Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 134 (ORI)

Kshamanidhi Samal v. State of Odisha

2016-02-17

DURGA PRASANNA CHOUDHURY, I.MAHANTY

body2016
JUDGMENT : Durga Prasanna Choudhury, J. 1. The above writ application came to be filed challenging the action of the opposite parties with regard to non-shifting ex-free time of IMFL "ON" shop of petitioner from the existing site to new site. FACTS : 2. The unraveled story of the case of the petitioner is that the petitioner was allowed by the State Government to run IMFL "ON" shop over a plot in village Bhanapur in the district of Cuttack for the period 2010-11 vide Annexure-1. Thereafter the license of the petitioner has been renewed from time to time for the years 2011-12, 2012-13 and 2013-14 by the competent authority. While the petitioner was continuing his business, opp. Party No. 3, the Collector, Cuttack issued a notice to the petitioner to shift his "ON" shop in question to an unobjectionable site to avoid any disturbance in the residential building and alleged public objection and true copy of the order is annexed as Annexure-3. Then the petitioner chose a new site and requested the authorities to allow him to operate his "ON" shop at the new place. The Superintendent of Excise vide order dated 31.3.2014 rejected the proposal of the petitioner for shifting of his "ON' shop to the new site on the ground that such site is located within 35 Mtrs. of State Highway in terms of the guidelines issued by the Excise Department vide Annexure-4. 3. It is stated by the petitioner that challenging such order dated 31.3.2014 the petitioner had earlier preferred Writ Application vide W.P. (C) No. 20631 of 2014 before this Court on the ground that the plea taken by the State in referring the guidelines dated 1.6.2014 of the Government in Excise Department is unsustainable. This Court directed the authorities to reconsider the application for operating the "ON" shop of the petitioner and to approach the authorities. Accordingly the petitioner applied on 22.8.2015 to the competent authority-Collector for shifting of his "ON" shop. At the same time it is stated by the petitioner that the Collector, Cuttack has invited objection vide notice dated 22.9.2015 under Section 22(1-a) of the Bihar and Orissa Excise Act, 1915 and no objection was stated to have been received from any quarter to the shifting. At the same time it is stated by the petitioner that the Collector, Cuttack has invited objection vide notice dated 22.9.2015 under Section 22(1-a) of the Bihar and Orissa Excise Act, 1915 and no objection was stated to have been received from any quarter to the shifting. So the Collector by virtue of the provisions made in Rule-34 of the Orissa Excise Rules, 1965 (hereinafter referred to as "the Rules") allowed for renewal of the license in the proposed new site. It is further stated by the petitioner that the opposite Party No. 2, the Excise Commissioner to the ill luck of the petitioner, rejected the proposal of shifting of his "ON" shop vide order dated 9.11.2015. Thereafter the order of the Excise Commissioner was communicated to the petitioner with a request to find out some other location for relocation of his "ON' shop vide Annexure-8. The rejection orders dated 9.11.2015 and 5.12.2015 being illegal, arbitrary and not in accordance with the prevailing provision of law vide Rule 92 of Instruction framed by the Board of Revenue, Orissa and is against the interest of liquor traders and loss to exchequer. Impugned orders are also discriminatory in nature. Rule-92 of the Instruction framed by the Board of Revenue clearly says that while the Excise shop is settled with the right of the vendors, the right of the latter is settled. 4. Paragraph 3(V) of the Excise Department Notification No. 2914/Ex. dated 28.04.2005 speaks that "A shop once starts operating in its sanctioned locality shall not ordinarily be removed. However, shifting of a shop to any site other than the sanctioned locality for any special reasons shall be subject to the approval of the Excise Commissioner." Thus, the petitioner being afraid of the illegal action being taken by the Excise Commissioner has knocked the door of this Court. Hence the writ. 5. Opposite Parties 2, 3 and 4 filed counter through the Superintendent of Excise, Cuttack stating that the action on the part of the State to reject the shifting proposal of the "ON' shop of the petitioner from the existing site to new site in Ward No. 46 of Cuttack Municipal Corporation (the Corporation) in different charge area is not discriminatory. Opposite Parties 2, 3 and 4 filed counter through the Superintendent of Excise, Cuttack stating that the action on the part of the State to reject the shifting proposal of the "ON' shop of the petitioner from the existing site to new site in Ward No. 46 of Cuttack Municipal Corporation (the Corporation) in different charge area is not discriminatory. It is further stated that shifting of "ON" and "OFF" shop cannot be considered in a similar footing and for instance the shifting of one "OFF" shop from Nayasarak at one charge area to another charge area at Bamphakuda is possible as it does not contravene Rule 34 of the Orissa Excise Rules, 1965. It is further stated in the counter affidavit that the proposal of the petitioner for shifting of his "ON" shop to Tartol under Ward No. 45 of the Cuttack Municipal Corporation was not acceded to as it was located within 35 Mtrs. of State Highway and contravening the guidelines dated 1.6.2012 and 18.1.2014 of the Government in Excise Department which stipulates that no liquor shop shall be allowed within 50 Mtrs. of National Highways/State Highways. In order to justify the orders dated 9.11.2015 and 5.12.2015 under Annexures-7 and 8 respectively the contesting opp. Parties submitted in the counter affidavit that in consonance with the prevailing practice for shifting of the shop in the same charge area is permissible because of Rule-92 of the Instructions framed by the Board of Revenue which is not discriminatory in nature. 