HIGH COURT OF ORISSA: CUTTACK WP(Cl No. 12228 of 2010 In the matter of an application under Articles 226 8:. 227 of the Constitution of India Ashok Kumar Majhi 8:. another .... .. Petitioners State of Orissa 8:, others .... .. Opp.Parties M / s Upendra Kumar Samal, C.D.Sahoo, S.P.Patra and M.R.Mohap'atra. ' ' For Petitioners For Opp. Parties ' Mr. D.Panda, A.G.A. For Intervenor Mr. Sanjit Mohan1:y,Sr.AdVocate _______ __L-_-____ PRESENT: TI-IE HON'BLE CHIEF JUSTICE SHRI V.GOPALA GOWDA 3. 85 77 THE HON'BLE SHRI JUSTICE INDRAJIT MAI-IAANTY. Date of hearing: 27.9.2010 Date of Judgment: /0 .2010 I.Mahanty, J. In the present writ petition the petitioners herein claiming themselves to be the social workers and villagers of village Boden in the District of Nuapada in the State of Orissa have prayed for quashing of Notice No.248 dated 10.7.2010 issued by the Collector 82; District Magistrate, Nuapada for settlement of India Made Foreign Liquor Off shop (in short "IMFL Off shop") through lottery for the year 2010-11 at village Boden. 2. Mr. U.K.0amal, learned counsel for the petitioners submitted that a public notice Was issued by the Superintendent of iExcise of Nuapadaion 11.11.2-009 inviting objections from public regarding the proposal of the State Government to grant exclusive privilege for opening of new IMFL Off shop for retail sale at village Boden and by the said notice objections were required to be filed on or before 26.11.2009. The period indicatedin the notice for grant of exclusive privilege was from 1.0472010 to 31.00.2011. Pursuant to the aforesaid notice the Chairman of Boden Panchayat Samiti, one Mr. Krushnérsingh Majhi has submitted an objection dated 21.1 1.2009 under 4AnneXure-4 stating therein, that the village Boden is a backward tribal area Where the local inhabitants are fully depending upon agriculture _ and substantial number of them are living below the poverty line. Accordingly objection was made to the opening of IMFL [Off shop, since it was likely to cause harm to the village people instead of their upliftment. It is' further 1 submitted that by a further letter dated 23.12.2009, the Chairman of Boden Panchayat Samiti submitted another objection reiterating his earlier objection and also. stating that the Boden Panchayat Samiti and Boden Gram Panchayat had passed ,a resolution, to the effect that no foreign liquor shop should be opened at village Boden for the benefit of the people. 3. Mr. Samal further submitted that the public notice inviting objection dated 11.11.2009 under Annexure-3 did not satisfy the requirement of Section 22 of the Bihar and Orissa Excise Act, 1915 since the notice failed to specify the "locality" and the "local area" within which the excise privilege was intended to be granted Was to be exercised. 4. A further plea Was taken by the learned' counsel for the petitioners that, on an earlier occasion the Collector, Nuapada had issued public notice for opening of 'a new IMFL Off shop at village Boden for the period from 1.04.2008 to 31.03. 2009 Vide public notice dated 5.11.2007
under Annexure-1 and since the objections were raised by
the Panchayat, the State ‘Government had decided not to open the said
IMFL Off shop during the said year; It is submitted that the very
reasons which existed for not opening an IMFL Off shop at village
Boden in the district of Nuapada for the year 2008-2009, still continue
to exist as on date and therefore, the rejection of the objection raised by
the Chairman of the Panchayat Samimit, Boden under Annexures-4
and and the decision to go ahead for grant of exclusive privilege by
opening an IMFL Off shop at village Boden for the year 2010-11, vide
notice dated 10.07.2010 under Annexure–6 is liable to be quashed.
