Orissa High Court
Kshamanidhi Samal vs State Of Odisha And Others on 17 February, 2016
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
IN THE HIGH COURT OF ORISSA, CUTTACK.
W.P.(C) No. 20 OF 2016
An application under Articles 226 and 227 of the Constitution of
India, 1950.
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Kshamanidhi Samal ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. parties
For Petitioner - M/s. B.P. Das, J.S. Maharana
and D.K. Panda
For Opp. parties - Addl. Government Advocate
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE INDRAJIT MAHANTY
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument-27.01.2016 : Date of Judgment-17.02.2016
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DR. D.P. CHOUDHURY, J. The above writ application came to be filed
challenging the action of the opp. parties with regard to non-
shifting ex-free time of IMFL "ON" shop of petitioner from the
existing site to new site.
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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
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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. 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
opp. 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
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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. Opp. 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
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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 opp.
Parties and on frivolous grounds the request of the petitioner has
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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?
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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. 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.
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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.
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 metrs 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:
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"(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 rresident 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 Dt.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. Dt.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 Dt.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:
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"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
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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 s aid 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
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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. 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
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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.
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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 opp. 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.
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Dr. D.P. Choudhury, J
I. MAHANTY, J.I Agree.
.................................. I. Mahanty, J Orissa High Court, Cuttack Dated the 17th February, 2016/DNP 15