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2015 DIGILAW 393 (ORI)

Nirupama Barik v. State of Odisha

2015-07-07

BISWANATH RATH, I.MAHANTY

body2015
JUDGMENT : Biswanath Rath, J. 1. This writ petition has been filed seeking quashing of Annexure-4 and thereby directing the opposite parties to allow the petitioner to operate the Posala IMFL OFF Shop at its existing location for the year 2014-15 for the extended licence period i.e. 01.08.2014 to 31.03.2015. 2. The short recital involved in the case is that the petitioner is an existing holder of exclusive privilege for IMFL OFF Shop located at Hata Delanga being duly granted by the competent authority for the purpose of retail vending. The IMFL OFF Shop was settled in favour of the petitioner through lottery process in the year 2005 and the petitioner is continuing with the said shop for last over a decade being renewed from time to time. The last licence was renewed/extended in favour of the petitioner for 8 (eight) months i.e. from 1.08.2014 to 31.03.2015. It is the submission of the petitioner that when the petitioner was expecting renewal of the licence, the petitioner was directed to find out an alternate unobjectionable site and submit proposal for shifting of the Hata Delanga IMFL OFF Shop consequence upon which the petitioner submitted her proposal for shifting of the shop at Hata Delanga to an unobjectionable site.By letter dated 11.9.2014 the petitioner was communicated that her proposal for shifting of IMFL OFF Shop from Hata Delanga has been accepted and she has been permitted to shift the IMFL OFF Shop from the existing site to a new site. The petitioner further claimed that while the matter stood thus, pursuant to direction contained in Annexure-2, the Collector, Puri by its order dated 30.9.2014 has been pleased to allow the petitioner for shifting of Hata Delanga IMFL OFF Shop from its existing site to an unobjectionable site over Plot No.501, Khata No.255, Mouza-Posala, G.P.-Jenapur for the remaining period of the year 2014-15 till next settlement through ‘e-auction’ and the stock of the E.P. holder lying in the existing site be transferred to the proposed site. The petitioner further submitted that while the position stood thus, the Collector & District Magistrate, Puri issued another order on 27.10.2014 in purported exercise of power under Section 26(1) of the Bihar & Orissa Excise Act, 1915 thereby directing the petitioner to temporarily close the IMFL OFF Shop at Posala for preservation of public peace. The petitioner further submitted that while the position stood thus, the Collector & District Magistrate, Puri issued another order on 27.10.2014 in purported exercise of power under Section 26(1) of the Bihar & Orissa Excise Act, 1915 thereby directing the petitioner to temporarily close the IMFL OFF Shop at Posala for preservation of public peace. The further case of the petitioner is that before issuing the licence for the year 2014-15 objections were invited from different sources and the Jenapur Grama Panchayat at the relevant time by communication dated 25.7.2014 submitted its no objection on the shifting of the IMFL OFF Shop. The petitioner contended that the shifting of IMFL OFF Shop to Posala was strictly in terms of the provisions contained under the Act and after obtaining no objection from the concerned area prior to issuance of temporary closure order dated 27.10.2014. Petitioner contends that since the impugned action was affecting petitioner’s right under licence, she ought to have been given a chance to object its closure and it is under this circumstance, the petitioner claims that the direction under Annexure-4 is not only suffering for non-compliance of natural justice but also contrary to the provisions of the Bihar & Orissa Excise Act, 1915 besides being contrary to the demand in place and consequently sought for quashment of Annexure-4 and further directing the petitioner to continue in the shop room for the remaining period under the licence. 3. Perusal of the record reveals that this matter was taken up on 17.4.2015 and this Court in a Division Bench by order dated 17.4.2015 while issuing notice considering the Misc. Case No.5245 of 2015 passed the following order: “Heard. As an interim measure, it is directed that the operation of the demand notice dated 04.03.2015 under Annexure-7 shall remain in abeyance till the next date but, the pendency of the writ petition shall not stand on the way of consideration for shifting of the petitioner’s shop at an early date.” 4. Pursuant to the notice, on its appearance, the opposite party nos. 2 to 4 filed a counter affidavit in sum and substance submitting as follows: “The petitioner having entered into an agreement with State voluntarily, containing particular conditions in the agreement cannot wriggle out of the terms of agreement. Pursuant to the notice, on its appearance, the opposite party nos. 2 to 4 filed a counter affidavit in sum and substance submitting as follows: “The petitioner having entered into an agreement with State voluntarily, containing particular conditions in the agreement cannot wriggle out of the terms of agreement. The impugned action for temporary closure of Posala IMFL OFF Shop was rather an administrative compulsion to evade any untoward incident resulting outburst of public resentment against the functioning of the said shop and the administration had no other option than to close the shop for preservation of public peace. In substantiating their above stand, the opposite party nos. 2 to 4 further submitted that while the shop was functioning at Hata Delanga, public resentment against the shop arose. Consequently the matter ended with an administrative direction accepting the proposal of the licencee to shift the OFF shop to Posala under Jenapur Grama Panchayat and the shifting was allowed accordingly. But soon after shifting the shop room took place, the administration received public compulsion under the signature of the Sarpanch of Jenapur Grama Panchayat submitted to the Collector Puri-opposite party no.3 and this complaint compelled the district administration to resort to the temporary closure of the shop for preservation of public peace. The opposite party nos.2 to 4 have also annexed the copy of the public complaint taking into consideration. It is under this premises, the opposite party nos. 2 to 4 justified their action in proper and prayed for not entertaining the writ petition.” 5. From the pleadings and the submissions of the petitioner, it appears that there is no dispute regarding installation of the IMFL OFF Shop belonging to the petitioner providing licence to the petitioner for having IMFL OFF Shop at Hata Delanga and the fact that upon consideration of some objection, not only the district administration arrived at a decision for shifting of the Hata Delanga IMFL OFF shop to Plot No.501, Khata No.255, Mouza-Posala, G.P.