5. Mr. Samal further contended that assuming for the sake
argument that an IMFL Off shop was required to be opened at village
Boden, even then, the decision of the State’ Government to settle the
said IMFL Off shop through “lottery” was not in consonance Section
29(2)(a) of the Bihar and Orissa Excise Act, 1915, since, it was
stipulated therein that the State Government may grant -exclusive
privilege either by “auction” or by calling “tender” or otherwise as the
State Government may, in the interest of excise revenue by general or
special order dir’ect..He further submits that there was no necessity for
deciding to open an IMFL shop at Boden through “lottery”, as, holding of
a lottery was not specifically permissible in terms of the aforesaid
statutory stipulation under the Bihar 85 Orissa Excise Act, 1915.
” 6. Mr. D.Panda, learned Additional Government Advocate
appearing for the State responded to the aforesaid contentions by
stating at the outset that, the State had complied with all the
procedural requirements prescribed under Bihar & Orissa Excise Act
for the purpose of opening of an IMFL Off shop at village Boden.
7. Both, the learned counsel appearing for the State as well as
Mr. Sanjit Mohanty learned Senior Advocate appearing for the
intervenor submitted that the petitioners have no locus standi to file the
present writ petition as “public interest litigation”, since the petitioners
have never filed any objection to the opening of an IMFL Off shop at
village Boden. Apart from the above, the learned counsel for the
intervenor submitted that, the objection annexed as Annexure-4 dated
21.11.2009 filed by Sri Krushna Chandra Majhi, Chairman -of Boden
Panchayat Samiti was duly considered and an enquiry was carried out
by the Officers of Excise Department at the Collectorate and found no
merit in the said objection. Apart from this Mr. Mohanty, learned
counsel for the intervenor submitted that the self-same objector. i.e’.,
Chairman of the Boden Panchayat Samiti had subsequently by letter
dated 23.12.2009 addressed to the Collector & District Magistrate,
Nuapada admitting the requirement of an IMFL Off shop and suggesting
that such IMFL Off shop retail licence may be granted. 0 I V
8. Mr. Panda,’ learned Addl. Government Advocate, placed
reliance on the averments made by opposite parties 3 and 4 in the
counter affidavit filed on their behalf by the Superintendent of
Excise, Nuapada and in particular the factual contention raised in
paragraphs–6 and 8. Relying on the same learned Additional
Government Advocate submitted that, it is a fact that the IMFL Off shop
at Boden was not sanctioned for the year 2008-09 apart from three
other proposed new IMFL shops at Hatibandha, Dharambandha and
Udiyanbandh of the self–same district for preservation of public peace.
However, as per the policy decision of the Government for the year
2009-10, two numbers of new IMFL Off shops namely, Lakhna and
Boden were proposed in the district. It is further averred that the
objection filed by the Chairman of the Panchayat Samiti, Boden under
Annexure-4 did not contain any resolution of the Gram Panchayat and
the objections raised was duly enquired into by the Inspector of Excise
of Nuapada and the said objection letter was duly sent to the State
Government along with the views of the Collector after due enquiry
along with the proposal vide letter No. 88 dated 15.3.2010′. In’ so far as
further alleged objection dated 23.12 2009 under Annexure-5 of the
Chairman of Boden Panchayat Samiti is concerned, learned Additional
Government Advocate submitted that, the said objection having been
admittedly sent after 26.11.2009, i.e. last date for receipt of objection,__
was not considered since it was received after the last date fixed -for
receipt of objection.
