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2014 DIGILAW 229 (ORI)

Sasmita Tripathy v. State of Odisha

2014-04-04

A.K.GOEL, A.K.RATH

body2014
JUDGMENT AND ORDER A.K. GOEL, C.J. : This order will cover a batch of writ petitions questioning the policy decision of the State dated 18.01.2014 to the effect that no shifting of shops, which were opened on the government land, will be allowed nor licence fee will be refunded nor unsold stock will be allowed to be lifted. The operative part of the order is as follows : “(i) The license of the excise shops which are located on Government land should be cancelled forthwith without the option of relocation & without giving any compensation at the loss and risk of the E.P. holder.” 2.On 21.08.2013, the Excise Commissioner, Odisha, Cuttack wrote a letter (Annexure-B to the counter affidavit) pointing out that it is not desirable to allow any liquor shop on the government land and immediate steps be taken to close down the said shops. On 18.09.2013, a Division Bench of this Court, in the course of hearing of W.P.(C) No.19675 of 2013 (Bhagyadhar Prusty v. State and others), noticed that contrary to the above letter dated 21.08.2013, liquor shops were being run next to National Highway and on government land. The Division Bench directed the Excise Commissioner to ensure compliance of its earlier direction (Annexure-A to the counter affidavit). Accordingly, action was initiated by the Excise Commissioner to close down the shops on the government land and along the National Highway, which action was challenged in W.P.(C) No.24057 of 2013 (Harihar Mallick v. State and others) and a batch of petitions, which were disposed of on 02.01.2014. Contentions on behalf of the petitioners were that no prior notice was issued to the petitioners nor opportunity of hearing was given before passing the impugned order nor any provision was made permitting lifting of unsold stock or shifting of the existing shops to other places. In absence of any clear policy decision of the State, the Commissioner could not have issued the impugned order. It was also contended that the policy for closing down the liquor shops on government land and along the National Highway was implemented selectively and not uniformly. 3.This Court considered the above submissions and noted the proceedings of the meeting dated 23.07.2012 presided over by the Minister, Finance, Govt. It was also contended that the policy for closing down the liquor shops on government land and along the National Highway was implemented selectively and not uniformly. 3.This Court considered the above submissions and noted the proceedings of the meeting dated 23.07.2012 presided over by the Minister, Finance, Govt. of Odisha to the effect that liquor shops will not be allowed to be opened along the National Highway, which were based on the letter dated 01.12.2011 of the Secretary (Transport) Ministry of Road Transport and Highways (Road Safety Cell), Government of India mentioning that menace of drunken driving required removal of liquor shops along the National Highways. This Court held that there was need for the State to deal with the issues raised and to take a clear policy decision in the matter. It was observed : “11. Before going into above questions, it may be worthwhile to refer to the legal position in the matter of dealing with the intoxicating drinks and drugs. Right to trade in intoxicating drinks is not a fundamental right. Trade or business in liquor can be completely prohibited. Article 47 of the Constitution require the State to endeavour to bring about prohibition of consumption of intoxicating drinks and all drugs which are injurious to health except for medicinal purpose. The State is duty bound to protect the human health and to move towards prohibition. However, unless prohibition policy is introduced, giving of liquor licence is permissible as per policy of the State and subject to such terms and conditions as may be laid down. If the State does not adopt prohibition policy, the Excise policy has to conform to the spirit of Article 47 read with Article 21 of the Constitution. It cannot be disputed that the Excise Commissioner has to work within the framework of statute and the Excise Policy and not on whims. 12.In the present case, no clear policy to prohibit shops on the National Highways or even 500 meters thereof has been shown though there is some indication of desirability of not permitting liquor shops on Highways in the interest of public policy. The fact remains that licences have been granted on National Highways and licence fee collected. 12.In the present case, no clear policy to prohibit shops on the National Highways or even 500 meters thereof has been shown though there is some indication of desirability of not permitting liquor shops on Highways in the interest of public policy. The fact remains that licences have been granted on National Highways and licence fee collected. In the absence of express permission, liquor shops cannot be opened on the Government land but the State has expressly permitted liquor shops on highways and the same are sought to be closed without any clear policy, during the currency of such licences. Absence of clear policy, after due consideration of the consequences of permitting liquor shops on National Highways or in the immediate vicinity thereof, may call for direction to the State to take appropriate policy decisions within a reasonable