fabricated documents and those are in contradiction to the earlier reports of the said Tahasildar under Annexures-8 and 9. Objection, such as existence of bathing ghat, Lower Primary School and Upper Primary School, market place and bus stand within the objectionable distance which was objected in 2008-2009 cannot go away and vanish in 2011 and the same existed as such. 7.One of the prayers of the petitioner in the present writ petition is to quash Annexure-6 by which the licence for retail vending of foreign liquor for consumption “ON” the premises for the period 29.09.2010 to 31.03.2011 was granted to opposite party No.5. By efflux of time since the period for which licence was granted to opposite party No.5 under Annexure-6 has expired, the said matter has now become infructuous. Therefore, it would be a futile exercise to examine the issue relating to validity of licence granted for the year 2010.2011. 8.The other prayer of the petitioner is to quash the renewal of licence granted for the period of 2011-12. The grounds taken for seeking the above relief are two fold. Therefore, it would be a futile exercise to examine the issue relating to validity of licence granted for the year 2010.2011. 8.The other prayer of the petitioner is to quash the renewal of licence granted for the period of 2011-12. The grounds taken for seeking the above relief are two fold. The first ground is that no public notice as required under the statute has been published by the Licensing Authority inviting public objection before granting renewal of exclusive privilege to opposite party No.5 for retail sale of foreign liquor for the year 2011-12 and the licence for opening of Beer Parlour has been granted on a site which is situated by the side of the State Highway and within the objectionable distance of the Bathing Ghat of Prachi River, Lower Primary School and Upper Primary School. Besides, the proposed site is also situated at Panimal Chhak which is a market place having a Bus Stand from where Buses and conveyance use to ply to different destinations. The second ground of challenge is that Beer Parlour in question is scheduled to be opened on a government plot which is under encroachment of private individuals. 9. So far as the first ground is concerned, according to the petitioner, public objections were filed under Annexure-2 series pursuant to public notice dated 30.01.2010 issued for the year 2009-2010, which consists of four letters. Out of four letters, three letters have been addressed to the Collector, Cuttack whereas one letter has been addressed to the Tahasildar, Niali, Cuttack objecting to the grant of Madhumati Beer Parlour licence over Plot No.4139, Khata No.350, At: Panimal, P.S. Niali, Dist: Cuttack. Since no public notice inviting objection was published for the year 2011-12, no objection could be filed by public opposing grant of renewal of exclusive privilege to opposite party No.5 for retail sale of foreign liquor at Panimal. 10.According to opposite party-State and private opposite party No.5, public notice dated 17.01.2011 inviting objection was issued by the State Government expressing its intention to grant exclusive privilege for sale of India Made Foreign Liquor in retail in different premises including Madhumati Beer Parlour for the year 2011-12. Pursuant to said notice since no objection was filed by the public, the Collector, Cuttack on 31.03.2011 renewed the licence in respect of Madhumati Beer Parlour for the year 2011-2012. Pursuant to said notice since no objection was filed by the public, the Collector, Cuttack on 31.03.2011 renewed the licence in respect of Madhumati Beer Parlour for the year 2011-2012. According to the petitioner, such a public notice was never circulated and the public were not aware of such public notice. Hence no objection was filed. 11.Now the question arises as to whether the statutory requirement of giving public notice inviting objection against grant/renewal of exclusive privilege has been complied with before exclusive privilege is granted in favour of opposite party No.5 for the year 2011-12. Perusal of notice dated 17.01.2011, reveals that the objection shall be addressed to the Collector, Cuttack and shall reach on or before 31.01.2011 and any objection received after the date fixed will not be taken into consideration. From the said notice it further reveals that copy of the said letter was sent to various persons/authorities for wide publication. It is felt necessary to reproduce the said portion of the notice below : “Copy of the said letter was sent to all Sub-Inspectors and Inspectors of Excise in the district for wide publicity. Concerned Charge Sub-Inspectors should conspicuously affix the public notice in the specified places at which Excise shops are proposed to be opened. The contents of the public notice may also be proclaimed by beat of drum or by such other means as found convenient for wide publicity and in token of services of public notice, signature of the local residents/Mayor, Municipal Corporation/Corporators/Chairman, Municipalities/N.A.Cs./Panchayat Samities/Executive Officer Municipalities/N.A.Cs./Sarpanch of concerned Gram Panchayat/Commanding Officers of such Cantonment/Sub-Collectors/B.D.Os/Tahasildars as the case may be, should be obtained for official record of wide publicity. Signature of existing licensees may also be obtained. Served copies of the notice be sent to this office in triplicate each.” 