9. Mr. Panda further ‘submitted that the intention’ of the State
Government behind granting permission for opening of an IMFL [Off
shop at village Boden Was not merely to raise excise revenue of the
State but was also aimed at stopping and/ or preventing illicit
distillation/ boot legging in the local area and therefore, in the public
interest it was required to open the IMFL Off shop for encouraging
legitimate business and to assure unadulterated product to the
consumers. ‘I-le, therefore, submitted that the decision of the State
Government to open an IMFL Off shop at Boden was not only limited to
protect the interest of revenue of the State but also to protect the
interest of public health and safety and therefore, objection raised
under Annexure-4 was not justified. G
10. Mr. Sanjit Mohanty, learned Sr. Advocate appearing for the
interVenor- Ghanashyama Meher submitted that, the public notice
inviting public objection under Annexure-3 had duly. complied with the
requirement of the Section \22/of the Bihar and-Orissa Excise Act read
A with Rules 3 82; 4 of the Orissa Excise (Exclusive Privilege) Foreign
Liquor Rules, 1989. Learned counsel further submitted that by way of _
an g amendment in the year 2005 i.e. on 29.3.2005 the State
Government amended the Orissa Excise (Exclusive Privilege) Foreign
l.,iquor Rules, 1989. and incorporated a new rule therein numbered as
Rule . 3-A in which it was stipulated: “Notwithstanding anything
contained in rule-3, the Collector of the district shall fix the local area of
the shop coterminous with the location of the shop.”
10.1 Mr. Mohanty, learned Sr. Advocate further submittedthat the
contention of the petitioners that grant of exclusive privilege through
“lottery” was contrary» to the requirements of Section 29 (2)(a) of the
Bihar & Orissa Excise Act, 1915 is wholly misconceived. It’is submitted
that the settlement for grant of rights of exclusive privilege by the State
Government was permissible not only through “auction” or by calling
upon “tenders” or otherwise as the State Government may, in the
interest of excise revenue, by general or special order, direct. Learned
counsel further submitted that pursuant to such authority being vested
in the Government, the State of Orissa issued an “Order by the Revenue
85 Excise Department on 23.4.1990” which was published in the
extraordinary gazette issue No. 538 of the Orissa Gazette, dated the
23rd April, 1990, which has since been amended from time to time. The
learned Senior Counsel placed reliance on an amendment brought
about to the said order of the State Government of ‘ Orissa vide
amendment dated 28.4.2005 whereby, in specific terms and permission ,
was granted for ‘settlement of IMFL Off shops “through a lottegg
rocedure”. In terms of such procedure the State Government was duly
empowered to grant such exclusive privilege through lottery system in
certain cases. Notice of the Court was also drawn to Form-A to the
aforesaid amendment of the Government order which contains the
description inviting application for settlement of IMFL Off shop through
‘ “lottery” and particularly Clause–3(vii) of the said Form-A”, in which it
has been noted:
“The “State Government will not be responsible
for providing the place for location of shops and it would
be responsibility of the privilege holder to arrange
suitable place and carry on the privilege granted to him.
The place so arranged shall be free from objection from
the public.”
1 1. Mr. Mohanty further drew the attention of the Court to Form-
B of the aforesaid amendment of the Government order and stated that,
the intervenor and forty–one other individuals had applied for grant of
licence for opening of IMFL Off shop at village Boden through “lottery”
system and accordingly, the intervenor was found to be successful in
such lottery and became entitled for grant of such exclusive privilege.
Mr. Mohanty further submitted that, no objection against grant of
exclusive privilege by “lottery” ought to be entertained, since the same is
in consonance with the Government Order issued for such purposes
and as amended from time to time as quoted hereinabove. He further
submitted that in the present case no challenge has been made by the
petitioners to the Order of the State Government dated 23.04. 1990’or to
the subsequent amendments including. the amendment dated
28.04.2005. Accordingly, he submitted that since no challenge has
been made to the above, petitioners’ objection against grant of exclusive
privilege through “lottery” is wholly baseless and deserves to be rejected
out right. It is further submitted that even though; the intervenor was
found successful in the lottery held for the purpose of identification of
an exclusive privilege holder for an IMFL Off shop at village Boden in
the district of Nuapada since 23.07.2010 due to an interim order
passed by this Court in the present proceeding, the intervenor has not
been able to operate the same and prays for dismissal of the Writ
10
petition and vacation of the interim orders in order to operate exclusive
privilege. I
12. Mr. Samal, learned counsel for the _petitioners placed reliance
on the judgment of this Court in the case of Sarat Kumar Sahu 82;
another v. Collector, Cuttack and another, 73 (1992) CLT 834(para-
6) in order to support his contention that the “locality” as well as “local
area”, needs to be declared in the public notice. We are of the
considered View that the aforesaid judgment would have no application
to the present case, since an amendment was made’ on 29.03.2005 to
‘9 the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989,
introducing Rule–3-A’. thereof. In View of such amendment to the
aforesaid rules, which came into force subsequent to the aforesaid
decision referred hereinabove and on perusing Annexure–3, We are of
the considered view that the said public notice satisfies the
requirements of 1989 Rules referred to herein above. Hence,” the
judgment relied upon by the petitioners is of no assistance. The
petitioners also placed reliance on a judgment of the Honfble Supreme.
Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC
1984, in particular, paragraphs 38 and 39 thereof, in order to
substantiate his stand that, the “reasons” need to be recorded While
rejecting an objection made to opening of an IMFL Off shop.
11
13. In this regard, reliance was placed by the learned Senior
Counsel for the intervenor on the judgment of the Hon’ble Supreme
Court in the case of Mohinder Singh Gill and another V. The Chief
Election Commissioner, New Delhi, AIR 1978 SC 851 and submitted
that the “reasons for rejecting’ objection raised by the Chairman of
Boden Panchayat Samiti are available in the records of the proceedings
of the Collector/ State Governmentibasing uiponithe enquiry made by
the Collector through the Excise Inspector and therefore, reasons being
in existence in the records of the State can also be ‘referred to and
therefore this contention of the petitioners is rejected.
14. In this connection it would be I appropriate to quote the
relevant portions from the inquiry report submitted by the Inspector of
Excise, Nuapada. They are extracted below:
“The villagers of Boden G.P. have filed objection
petition praying for not opening I.M.F.L. shop at Boden. On
my inquiry thoroughly and I have ascertained that the Boden
is a block headquarters having floating population as about 4
to 5 thousand per day. There is also no any kind of l.M.F.C.
shops at Boden Block are and alsono such I.M.F.L. shop near
about 30 Kms distance from Boden. There is also feasibility
for the opening of a I.M.F.L. shop at Boden for the interest of
Government revenue and to avoid future complicacy.
, The Chairman, Panchayat Samit, Boden has filed ‘
his objection in his letter No. 282 dated 27.11.09 not to open
I.M.F.L. shop at Boden. On inquiry of the petition, I have
physically found that the objection filed by him is quite
baseless. Also in the past, I have personally along with my
Superintendent, both of us went to his native place on
09.08.09 and contacted with him in this respect. He has
12
submitted Written statement before us stating that he has got
no objection in case of opening of new I.M.F.L. shop there.”
15. Apart from the above, learned Additional Government
Advocate also-referred to para-8 of the counter affidavit vvhich provide
the reasons for which the State Government rejected the /objection
raised by the objectors. Accordingly, after perusing the records of the
case provided to us by the learned counsel for the ‘State, we find that
adequate andcogent reasons exist in the record to justify the decision
of the State Government to open an IMFL Off shop at vfllage Boden in
the district of Nuapada and find no «merit in the contention ‘raised by
the petitioners. ‘ A
16. Therefore, we find no merit in the present Writ petition and
accordingly, direct dismissal of the same and vacate all the interim
orders. In view of the judgment passedtoday in this writ petition, all the
misc. cases stand disposed of. ‘ , ,_ V V _m
j .9 “‘VlC9’l/\4arA»lyJ,T.’
94 ~ C/CL’€(s’ 7v247Due~
MAW.
my
V.Gopala Gowda, C.J. I agree.
”’\*6”””
ORISSA HIGH COURT, CUTTACK
W October,20lO /AKD