time. Needless to say that such policy has to be implemented uniformally on defined para meters. If liquor shops have been allowed to be opened on National Highways and such decision is required to be reviewed, the same must be done in accordance with law. In such case, decision ought to be taken whether licence fee already collected is to be refunded to the extent of curtailing the period of licence or option to shift the shops to any other location, subject to the procedure being followed and subject to such location being allowed in accordance with the norms, ought to be given. In the present case, clear decision has not been taken to review the policy by a proper procedure and to implement the same in a fair and uniform manner. This may call for interference by this Court. Fairness in decision making is hallmark of a democratic government committed to rule of law. This is the mandate of Article 14 of the Constitution even in dealing with liquor trade by duly licenced traders. Even so, this Court cannot close its eyes to the consideration of public safety and mechanically direct quashing of the order which may be deficient for want of fair procedure. Closing of liquor shops on the Government land and on the National Highways cannot be interfered with resulting in unauthorized encroachment of public land or ignoring the perceived endangering of security on highways by sale of liquor. On these issues, the policy makers have to take a call. 13. Closing of liquor shops on the Government land and on the National Highways cannot be interfered with resulting in unauthorized encroachment of public land or ignoring the perceived endangering of security on highways by sale of liquor. On these issues, the policy makers have to take a call. 13. In absence of formal and clear Government policy, the Excise Commissioner cannot order closure of shops but at the same time, Court may not interfere without Government taking a policy decision on the issue. Moreover, consequential policy matter of claims for refund of fee or time bound permission to dispose of stock or shift location has also to be dealt with by the State.” (Emphasis added) This Court referred to judgment of the Hon’ble Supreme Court in the case of State of Kerala and others v. Kandath Distilleries (2013) 6 SCC 573 , to the effect that the State can impose limitation on trade and business in liquor, which may be different from those imposed on other trade or business and the Courts are not expected to express opinion on wisdom of policies of State. The State has the power to frame and reframe, change and rechange, adjust and readjust policies and the Court cannot impede the exercise of discretion of an authority acting under the statute by issuance of a writ of mandamus. Liquor licence is not like granting licence to drive a cab or parking a vehicle or issuing a municipal licence to set up a grocery or a fruit shop. Of course, the State could not act arbitrarily or discriminatingly. 4.Accordingly, the impugned circular dated 18.1.2014 was issued to the effect that there will be no option for relocation of excise shops upon the government land, but three month’s time will be allowed for relocation of liquor shop on the highways, which may thereafter be shifted to a distance of 50 meters away from the highway. 5.Challenging the above policy decision, the present batch of writ petitions has been filed. 5.Challenging the above policy decision, the present batch of writ petitions has been filed. 6.On 26.2.2014, after partly hearing the matter, this Court observed that the following points had arisen for consideration : “I.Justification for the decision dated 18.1.2014 for not permitting the shifting, after the existing shops are closed; II.Rationality in not refunding the licence fee for the unexpired period of licence, on closure of the shops when shifting is not to be allowed even to unobjectional site; III.Validity of not permitting selling of unsold stocks when the shops are closed and are not permitted to be shifted; IV.Validity of not having any forum where the dispute of land being Government land can be resolved; V.Validity of not permitting private land on the ground of opposition by unelected individuals; VI.Validity of unilateral decision on an assumption that there was misrepresentation or fraud, without any opportunity of being heard given to the affected parties against whom such assumption is made.” The State was directed to file affidavit on the above specific points. 7.Accordingly, additional affidavit dated 11.3.2014 was filed pointing out that opening of liquor shops on the government land without permission being an act of illegal encroachment, the State has taken a decision not to exercise its discretion of permitting shifting of such shops to any other place and to close them without permitting them to lift the unsold stock or to refund the licence fee for the unexpired period of licence. However, if there was any dispute whether location of shop was on the government land or not, the same could be resolved by the concerned Collector in accordance with law. If the location of shop was admittedly on the government land, there was no question of principles of the natural justice. 