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2015 DIGILAW 450 (ORI)

Suresh Chandra Mishra v. State of Odisha

2015-08-03

D.P.CHOUDHURY, INDRAJIT MAHANTY

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JUDGMENT : INDRAJIT MAHANTY, J. 1. The petitioner who is a licensee in respect of Arisol C.S. shop has filed the present writ application with a prayer to direct the opposite parties 1 and 3 to return the consideration money and the MGQ duty amount paid by him for the period of closure of the shop from 9.6.2010 to 30.3.2011 or in the alternative, to adjust the aforesaid amount refundable to him towards his excise dues for operating Arisol C.S. shop at Manatina. 2. The admitted facts in the present case are that the petitioner has been a licensee for Arisol C.S. shop since 2005 and his license was renewed from time to time at the self-same location till 17.5.2010 where the Collector, Puri, apprehending law and order problem in that area, directed temporary closure and thereafter, since the law and order situation continued due to agitation and the "Rasta Roka" etc. by the local residents, by Order dated 9.6.2010 under Annexure 2 directed that the C.S. Shop is hereby closed from the said date, under Section 26(2) of the Bihar and Odisha Excise Act until further orders. This order remained in force till 27.8.2010 under Annexure 3 wherein the proposal for shifting of the petitioners shop to a location at Mangalpur was rejected and the petitioner was directed to locate another unobjectionable site at Delanga Block area. Thereafter, the petitioner took steps to locate an unobjectionable site in Delang Block and the said site was duly approved by the Excise Commissioner, Odisha under cover of letter dated 28.3.2011 and communicated to the licensee by Collector, Puri vide letter dated 30.3.2011. Thereafter, the petitioner re-started his operation at the re-located site i.e. at Manatina w.e.f. 31.3.2011. 3. Mr. Routray, learned counsel for the petitioner submits that the petitioner had to deposit the consideration money as well as the MGQ for the closure period under circumstantial compulsion in order to enable him to obtain the license of the C.S. shop at the re-located site w.e.f. 31.3.2011. He further submits that, had the petitioner not deposited the demanded amount, the question of renewal of his licence for the relocated site, would not have been possible. Hence, the said payment was made under protest and refund/adjustment of the same is the subject matter to be adjudicated in the present writ application. 4. He further submits that, had the petitioner not deposited the demanded amount, the question of renewal of his licence for the relocated site, would not have been possible. Hence, the said payment was made under protest and refund/adjustment of the same is the subject matter to be adjudicated in the present writ application. 4. The counter affidavit has come to be filed by the Inspector of Excise, Office of Superintendent of Excise, Puri on behalf of opposite parties. On perusal of the same, it appears that the State also admit that due to the public agitation against Arisol C. S. Shop, the district administration was compelled to go for temporary closure under Section 26(2) of the B & O Excise Act and the said order of temporary closure continued from 9.6.2010 till 30.3.2011. Therefore, the question that arises for consideration herein as to whether the petitioners claim for refund/adjustment of the consideration money and MGQ deposited by him for the closure period, is justified under law or not? In this respect, learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Krushna Chandra Sahu and Another vs. State of Orissa and Others, 1998 (II) OLR 203 : (1998) 86 CLT 637, wherein this Court considering the facts in the said case came to hold as follows:- "7. Once the Government finds that it is not possible to open shop in the proposed area covered by the relevant notification, we cannot hold that the equity stands against the petitioners who bona-fidely participated in the auction and deposited the amount vide Annexure 1. If, law and order situation do not permit opening of such a liquor in the entire village and that duty and obligation have not been carried by the opposite party no. 1 or is strongly opposed to by them, the petitioners cannot be claimed and the State Government who is supposed to act fairly and equitably, have to refund the licence fee collected from the petitioner." 5. Mr. Bhuyan, learned Additional Government Advocate for the State fairly submits that on the factual aspects of this case, there appears to be no dispute. Mr. Bhuyan, learned Additional Government Advocate for the State fairly submits that on the factual aspects of this case, there appears to be no dispute. However, he places reliance on the averment made in Para 9 of the counter affidavit, the same is quoted herein below:- "Once a shop is settled in favour of an individual, it becomes the responsibility of the licensee in entirety to see that the shop is opened and consequently, he submits that the petitioner is liable under the contract entered into with the State for both the consideration money as well as the MGQ for the period even if the shop remains closed." 6. For adjudicating the aforesaid issue, Section 26(2) of the B & O Excise Act, 1915 is hereby extracted:- "Section 26 - Power to close shops temporarily – (2) If any riot or unlawful assembly is apprehended or occurs in the vicinity of any shop in which any (Substituted by A.L.O. 1937) is sold, any Magistrate or any police officer above the rank of constable, who is present, may require such shop to be kept closed for such period as he may think necessary." On a plain reading of the aforesaid provision of law, it is clear that authorities of the State have the power to close the shop temporarily and the licensee is bound statutorily to abide by such directions. In the present case and the facts situation narrated hereinabove, it is clear therefrom that the Collector, Puri, in exercise of power under Section 26(2) of B & O Act, 1915 directed temporary closure of the shop until further orders. Such order continued to remain in operation from 9.6.2010 till 30.3.2011. Therefore, it cannot be contended or argued that the petitioner, on his own volition, ceased operation of the shop. On the contrary, it is clear that the petitioner was duty bound to effect closure of the shop though temporarily for the duration during which, direction under Section 26(2) of the B & O Act remained in operation. 7. Another important fact is to be noted hereunder is that the petitioner was operating his C.S. license at Arisol since 2005 right till the date of temporary closure i.e. 9.6.2010. 7. Another important fact is to be noted hereunder is that the petitioner was operating his C.S. license at Arisol since 2005 right till the date of temporary closure i.e. 9.6.2010. It is admitted by the learned counsel for the State that the site where he was operating his C.S. shop was not an unobjectionable site as contemplated under the B & O Act. In other words, it is the admitted fact that the site, where the petitioner was operating his shop originally for over a period of six years, was an unobjectionable site. However, due to public agitation by the local residents, the District Administration sought to exercise its authority under Section 26(2) of the B & O Act and directed temporary closure and also directed the petitioner to re-locate the shop room. Such re-location has taken place w.e.f. 31.3.2011. It is also a statutory duty for the licensee to abide by the administrations direction in the larger public interest. But, in the fact situation of the present case, it cannot be stated that the petitioners original shop has been located at an objectionable site and the petitioner had to lawfully comply with the direction issued under Section 26(2) of the B & O Act. Therefore, we are of the clear view that the Judgment rendered by the Division Bench of this Court in the case of Krushna Chandra Sahu (supra), equity in the present case, lies-in favour of the petitioner and against the State. 8. As a consequence of the aforesaid finding, we are of the clear and categorical view that there has been no omission on the part of the petitioner to comply with the direction of the State authority and on the contrary, while complying with the direction of the State authority, insofar as temporary closure is concerned, no penal action nor penalty or claim for consideration money MGQ can be levied on the petitioner though he may be a licensee under the State Excise Act. Accordingly, we direct Opposite Parties 1 and 3 to effect refund or adjust the amount deposited by the petitioner as detailed under Annexure 4 against any future dues of the petitioner who it is stated to be continuing his excise license under the State. 9. With the aforesaid observation and direction, the writ application is allowed.