12.There is nothing on the record produced by the State to show that wide publicity has been made in the manner as directed in the public notice dated 17.01.2011. There is also nothing on record to show that the copy of public notice dated 17.1.2011 was served on various authorities/persons mentioned in the said notice and they in turn published it widely in the manner it is indicated in the said notice dated 17.1.2011. There is also nothing on record to show that the copy of public notice dated 17.1.2011 was served on various authorities/persons mentioned in the said notice and they in turn published it widely in the manner it is indicated in the said notice dated 17.1.2011. In absence of any material on record to show that public notice inviting objection against grant of exclusive privilege for sale of India Made Foreign Liquor in retail for the year 2011-12 at Panimal has been widely published in the manner indicated in the said notice, it cannot be said that the statutory requirement of wide publication of the notice dated 17.01.2011 has been complied with. Another glaring aspect found from the record is that though in the public notice dated 17.01.2011, time was given up to 31.01.2011 for filing objections before the Collector, by letter dated 26.01.2011 the Collector has informed the Excise Commissioner, Orissa that no objection has been received against opening of existing shops within the time stipulated except Nirgundi Beer Parlour. Hence, the Collector proposed to the Excise Commissioner, Orissa, Cuttack for sanction of renewal of licence of opposite party No.5 for the year 2011-12. Thus, though in the public notice dated 17.01.2011 the last date for submission of objection was fixed on 31.01.2011, the Collector vide letter dated 26.01.2011, i.e, before expiry of 31.01.2011 has sent proposal for sanction of Excise Commissioner, Cuttack. This is certainly a case of clear violation of natural justice. 13.Another important aspect which draws our attention is that no adequate time was given in public notice dated 17.01.2011 to public for filling their objections. Vide notification dated 17.3.2006 the Govt. in Excise Department has amended sub-rule (1) of Rule 3 of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. In place of sub-rule (1) of Rule 3, the following sub-rule is substituted. “A public notice shall be issued by the Collector on behalf of the State Government in Form and in the manner specified hereinafter, before granting any exclusive privilege to one person for retail sale of foreign liquor giving 15 days time therein for receiving objections.” As per the amendment, in the public notice 15 days time should be given for receiving objection. In the instant case, the public notice was issued on 17.01.2011. In the instant case, the public notice was issued on 17.01.2011. In the said letter, though the last date for receiving the objections from public was fixed to 31.01.2011 the Collector has sent his proposal for sanction of IMFL ON shop for the year 2011-12 vide his letter dated 26.1.2011. Thus, only 9 days time was given to file objection. However, in the letter the last date to submit objection was fixed to 31.1.2011. Even the last date for filing objection is taken as 31.1.2011, still then the public are not getting clear 15 days time to file their objections because the notice issued on 17.1.2011 has to be served on different persons/authorities as indicated in the said notice who in turn shall publish the public notice in their respective areas. This process definitely takes at least 2 to 3 day’s time. In that event, also the public are not getting 15 days time to file their objections. Thus, no adequate time was given to the public to submit their objections before granting renewal of licence for the year 2011-12 to opposite party No.5. 14.For the reasons stated in the preceding paragraphs, we are unable to accept the stand taken by opposite party-State that before granting renewal of licence in favour of opposite party No.5 at Panimal, public notice dated 17.01.2011 inviting public objections from persons residing in the concerned locality was widely published and since no objection was received, the licence was renewed for the year 2011-12 in favour of opposite party No.5. 15.On the other hand, we noticed that person(s)/social organization(s) residing at Panimal village are persistently opposing for opening of foreign liquor shop at Panimal. The Tahasildar, Niali vide his letter dated 06.10.2010 addressed to the Collector reported that on 06.10.2010 himself along with the Revenue Supervisor and Revenue Inspector of Madhab and Niali conducted an inquiry and prepared a joint enquiry report under Annexure-8. The Tahasildar, Niali also reiterated the facts stated in the said report under Annexure-8. He also apprehended law and order situation on 08.10.2010 anticipating road block by the members of the Niali Nirman Manch demanding closure of the Beer Parlour in question. The Tahasildar, Niali also reiterated the facts stated in the said report under Annexure-8. He also apprehended law and order situation on 08.10.2010 anticipating road block by the members of the Niali Nirman Manch demanding closure of the Beer Parlour in question. The Tahasildar, Niali apprehending the law and order situation on that issue also intimated the Sub-Collector, Sadar, Cuttack with reference to Office Memo No.15672 dated 06.10.2010 (Annexure-10) that Niali Nirmana Manch has protested against the opening of Liquor shop at Panimala Chhacka and Madhab on 06.10.2010 and threatened to blockade the Phulnakhara-Niali-Panimala Chhak on 08.10.2010. On discussion with the representatives of the said Manch on 07.10.2010, they agreed to postpone the Road Blockade Programme to be held on 08.10.2010 with a condition for discussion with the Sub-Collector, Sadar, Cuttack in presence of the Superintendent of Excise, Cuttack on this score. In the said letter the Tahasildar, Niali requested the Sub-Collector, Cuttack to fix up a suitable date for discussion on the said issue. 