JUDGMENT
S.C. Parija, J.
1. This Writ Petition has been filed by the Petitioner challenging the letter dated 18.12.2006 of the State Government in the Excise Department, directing shifting of Pedagadi IMFL ‘OFF’ shop of Mayurbhanj district, Notice No. 378, dated 7.3.2007 issued by the Collector, Mayurbhanj, under Section 26-A of the Bihar & Orissa Excise Act (herein after referred to as the ‘Act’) and Public Notice in Form ‘A’ for grant of IMFL ‘OFF’ shop (shifting proposal) from Pedagadi Grama Panchayat to Nuasahi Grama Panchayat within the Kaptipada Block for the year 2007-08.
2. The contention of the Petitioner is that since he is a exiting licencee of IMFL ‘OFF’ shop at Kaptipada Block in the district of Mayurbhanj with monthly licence fee of Rs. 49,360/- for the year 2007-08, it is unreasonable to grant another IMFL ‘OFF’ shop licence at Nuasahi within the area of the Petitioner’s shop with monthly licence fee of Rs. 10 ,000/- during the subsistence of the Petitioner’s licence which is valid and operative till 31.3.2008. It is the plea of the Petitioner that in view of the policy decision of the State Government in paragraph 22 (B) of the Excise Policy for the year 2007-08, the consideration money of all IMFL ‘OFF’ shops should have been rationalized to bring all the shops into standardized category with uniform consideration money to avoid cut throat competition and therefore, the decision of the State Government to grant IMFL ‘OFF’ shop licence to Opposite Party No. 5 at Nuasahi with a monthly licence fee of Rs. 10,000/- is arbitrary and discriminatory and bound to affect the exiting shop of the Petitioner adversely.
3. The Petitioner further contends that the objections filed by the public and Sarpanch of the concerned Grama Panchayat, disapproving the proposal for shifting of Pedagadi IMFL ‘OFF’ shop to Nuasahi as per Notice dated 7.3.2007 issued under Section 26-A of the Act having not been considered by the State Government as required under Rule 4 of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 (herein after referred to as the ‘Rules’), the proposal for shifting and grant of licence by the Collector, Mayurbhanj, in favour of Opposite Party No. 5 is illegal and unsustainable in law.
4. In the counter affidavit filed by Opposite Parties 3 and 4, it has been stated that Opposite Party No. 5 had been granted with licence for operating an IMFL ‘OFF’ shop at village Pedagadi for the year 2005-06, but because of public agitation and law and order problem, said Opposite Party No. 5 was not able to operate the said shop. The Collector, Mayurbhanj had accordingly recommended for closure of the said shop on the ground of law and order problem for the year 2006-07, in view of continuous public agitation. After closure of the shop, the said Opposite Party No. 5 represented to the State Government expressing his grievance, for not being able to operate the shop, on the basis of which the State Government vide Order Dated 18.12.2006 directed that Pedagadi IMFL ‘OFF’ shop may be re-opened by way of shifting to a suitable unobjectionable site within the same Block, after observing all the formalities in the interest of the Government revenue and to check the illicit liquor trade in the locality.
4.1. It is further stated in the said counter affidavit of Opposite Parties 3 and 4 that it is the State Government which is the final authority to grant Exclusive Privilege for sale of liquor/intoxicants as per the provisions contained in Section 22 of the Act. Accordingly, in pursuant to the order of the State Government dated 18.12.2006 directing shifting of Pedagadi IMFL’OFF’ shop to a suitable unobjectionable site within the same Block, the Collector, Mayurbhanj issued notice dated 07.03.2007 under Section 26-A of the Act seeking consent/approval from the concerned Grama Panchayats. Similarly, Public Notice dated 07.03.2007 in Form ‘A’ was also issued by the Collector, Mayurbhanj for shifting of IMFL ‘OFF’ shop from Pedagadi Grama Panchayat to Nuasahi Grama Panchayat within the Kaptipada Block. After consideration of the objections, the State Government decided to grant Exclusive Privilege in favour of Opposite Party No. 5 for opening of IMFL ‘OFF’ shop at Nuasahi by way of shifting. It is further stated in the said counter affidavit that the distance of Kaptipada IMFL ‘OFF’ shop operated by the Petitioner is about 3 kilometers from the Nuasahi village, where the new shop is proposed to be opened by way of shifting and as the Exclusive Privilege area of IMFL ‘OFF’ shop is the shop premises itself, as per the notification of the State Government dated 29.03.2005, the grievance of the Petitioner in that regard is erroneous and misconceived.
5. So far as the fixation of consideration money, it has been clarified by the Opposite Parties 3 and 4 in their counter affidavit that the Petitioner’s shop is located in the Block headquarters of Kaptipada whereas the new shop of Opposite Party No. 5 is located at village Nuasahi which is interior rural area and therefore there is no illegality in fixation of consideration money in respect of the two shops, in view of their site and location, business viability and other aspects.