-Jenapur, P.S.-Delanga, there is also no denial by the respective parties to the fact that it is as a result of the above development. By direction under Annexure-3, the Hata Delanga IMFL OFF shop was shifted to Plot No.501, Khata No.255, Mouza-Posala, G.P.-Jenapur in the district of Puri for the remaining period of the year 2014-15. By direction under Annexure-3, the Hata Delanga IMFL OFF shop was shifted to Plot No.501, Khata No.255, Mouza-Posala, G.P.-Jenapur in the district of Puri for the remaining period of the year 2014-15. The shifting order under Annexure3 further makes it clear that the IMFL OFF Shop has not been shifted to the above place permanently but the shifting was for the remaining period of the year 2014-15 or till next settlement through ‘e-auction’ whichever is earlier subject to further conditions noted therein. But looking to the grievance of the petitioner, the only question remains to be considered, whether the order under Annexure-4 is valid or not? The submission of the petitioner in this regard is that once the shifting of the shop room as appearing under Annexures-2 and 3 had taken place upon consideration of the objection and counter to the objections by the respective parties, before passing the order under Annexure-4 dated 27.10.2014, opportunity ought to have been given to the licencee. From perusal of the records it appears that the final shifting order of the IMFL OFF Shop was passed on 30.9.2014. The submission of the State i.e. opposite party nos. 2 to 4 is that in view of the complaint under Annexure-6 to the writ petition they had no other option than to resort to the temporary closure of the IMFL OFF Shop at Posala. The opposite party nos. 2 to 4 further claimed that the objection in Annexure-6 was pursuant to a resolution dated 25.7.2014 of the Panchayat, copy of which is also filed by the State, opposite party nos. 2 to 4 as Annexure-A/2. Perusal of the documents vide Annexure-A/2 as well as Annexure-6 makes it clear that the complaint to the Collector vide Annexure-6, no where indicates regarding the resolution adopted by the Jenapur Grama Panchayat. The complaint vide Annexure-6 also clearly reflects that the complaint reached the Office of the Collector Puri on 31.10.2014 without even annexing a copy of the resolution stated hereinabove. From the above, it clearly appears that not only the complaint contained with file did not disclose the resolution of the Grama Panchayat but it also reached the Collector’s Office on 31.10.2014 along with a copy of the same to the Superintendent of the Excise, Puri. From the above, it clearly appears that not only the complaint contained with file did not disclose the resolution of the Grama Panchayat but it also reached the Collector’s Office on 31.10.2014 along with a copy of the same to the Superintendent of the Excise, Puri. Thus, there was no occasion for the Superintendent of Excise, Puri to pass the impugned order dated 27.10.2014 before the complain reached its office. Further, it is not known as to when this complaint reached the Office of the Superintendent, Excise, Puri. That apart from the perusal of the complaint under Annexure-6 also appears at Annexure-B/2, no where discloses any allegation against the licencee or functioning of the IMFL OFF Shop at Posala. The complaint on the other hand gives a case of illegal sale of spurious liquor by unauthorized persons in the area as a result of which there is some inconvenience in the locality. The representationists even further requested the district administration that the situation became worse after the temporary closure of the authorized shop and the Secretary thereafter again requested the district administration to open the petitioner’s shop in order to prevent the sale of liquor. Further perusal of the Panchayat resolution as appearing at Annexure-5 as well as Annexure-A/2, it clearly indicates that the Panchayat had no objection if a shop is opened at Posala chhaka. Both the above make it clear that there has been total misreading of the resolution under Annexure-5 again appearing at Annexure-A/2 and the complaint under Annexure-6 again appearing at Annexure-B/2 by the district administration as well as the Superintendent of Excise. The order under Annexure-4 is not only passed in non-consideration of the resolution of the Grama Panchayat as well as the complaint under Annexure-5 and Annexure-6. Further, it is also observed that before passing the order for temporary closure of the Posala IMFL OFF Shop, the petitioner has not been afforded with reasonable opportunity. Under the circumstances, the order under Annexure-4 cannot be sustained in the eye of law. 6. From the impugned order, it also appears that the Collector, Puri has passed the temporary closure order in exercise of power under Section 26(1) of the Bihar & Orissa Excise Act, 1915. Under the circumstances, the order under Annexure-4 cannot be sustained in the eye of law. 6. From the impugned order, it also appears that the Collector, Puri has passed the temporary closure order in exercise of power under Section 26(1) of the Bihar & Orissa Excise Act, 1915. Section 26 (1) of the Bihar & Orissa Excise Act, 1915 reads as follows: “26.Powers to close shops temporarily-(1) The District Magistrate or a Sub-divisional Magistrate, may, by notice in writing to the licensee, require that any shop in which any (intoxicant) is sold shall be closed at such times or for such period as he may think necessary for the preservation of the public peace:” xxx xxx xxx 7. From the above, this Court finds that there is a serious legal flaw in the action of the Collector. Since Section 26 (1) clearly postulates a notice in writing to the licencee under the circumstances of any intoxicating it sold before temporary closure of such shop and further if a closure is required for a continuation period of more than 3 (three) days, the approval of Excise Commissioner shall be taken. Compliance of natural justice is a compulsion. The impugned order has been passed not only in improper consideration of the protest available at Annexure-6 but also being contrary to the provisions contained in Section 26 (1) of the Bihar & Orissa Excise Act and same cannot be sustained in the eye of law. This Court sets aside the order under Annexure-4. 8. In the result, the writ petition succeeds to the extent indicated hereinabove. However, there shall be no order as to cost. Petition Succeeds to the extent indicated.