16.Annexures-2 series, 7, 8 and 11 show that inhabitants of Panimal, women organisation, members of a club and one voluntary organisation are strongly objecting to the opening of beer parlour at Panimal. Annexure-8 is the inquiry report dated 8.10.2010. Annexure-9 & 10 are the letters of Tahasildar addressed to the Collector & Sub-Collector respectively and therefrom it reveals that the public of the concerned locality have strong objection against opening of beer parlour “ON” shop at village Panimal. 17.The second ground of attack of the petitioner is that opposite party No.5 was permitted to run his Beer Parlour in question on the Government plot. The petitioner’s case is that pursuant to the objection raised by him vide representation dated 04.10.2010 under Annexure-7, the Tahasildar, Niali directed the Revenue Supervisor and Revenue Inspector to inquire in to the said objection. The Revenue Supervisor and Revenue Inspector inquired jointly at the spot on 06.10.2010 and submitted their report on the very same day to the Tahasildar, Niali. In the said report it has been reiterated that one Lokanath Pati has opened a Liquor Shop (Beer and Wine) on a house illegally constructed on the Government land bearing Plot No.3428, Khata No.928 of Mouza- Tolagopinathpur (Panimal) belonging to the PWD which has been encroached by Nata Patra and Bata Patra, sons of Natha Patra and Hata Patra, son of Lokanath Patra. It has also been reported that opposite party No.5-Lokanath Pati after obtaining the Licence has opened the said liquor shop since 02.10.2010. It is further reported that the said liquor shop has neither been opened on the plot as mentioned in the licence issued in his favour nor such a plot is available in the said village. 18.It is also noticed that the Tahasildar, Niali vide letter dated 9.2.2011 (Annexure-C/3) intimated the Superintendent of Excise that R.I., Niali has conducted field enquiry on 4.2.2011 regarding the existence of beer parlour “ON” Shop and has reported that the beer parlour “ON” shop is functioning on plot No.3431, Ac.0.07 dec. under Khata No.350 in village Tolagopinathpur (Panimala Chhaka), P.S. Niali, District-Cuttack as per settlement R.O.R. published in the year 1984 corresponding consolidation not final L.R. Plot No.4139. The above cited settlement Plot No.3431 stands recorded in the names of Nata Patra, Bata Patra, S/o-Natha Patra, Sumi Patra, W/o-Natha Patra share 8 annas. Hata Patra, S/o-Lokanath Patra share 8 annas of village Tolagopinathpur, P.S. Niali, Dist. Cuttack. One of the recorded tenants Bata Patra, S/o-Natha Patra has sold Ac.0.01 dec. 7 kadi land out of the plot No.3431 (L.R. Plot No.4139) to his son Bijaya Patra vide R.S.D. No.49 dt.08.01.07. Thus, now the beer parlour is functioning on a rented asbestos roofed house having one room situated over Settlement Plot No.3431 Ac.0.07 dec. (part) Ac.0.01 dec. 7 kadi corresponding consolidation not final L.R. Plot No.4139 in village Tolagopinathpur (Panimala Chhaka). Thus, it is found that a responsible Revenue Officer like the Tahasildar, Niali is submitting contradictory report with regard to the plot number in which opposite party No.5 runs his beer parlour “ON” shop in question. 19.In the facts situation, we are of the view that renewal of licence for the year 2011-12 in favour of opposite party No.5 for vending foreign liquor in retail at Panimal is not sustainable in law. Opposite party No.3-Collector, Cuttack is directed to publish public notice afresh inviting public objections giving 15 days time and ensure that the said notice is published widely as required under law. It is open for the person(s), voluntary organisation(s) etc. residing/functioning within the said locality to file objections before the Collector, Cuttack. Opposite party No.3-Collector, Cuttack is directed to publish public notice afresh inviting public objections giving 15 days time and ensure that the said notice is published widely as required under law. It is open for the person(s), voluntary organisation(s) etc. residing/functioning within the said locality to file objections before the Collector, Cuttack. If any objection is filed within the time stipulated in public notice, opposite party No.3-Collector, Cuttack, shall consider those objection (s) and may conduct proper inquiry, if necessary after giving opportunity of hearing to the objector (s). The entire exercise shall be completed within a period of eight weeks from today. Keeping in view the Government revenue involved in the present case, opposite party No.5 is allowed to run his Madhumati Beer Parlour on the basis of the existing licence till the objection(s) are disposed of or expiry of eight weeks from today whichever is earlier. 20.With the aforesaid observations and directions, the writ petition is disposed of. V. GOPALA GOWDA, C.J.I agree. Petition disposed of.