8.On 12.3.2014, the following order was passed : “In the light of the order of this Court dated 26.2.2014, an additional affidavit dated 11.3.2014 has been filed stating that the notice for settlement of IMFL OFF shops and CS shops from year to year, vide Clause 3(vii), clearly provides that the privilege holder has to arrange suitable place and on his indicating the said place, a licence is granted. When it came to notice that some of the licencees have located shops on government land, without permission, an order dated 21.8.2013 for closure of the said shops was issued. When it came to notice that some of the licencees have located shops on government land, without permission, an order dated 21.8.2013 for closure of the said shops was issued. This Court, in W.P.(C) No.19675 of 2013, vide order dated 18.9.2013, directed the Excise Commissioner to ensure strict compliance of its order dated 21.8.2013 and also directed action against the officials responsible for permitting such locations. Accordingly, action has been taken against the erring officials. Vide order dated 2.1.2014 in W.P.(C) No.25913 of 2013, this Court while noticing the submission that the procedure followed in compliance of above order may be deficient, directed making of a clear policy on the issue. Accordingly, the Government vide order dated 18.1.2014 has taken a policy decision that location of shops on government land be cancelled without option of relocation and without any compensation. As per Rule 6-A(5) of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989, minimum quantity of foreign liquor has to be lifted for the entire year and, if the licence is cancelled or expired, the balance stock is disposed of as per law after confiscation and the licencee cannot be allowed to sell the same. The Collectors are entitled to review the decisions on the issue whether a particular land is government land or private land, after considering the objection that land was not government land. Objection to the location of shops from any other quarter under Section 22(1)(A) of the Bihar and Orissa Excise Act read with Rule (3) of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 may be raised. There is no vested right to trade in liquor beyond the policy. Mr. Karunakar Jena, learned counsel for the petitioner has not disputed that the location of the liquor shop is on the government land, without any legal authority. He, however, submits that even in such a case it was necessary to give opportunity of being heard and notice issued by the Collector instead of by the Government is without authority of law which is also hit by the principle of promissory estoppel. It was further submitted that in similar circumstances shifting was allowed to unobjectionable sites and, thus, there was discrimination. It was further submitted that in similar circumstances shifting was allowed to unobjectionable sites and, thus, there was discrimination. Refusal to refund licence fee/consideration money for the unexpired period of lease resulted in unjust enrichment in favour of the State and decision not to permit the sale of unsold stock was confiscatory in nature, which amounted to fraud on power. No order for cancellation had been passed under Section 42 of the Orissa and Bihar Excise Act, 1915. It is further submitted that averments in the counter affidavit, which are beyond the order of the Government dated 18.1.2014, will amount to supplementing the said order which is not permissible. Mr. P.K. Rath, learned counsel for the petitioner in W.P.(C) No.1956 of 2014 submitted that no justification has been shown for demand of unpaid money and unlifted MGQ (Minimum Guarantee Quota) duty for the period after the shop was closed. He invited reference to letter dated 10.1.2014, Annexure-1 to W.P.(C) No.1956 of 2014. Mr. Manoj Kumar Mishra, learned Senior Advocate appearing for the petitioner in W.P.(C) No.2349 of 2014, submitted that once licence was given in respect of a specified location, the same could not be cancelled even on the ground that the said location was government land. Mr. Ashok Mohanty, learned Advocate General submitted that the Writ Court being equity Court ought not to entertain the challenge at the instance of persons who unauthorizedly used the government land for their benefit. In view of the admitted encroachment of government land by the petitioners with or without connivance with any government officials, there could be no question of promissory estoppel or legitimate expectation to continue on such land. There could also be no question of compliance of principles of natural justice in such situation. Once there was illegal use of public property for private commercial purpose by liquor traders, they had no right to be heard by this Court and to claim quashing of demand for unpaid consideration money and MGQ duty after the shops were closed. In any case, such a claim should be considered after the petitioner compensates the State for the unauthorized use of government land. This determination of liability may be left open to be decided from case to case by the Collectors of the districts concerned. In any case, such a claim should be considered after the petitioner compensates the State for the unauthorized use of government land. This determination of liability may be left open to be decided from case to case by the Collectors of the districts concerned. The question thus emerges is whether in absence of the petitioner compensating the State for unauthorized use of government land, they are entitled to be heard by the Writ Court and, if so, to what extent any relief can be granted to them. Since the Court’s time is over today, list for further consideration on 25th March, 2014 at 2.00 P.M., as prayed. Other connected matters be also put up on that day.” 9.Accordingly, we have heard Sarbasri K.K. Jena, Sr. Advocate, Manoj Mishra, Sr. Advocate, S.K. Rath, Advocate, S. Swain, Advocate, A.K. Patra, Advocate, P.K. Rath for the petitioners and Ashok Mohanty, learned Advocate General and R.K. Mohapatra, Government Advocate for opp.parties-State. 