6. The Opposite Party No. 5 filed counter affidavit wherein it has been stated that Kaptipada is a Block which is consisting of 26 Grama Panchayats and Kaptipada itself is a Grama Panchayat out of such 26 Grama Panchayats. The area of operation of the Petitioner’s existing IMFL ‘OFF’ shop is Kaptipada Grama Panchayat whereas the new shop allotted by way of shifting in favour of Opposite Party No. 5 at Nuasahi is within Badakhaladi Grama Panchayat. Hence, the area of operation of the two shops are quite different and distinct and the Petitioner therefore has no scope for making any grievance. Further keeping in view the area of operation, the consideration money has been fixed in favour of new shop at Nuasahi and therefore there is no discrimination in such fixation of the consideration money.
7. From the letter dated 18.12.2006 (Annexure-6), it appears that the State Government, after careful consideration, have been pleased to order that the Pedagadi IMFL ‘OFF’ shop of Mayurbhanj district may be reopened by way of shifting to a suitable unobjectionable site within the same Block after observing all the formalities, in the interest of Government revenue and to check the illicit trade in the locality. Pursuant to such decision of the State Government, the Collector, Mayurbhanj in exercise of power under Section 26-A of the Act issued notice dated 07.03.2007 to the Badakhaladi/Jambani Grama Panchayats, seeking approval for shifting of Pedagadi IMFL ‘OFF’ shop to Nuasahi, as per Annexure-7 to the Writ Petition. The Collector, Mayurbhanj also issued Public Notice in Form ‘A’ dated 07.03.2007 (Annexure-8), inviting objections from any person residing within the local area with regard to the proposal of shifting of Pedagadi IMFL ‘OFF’ shop to Nuasahi Bazar under Badakhaladi Grama Panchayat. In the said Public Notice, the Exclusive Privilege area of the new shop was shown to be the shop area itself.
8. It appears that on consideration of the objections/representations, the State Government decided to shift the Pedagadi IMFL ‘OFF’ shop situated in Pedagadi Grama Panchayat to Nuasahi under Badakhaladi Grama Panchayat, after complying with all the formalities as required under the Act and the Rules. Section 26 of the Act is quoted herein below:
26-A. Restriction on grant of licence or exclusive privilege-(1) Notwithstanding anything contained in this Chapter or elsewhere in this Act, in the Scheduled Area-
(a) In no case there shall be granted under this Act any licence for manufacture, possession or sale, or any exclusive privilege for manufacture or sale, of any intoxicant, except with the prior approval of the concerned Grama Panchayat accorded with the concurrence of the Grama Sasan; and
(b) no licence or exclusive privilege which is granted in contravention of Clause (a) shall have any effect for the purposes of this Act.
(2) For the purposes of Clause (a) of Sub-section (1)(i) the authority competent to grant licence for manufacture, possession or sale, or exclusive privilege of manufacture or sale, of any intoxicant shall, before granting any such license or exclusive privilege, refer every proposal therefore to the concerned Grama Panchayat for its decision within a period of thirty days from the date of receipt of such reference; and
(ii) if the Grama Panchayat fails to communicate its decision within the period referred to in Clause (1), it shall be deemed that the concerned Grama Panchayat has accorded the required approval.
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10. In the instant case, no documents has been placed before this Court to show that the concerned Grama Panchayat, i.e., Badakhaladi Grama Panchayat of Kaptipada Block has objected to the proposal for shifting of Pedagadi IMFL ‘OFF’ shop to Nuasahi under the said Grama Panchayat. Further it is also not brought to our notice that the decision of the authority to shift the Pedagadi IMFL ‘OFF’ shop to Nuasahi has been taken without considering the objections/ representations received in that regard.
10. So far as the fixation of the consideration money in respect of the new shop at Nuasahi, by way of shifting, there is no material on record to show that such fixation of the consideration money of Rs. 10,000/- in respect of the said shop is improper or illegal. Paragraph 22 (B) of the Excise Policy for the year 2007-08, as per Annexure-11 to the Writ Petition, reads as follows:
The consideration Money of IMFL “OFF” shops will be rationalized to bring the shops into standardized category with uniform C. Money and the existing Consideration .Money shall mean the rationalized Consideration Money.
11. It has been clarified in the counter affidavit of Opposite Parties 3 and 4 that the consideration money in respect of the IMFL ‘OFF’ shop located at Nuasahi under-Badakhaladi Grama Panchayat by way of shifting has been fixed, keeping in view the location, business viability and other aspects. Moreover, it is a new shop to be opened and is located in a interior rural area, at a distance about 3 kilometers as compared to the existing shop of the Petitioner, which is located in the Block headquarters of Kaptipada. Hence no discrimination or illegality can be said to have been committed in fixation of the consideration money in respect of the new IMFL ‘OFF’ shop at Nuasahi.
12. Considering the facts as narrated above and the materials available on record, we find that there is no impropriety or illegality in the decision of the State Government in directing shifting of Pedagadi IMFL ‘OFF’ shop to Nuasahi under Badakhaladi Grama Panchayat. Moreover no materials having been placed before us to show that the said decision of the authorities suffers from infraction of any provisions of the Act and the Rules, so as to warrant interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution. Accordingly, we find no merit in the Writ Petition and the same is dismissed. There shall be no order as to costs.
I.M. Quddusi, J.
I agree