6. Since the Excise Commissioner, Odisha is the competent authority for approval of shifting of any liquor shop in terms of Rule-92 of the Instruction framed by the Board of Revenue, Odisha, rejection of the petitioner's proposal for shifting of IMFL "ON" shop from the existing site at Bhanapur under Phulnakhara charge area to a new site at Gandarpur in Ward No. 46 of Cuttack Municipal Corporation under Cuttack Rural Excise Charge Area by the Excise Commissioner cannot be said as arbitrary or discriminatory. SUBMISSIONS: 7. Learned counsel for the petitioner submitted that the earlier order of this Court has not been properly followed by the opposite Parties and on frivolous grounds the request of the petitioner has been turned down for shifting of his "ON" shop. SUBMISSIONS: 7. Learned counsel for the petitioner submitted that the earlier order of this Court has not been properly followed by the opposite Parties and on frivolous grounds the request of the petitioner has been turned down for shifting of his "ON" shop. He further submitted that in fact the conditions in Rule-34 of Orissa Excise Rules, 1965 have been followed because the proposed site is within the concentrated area of the local Municipal Corporation and there should not be any restriction for opening of shop there. He further submitted that the grounds of the Excise Commissioner towards rejection of the request of the petitioner is not only illegal, but also against the principle of natural justice. He further submitted that the grounds of refusal by the Excise Commissioner to open the shop in new site does not get approval of any legislation or Government orders. He submitted to allow the writ petition. 8. Learned Addl. Government Advocate submitted that the order of this Court has been properly followed and on due consideration it is found that the proposed site is within 50 Mts. of the National Highway/State Highway as explained in Rule-34 of the Excise Rules, for which rightly it has been rejected by the authorities. He submitted that the proposed site is absolutely violation of Rule-34 of the Rules and the Instruction of the Board of Revenue, for which the petitioner should not be allowed to open the IMFL "ON" shop in the proposed site. POINT OF CONSIDERATION: "(i) The only point of consideration in this case is as to whether Annexures-7 and 8 are liable to the quashed and the petitioner is entitled to open his IMFL "ON" shop at the proposed site?" DISCUSSION: 9. It is not disputed that the petitioner is a licensee of IMFL "ON" shop vide Annexure-1 since 2010-11 and also his license was renewed for the period from 1.4.2013 to 30.9.2013 subject to shifting of the shop from the existing site to a anew place vide Annexure-2. 10. It is also not disputed that the petitioner had filed W.P. (C) No. 20631 of 2014 before this Court challenging the order dated 31.3.2014, whereunder the petitioner was not allowed to shift his shop to the new site. 10. It is also not disputed that the petitioner had filed W.P. (C) No. 20631 of 2014 before this Court challenging the order dated 31.3.2014, whereunder the petitioner was not allowed to shift his shop to the new site. This Court passed order vide Annexure-5 and disposed of the writ petition with the following observation:-- "In the present writ petition, an additional affidavit on behalf of the opposite parties 2 to 4 has been filed by the Superintendent of Excise, Cuttack enclosing therein a Resolution of the Government of Odisha, Excise Department dated 2.6.2015 (Annexure-A/4). Relevant portion of the aforesaid resolution is quoted herein below: i. The license of the IMFL 'ON' shops which are located within 50 mtrs. of NH/SH should be shifted to 50 mtrs. away from NH/SH. Highways mean National Highways and State Highways and shall not include the part of the National Highway or State Highway which passes within the concentrated developed area of the Municipal Corporation, Municipality or NAC or the Urban Local Bodies. On the outskirts of a city even if it falls within the municipal limits but it is not a concentrated developed area, the 50 mtrs. Rule will apply. In future no new IMFL 'ON' shops should be recommended within 50 mtrs. of the NH/SH. ii. Whenever a bye pass is constructed, the portion of old National Highway which is replaced by the bye pass may not be considered as National Highway so far as the excise shops are concerned i.e. it be treated as a city road. iii. In order to implement the 50 mtrs. Rule for shifting, the EP-holders may be allowed maximum 3(three) months time for relocation. In view of the aforesaid policy decision of the State, we