10.It is submitted on behalf of the petitioners that existence of liquor shops on the government land has been permitted for a long period and the said location is known to the State. Further, many such shops were allowed to be shifted to unobjectionable sites. Even if the shops were to be closed and not allowed to be shifted and unsold stocks was not allowed to be lifted, there was no justification for demand of unlifted MGQ duty after closure of the shops as has been done in W.P.(C) No.1956 of 2014 noticed in order dated 12.03.2014 quoted above. 11.On the other hand, stand of the State is that there was no legal right for any liquor licencee to encroach or occupy the government land without any consideration and without any permission. The Government was bound to safeguard the government land and evict the unauthorized occupant. Taking into account the conduct of the liquor traders’ illegal encroachment on government property, such encroachers have no right to be heard by the Court. Even no relief should be given against the MGQ duty for the unexpired period of licence after the shops were closed as liability for MGQ for entire period accrued in the beginning itself under Rule-6-A(5) of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. Even no relief should be given against the MGQ duty for the unexpired period of licence after the shops were closed as liability for MGQ for entire period accrued in the beginning itself under Rule-6-A(5) of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. Moreover, till such claimant restores the benefit of unauthorized use of government land, illegally taken, by compensating the State by way of damages, such claim may be left to be gone into by respective Collectors. 12.Having considered the rival submissions, the claim of the petitioners seeking interference of this Court against the policy decision dated 18.1.2014 not permitting shops on the government land or not granting permission to shift the shops to another site or to lift the unsold stock and remit the unpaid duty cannot be accepted. The petitioners have not disputed that they are the encroachers on the government land without any lawful right. In such circumstances, since the State has taken a policy decision not to exercise its discretion in permitting shifting of the liquor shops to any other sites, there is no basis for this Court to interfere with such decision. There is no statutory right to shift the liquor shop to any other site, as the licence is for a specific site. There is clearly lack of vigilance on the part of authorities in failing to take action against encroachers on government land for liquor trade and also in freely permitting shifting till policy dated 18.1.2014 has been issued. We are also surprised to find that the State has permitted liquor shops on highways in spite of its earlier circular and orders of this Court for which no logic is discernible, but this aspect being not before this Court, we refrain from expressing any further thereon. After 18.1.2014, no instance of permitting liquor shop on government land or after permitting shifting therefrom has been brought to our notice. 13.Learned counsel for the petitioners failed to show any justification for interference by this Court in favour of encroachers of government land. Once the petitioners, admittedly, encroached government land without any authority and without any legal consideration, there could be no question of promissory estoppel or legitimate expectation. There could no estoppel against law nor ‘legitimate’ expectation contrary to law. An encroacher could be removed from public property and must restore benefit of unjust enrichment taken from public property. Once the petitioners, admittedly, encroached government land without any authority and without any legal consideration, there could be no question of promissory estoppel or legitimate expectation. There could no estoppel against law nor ‘legitimate’ expectation contrary to law. An encroacher could be removed from public property and must restore benefit of unjust enrichment taken from public property. The Rules provide for forfeiting left over stock and also recovery of entire duty. However, we do not express any opinion on justifiability of demand of MGQ duty for the period after the shop is closed, which issue is left open to be decided by the Department after assessment of damages for wrongful encroachment of public property by the petitioners. Writ remedy is not the appropriate remedy for a self confessed encroahcers of public property. 14.We, thus, dismiss the writ petitions finding no ground to interfere with the policy decision dated 18.1.2014. The Department may evolve mechanism to recover damages for wrongful encroachment of government land. If the petitioners are aggrieved by demands raised after closure of shops though discretionary forum of Writ Court will not be available to them, they will be free to take any other remedy in accordance with law, after surrendering the benefit of wrongful encroachment of public property. Petition dismissed.