JUDGMENT
G.B. Pattnaik, J.
1. The petitioner was the grantee of an exclusive privilege for sale of foreign liquor ‘off shoping Jharsuguda town in respect of Shop No. 3. In this writ application he challenges the grant in favour of opp. party No. 5. in respect of five shops of Jharsuguda town inter alia, on the ground that the same is contrary to the Excise Policy of the Government in the year 1934-95 inasmuch as in the facts and circumstances of the present case the petitioner must be held to be an existing licensee in respect of shop No. 3. In accordance with the Excise Policy for the year 1994-95 as contained in Annexure-1 the Excise authorities are entitled to settle the existing foreign liquor ‘off shop’ with 10 per cent increase in consideration money. The petitioner’s case, in brief, is that he was the grantee of exclusive privilege in respect of shop No. 3 for the year 1991-92 and opp. party No. 5 was the grantee of exclusive privilege in respect of shop No. 1. Shop Nos. 2, 4 and 5 had been given to some others. In 1992-93 as all the five shops in a lot were given to some others, namely, Satish Mohanty and B. Shankar Rao, Opp. party No. 5 assailed the same in a writ petition which was registered as OJC No. 2093 of 1992 and in that proceeding grant of exclusive privilege of five shops in favour of Satish Mohanty and 3. Shankar Rao had been stayed and status quo was permitted to continue. By virtue of the status quo order the petitioner continued to have the business in respect of shop No. 3 and opp. party No. 1 continued to have the business in respect of shop Mo. 1 When the writ application came up for hearing on 3-2-1994 it was brought to the notice of the Court that the State Government had directed for re-auctioning of the privilege in question and nscessariiy, therefore, the so-called settlement in favour of Satish Mohanty and 8. Shankar Rao was given a go-bye. On the basis of the aforesaid statement made by the State Government the writ application was dismissed as being infructuous. though it was stated in the Court that the Government had directed for re-auction of the privileges. in question. But in fact during 1994-95 no re-auction had been conducted and on the other hand all the five shops had been settled with opp. party No 5 and opp. party No. 5 is continuing the business since April, 1994. Mr. Mohanty for the petitioner, therefore, contends that such settlement of the privileges in question in favour of opp. party No 5 is contrary to the Excise Policy given out by the Government for the year 1994-95 and also is contrary to the direction of re-auctioning.
2. Opp. party No. 6 has filed a counter affidavit stating therein that as opp. party Ho. 5 was the highest bidder in respect of each of the shops individually during the year I992-93 the Excise authorities have treated him to be an existing licensee and accordingly granted the privilege in his favour by 10 per cent enhancing the licence fess. He does not dispute the position that there had been no re-auction of the privileges in question though it was mentioned in the judgment of this Court in O.J.C. No. 2093/92 that the Government had directed for re-auction Of the privileges in question.
3. The State of Orissa has filed an affidavit stating therein that l.M.F.L. ‘if shop’ Nos. 1 to 5 of Jharsuguda and Rengali were not listed in the sale notice because no decision had been taken by the Government as to whether those shops would be settled in favour of existing privilege holders or in tender-cum-auction basis,
4. In view of the aforesaid assertions made in the counter affidavit, it is crystal clear that five shops at Jharsuguda and Rengati had not been put to re-auction but had been settled with opp. party No 5 on the purported exercise of power in accordance with trie Excise Policy of the Government in the year 1994-95 and on enhancement of 10 per cent of the licence fees than the previous years.
5. In view of the rival stands of the parties two questions really arise for our consideration:
(i) Whether it was open for the State Government to settle the privileges in question in favour of opp .party No. 5 in accordance with the Excise Policy enunciated for off shop Nos. 1 to 5 notwithstanding the statement made in the Court that the Government has directed for reduction:
(ii) Even if that policy has been applied whether the petitioner must be held to be an existing licensee and was. therefore. entitled to get the privilege of shop No. 3.
6. So far as the first question is concerned after hearing the learned counsel for the parties and the averments made in the counter affidavit of the State as well as earlier decision of this Court, we are of the considered opinion that it was not open for trie State Government to settle the shops in favour of any of the existing licensee in accordance with the Excise Policy particularly when the Government had directed for re-auction of the shops. Since there had been no re-suction admittedly the settlement was not in accordance with law. But as opp. party No. 5 has been granted the privilege in question and is operating the sama since April, 1934. we do not think it appropriate to cancel the said settlement and, therefore, we permit ops. party No. 5 to continue his business as a grantee of the exclusive privilege in question till the end of the Excise year, that is, till 31-3-1995.
7. So far as the second contention is concerned, we have no doubt in our mind that the petitioner must be held to be an existing licensee and, therefore, would be entitled to the grant of the privilege in question in accordance with the Excise Policy of 1994-95. We are unable to accept the stand of Mr. Das appearing for opp. party Mo. 5 that opp. party No. 5 having been the highest bidder in respect of all the five shops during the year 1992-93 must be held to be an existing licensee in respect of all the shops, since there had been no settlement: with opp. party No. 5 during the year 1992-33 and it is only by virtue of an order of status quo passed by this Court in the earlier writ application the licensees of the year 1931-92 continued to operate the licence. The petitioner who was admittedly the grantee of exclusive privilege for the years 1991-92 and continued the business also for the years 1992-93 and 1993-94 by virtue of the status quo order passed by this Court in earlier writ application, therefore, was entitled to get exclusive privilege in question in respect of shop No. 3 in view Excise Policy of 1994-95 which has been settled in favour of opp. party No. 5. While, therefore, we are not interfering with the grant of exclusive privilege in favour of opp. party No. 5 for off shop Nos. 1, 2, 4 and 5 as those have not been assailed before us, we quash the order of settlement so far as shop No. 3 is concerned and direct that the said shop be given to petitioner in accordance with the Excise Policy enunciated by enhancing the licence fee by way of 10 per cent per year, namely, the petitioner would be liable to pay 1.0 per cent enhancement for each year than what he was paying in 1991 -92. Since the privilege granted in favour of opp. party No. 5, so far as shop No. 3 is concerned, is being annulled. Opp. party No. 5 will not be liable to pay any fees hereafter. The appropriate authority may pass appropriate orders with regard to grant of exclusive privilege and licence in favour of the petitioner within a period of three weeks from the date of the receipt of our orders.
The writ application is disposed of accordingly. Requisites shall be filed in course of the day for issuance of writ on opp. parties 1 and 2. Writ shall be issued through a special messenger at the cost of the petitioner. Cost to be deposited in course of the day.
B.N. Patnaik, J.
I agree.