direct the petitioner to make fresh application indicating the location of its site for consideration of the Excise Commissioner, Odisha, Cuttack/Superintendent of Excise, Cuttack which shall be dealt with in terms of the guideline issued by the Excise Commissioner, Odisha, Cuttack vide letter dated 1.6.2012 as supplemented by Resolution of the Government of Odisha, Excise Department dated 2.6.2015 (Annexure-A/4). The said application, if made, within a period of four weeks from today, the same shall be considered and disposed of within a period of eight weeks thereafter. The said application, if made, within a period of four weeks from today, the same shall be considered and disposed of within a period of eight weeks thereafter. In course of hearing of this case, since the policy decision of the Excise Department has been brought to our notice, we find that the State has taken a decision to implement the 50 meters Rule relating to "ON" as well as "OFF" shops and they have stated that the EP-holders may be allowed maximum three months time for relocation from the date of issue of the resolution." 11. Pursuant to the orders of this Court, the Collector made enquiry and made recommendation to the Excise Commissioner with the following observation: "(1) The new proposed site is situated in Ward No. 46 of Cuttack Municipal Corporation which belongs to one Smt. Pratima Patra, W/o-Sri Basanta Kumar Patra resident of Gandarpur, P.S-Chauliaganja Dist-Cuttack who agreed to let out her building for opening of IMFL Restaurant "ON" shop and executed registered deed of lease agreement with the applicant. It is a private plot and the kissam is Gharbari. (2) The new proposed site is situated 10 Mtrs away from NH-16 and about 3.5 Kms and 2 Kms away from Jagatpur-Chandabali State Highway and Cuttack-Paradeep State Highway respectively. Though it is situated close to National Highway, as per letter Dated 02.06.2015 of Govt. of Odisha, Excise Department 50 Mtrs Rules is not applicable in this case as it is located within the concentrated developed area of the Cuttack Municipal Corporation. (3) So far as the restrictions of Rule-34 of Orissa Excise Rule-1965 are concerned, the new proposed site does not violate any restrictive provisions. Public notice inviting objection from the local inhabitants of the proposed new site was invited vide Notice No. 2046/Ex. Dated 22.09.2015 fixing the last date for receiving the objection to 07.10.2015. In response, no objection from any quarter has been received. In view of the facts stated above shifting of the shop may be considered and placed before the Government for sanction of the shop for the remaining period of 2015-2016 in view of the time bound orders Dated 14.07.15 of the Hon'ble High Court of Odisha passed in W.P. (C) No. 20631/2014." 12. In view of the facts stated above shifting of the shop may be considered and placed before the Government for sanction of the shop for the remaining period of 2015-2016 in view of the time bound orders Dated 14.07.15 of the Hon'ble High Court of Odisha passed in W.P. (C) No. 20631/2014." 12. No doubt vide Annexure-7 the Excise Commissioner turned down the recommendation of the Collector with the following observation: "The proposal for shifting of Free Time IMFL Restaurant 'ON' shop submitted vide District Excise Office letter No. 2340/Ex. dated 31.10.2015 has been examined and found that the new site proposed for shifting is eight (08) K.M. away from the existing site that too in a separate excise charge area. Excise shops are supposed to be shifted in the same locality or in the vicinity or at least in the same excise charge area so that, local demand for liquor can be fulfilled. But, in the instant case the shop is proposed to be shifted to a totally different place under a different excise charge area making it equivalent to a new 'ON' shop proposal." 13. In view of the observation it has to be seen whether the recommendation of the Collector being followed by the observation of the Excise Commissioner are within the precinct of the law. No doubt granting of license for consumption of liquor on vendor's premises is restricted under Rule-34 of the Rules. Relevant Rule is extracted below:-- "Rule-34. Licences for shops for consumption of liquor on vendor's premises not to be granted at certain places- [(1) No new shop shall be licensed for the consumption of liquor on the vendor's premises,- (a) in a market place, or (b) at the entrance to a market place, or (c) in the close proximity to a bathing-ghat, or (d) within at least 500 meters from a place of worship, recognised educational institution, established habitat especially of persons belonging to Schedule castes and labour colony, mills and factories, petrol pumps, railway stations/yard, bus stands, agricultural farms or other places of public resort, or (e) within at least one kilometer from industrial, irrigation and other development project areas, or (f) in the congested portion of a village: Provided that the restriction on the minimum distance as mentioned under Clauses (d) and (e) may be relaxed by the State Government in special circumstances. (2) So far as practicable, and established liquor shop licensed for the consumption of liquor on the premises shall not be allowed to remain on a site which would not under Sub-rule (1) be permissible for the location of a new shop. (3) In areas inhabited by Scheduled Tribes, country spirit shop shall not be licensed to be placed immediately on the side of main road or in any other prominent position that is likely to place temptation in their way." 14. From the aforesaid provisions, it is made clear that the said provision is applicable to the IMFL "ON" shop of the petitioner. It appears from the order of this Court that State Government has issued resolution as provided to proviso (1) to Rule 34 of the Rules, 1965, where it has been made clear that the IMFL "ON" shop should not be locate d within 50 Mts. Of National Highway/State Highway, but said restriction is not applicable if that Highway has passed within the concentrated developed area of Municipal Corporation/Municipality/N.A.C. Area/Urban Local Bodies. It is also made clear from the resolution that whenever a bye-pass is constructed the portion of the old National Highway which is replaced by the bye-pass may not be considered as National Highway for the purpose. Now reading Rule-34 of the Rules and the resolution together it is apparent that the license for the IMFL "ON" shop can be granted only if the shop is located beyond 50 Mts. from the National Highway/State Highway but that rejection is not applicable if the shop is proposed to be inside the concentrated developed area of the Municipal Corporation/Municipality/N.A.C./Urban Local Bodies. Of course license can be granted subject to public objections. Keeping in mind of this provision of law and the resolution issued by the State Government on the subject while tested the Collector's report it is clear that the proposed site is within 50 Mts. from the National Highway No. 16, but it is within the concentrated developed area of Cuttack Municipal Corporation and the restriction under Rule-34 of the Rules does not apply to the said area. Adding to this the Collector has opined that there is no objection received from any other quarter. from the National Highway No. 16, but it is within the concentrated developed area of Cuttack Municipal Corporation and the restriction under Rule-34 of the Rules does not apply to the said area. Adding to this the Collector has opined that there is no objection received from any other quarter. On the other hand, the observation of the Excise Commissioner vide Annexure-7 shows that the proposed shop is only 0.8 K.M. away from the existing site and that too in a separate charge area although it is required that the proposed Excise "ON" shop is to be relocated in the same locality or in the same vicinity or at least in the same excise charge area to meet the demand of the local people. Nothing found from Rule-34 of the Rules or from the resolution of the State Government that the shifting can be made to a place within the same locality or same vicinity or within the same charge area. The observation of the Excise Commissioner also does not reveal as to under what provision of law such principle was made for the IMFL "ON" shop. There is nothing found from the counter affidavit that under what provision of law the observation of the Excise Commissioner has been made. No doubt the observation of the Excise Commissioner is final so far as the license is granted to the liquor shop keepers, but if it is not supported by any provision of law that should not be looked into, instead the report of the Collector which is based on provisions of law should be accepted. 15. In terms of the above discussions, we are of the view that Annexure-7, the report of the Excise Commissioner, Odisha contravenes the Rule, 1965 including resolution issued thereunder and as such, not in accordance with the law, for which it is illegal and unjust. The observation of the Excise Commissioner communicated to the petitioner vide Annexure-8 is equally bad in law as the same has been issued in pursuance of the observation of the Commissioner of Excise in Annexure-7. On the other hand the observation of the Collector vide Annexure-6 being valid in law is acceptable. As such, Annexures-7 and 8 being apposite to the principle of law are liable to be quashed. The point for determination is answered accordingly. CONCLUSION: 16. On the other hand the observation of the Collector vide Annexure-6 being valid in law is acceptable. As such, Annexures-7 and 8 being apposite to the principle of law are liable to be quashed. The point for determination is answered accordingly. CONCLUSION: 16. In view of the aforesaid analysis when Annexures-7 and 8 area liable to be quashed, we hereby do quash same. Since the report of the Collector is in accordance with law and valid, we are of the considered view that the IMFL "ON" shop of the petitioner should be shifted to the proposed site from the financial year 2016-17. We, therefore, direct the opposite parties to issue order to the petitioner for shifting of the IMFL "ON" shop of the petitioner from the existing site to the new site as per the prayer made in the writ petition within a period of two weeks from today with renewal of his license to continue his shop in the proposed site during 2016-17. It is further directed that the petitioner should not be insisted upon to deposit the license fee for the earlier years when the shop remained closed. The writ petition is allowed accordingly. I. Mahanty, J. – I Agree. Petition Allowed.