A.K. Patnaik, J.
1. In this writ petition under Article 226 of the Constitution, the petitioner has challenged the sale notice No. 282 dated 25.3.2003 issued by the Collector and District Magistrate, Angul for manufacture and sale of O.S. Liquor in the premises mentioned in the district of Angul in Annexure-2 to the sale notice. The contention of the petitioner is that under the proviso to Sub-section (1) of Section 22 of the Bihar and Orissa Excise Act, 1915 (for short, 'the Act') public notice will have to be given of the intention to grant any exclusive privilege under Sub-section (1) of Section 22 inviting objections from persons residing within the area affected and such objections are to be considered by the authorities. The manner in which such public notice is to be given inviting objection has been specified in rule 3 of the Orissa Excise Exclusive Privilege Rules, 1970 and Form-A appended to the Sub-rule (3) of the Rules, 1970. In this case, no such public notice has been given as provided in the proviso to Sub-section (1) of Section 22 of the Act and Rule 3 of the Orissa Excise Exclusive Privilege Rules, 1970 before the impugned sale notice No. 282 dated 25.3.2003.
2. From the counter affidavit filed on behalf of the opp. parties 1, 2 and 3 and a subsequent affidavit filed by the District Magistrate and Collector, Angul on 20.8.2003 it appears that initially public notice No. 153 dated 5.2.2003 was issued inviting objections but thereafter the said public notice dated 5.3.2003 was cancelled and a revised public notice No. 194 dated 18.2.2003 was issued inviting objections to the proposal to grant exclusive privilege for manufacture and retail sale of Out-still liquor on vendors. A copy of the said revised public notice No. 194 dated 18.2.2003 has been annexed to the affidavit of the District Magistrate and Collector, Angul as Annexure-B.
3. Mr. J. M. Mohanty, learned counsel for the petitioner submitted that a reading of the said revised public notice No. 194 dated 18.2.2003 would show that the exact place or premises in which exclusive privilege is to be exercised has not been indicated in the public notice and this is contrary to the provisions of the proviso to Subsection (1) of Section 22 of the Act, Rule 3 of the Orissa Exclusive Privilege Rules, 1970 and Rule 34 of the Orissa Excise Rules, 1965. He submitted that on a reading of Rule 34 of the Orissa Excise Rules, 1965 it will be clear, that no new shop is to be granted licence for consumption of liquor on vendor premises in the specific places mentioned in Sub-rule (1) of Rule 34 of the Orissa Excise Rules, 1965.and therefore unless the exact place or premises in which the exclusive privilege is intended to be granted are mentioned in the public notice the members of the public will not be in a position to submit their objections to the proposed liquor shop. In support of his submission, Mr. Mohanty cited the judgments of this Court in Sarat Kumar Sahoo and Anr. v. Collector, Cuttack and Anr., 73 (1992) C.L.T. 834 and Liberation Education and Action for Development (LEAD), through its Secretary and Ors. v. State of Orissa and Ors., 2002 (II) OLR 568.
4. Mr. D. Das learned Additional Government Advocate appearing for the Opp. Parties 1 to 3 and Mr. N. Patra, learned counsel appearing for opp. parties 4 and 5, on the other hand, submitted that in the revised notice No. 194 dated 18.2.2003 inviting objections from the public, not only the local area but also the locality in which exclusive privilege is to be exercised have been indicated. According to Mr. Das and Mr. Patra, at the stage of inviting objections, it is not necessary and also not practically possible to indicate the exact place or premises in the locality in which the exclusive privilege was to operate as at that stage it is not known as to who will be granted the exclusive privilege. Mr. Das, and Mr. Patra, however, submitted that before grant of licence, the authorities would have to ensure that the exact place or premises in which the exclusive privilege operates is not any of the places or premises mentioned in Sub-rule (1) of Rule 34 of the Orissa Excise Rules, 1965.
5. We have perused the judgment of this Court in Sarat Kumar Sahoo and Anr. v. Collector, Cuttack and Anr. (supra) and we find on a reading of the said judgment that at the time of issuing public notice inviting objections in accordance with the proviso to Sub-section (1) of Section 22 of the Act and Rule 3 of the Orissa Exclusive Privilege Rules, 1970 the local areas and localities in the local area in which the exclusive privilege is to operate are to be mentioned. Paragraphs 5 and 6 of the said judgment of this Court in Sarat Kumar Sahoo and Anr. v. Collector, Cuttack and Anr. (supra) are quoted herein below :
'5. 'Locality' and 'local area' are essentially relative terms distinguishing places from other places but when they are both used in the same context, 'locality' would implicitly mean a smaller identified place other than the 'local area' which would include within itself the locality and embrace more areas and would be identified as the local area in distinction from still bigger area. The concept of 'local area' being clarified, as seen earlier, in the Form itself as to mean the limits of the police station or the grama panchayat, etc., the locality in respect of which the public notice is given in the Form is necessarily to be specific place where the exclusive privilege is to be exercised. One meaning of 'locality1 in the Oxford English Dictionary is 'the fact of being local, in the sense of belonging to a particular spot'. It is for such reason clear that when public notice is issued in Form 'A' inviting objections, it is to specify both the local area, such as the grama panchayat, municipal wards, etc., as also specify the particular spot at which the exclusive privilege of sale is to be carried on. The public notice is required, in Sub-rule (3) of Rule 3, to be specifically affixed to the locality in which the privilege is proposed to be granted. The other sub-rules of rules of Rule 3 require the public notice to be proclaimed by beat of drums or such other forms as are found convenient and an extract of it is to be sent to the Chairman of each Municipality, Chairman of each Notified Area Council or Chairman of each Panchayat Samiti reproducing so much of the aforesaid list as relates to their jurisdiction and an extract of the notice is also to be sent to the Commanding Officer of each of the Cantonments reproducing so much of the aforesaid list as relates to manufacture and/or retail sale of country liquor in the area within the limits of the Cantonment. The variable purpose for such wide circulation of the notice is apparently to being it to the notice of as much public as possible and their representatives so that objections can be made protesting the grant of privilege in the locality as well as in the local area.
6. This being the purpose and requirement of the public notice, it goes without showing that at the very notice stage itself the locality for operation of the exclusive privilege has to be specified. Unless the locality is so made known in the notice itself, no notice can be given since otherwise the requirement of inviting public objections becomes an useless formality. It hence is not the responsibility of the grantee of the privilege to select the locality at which the shop shall be opened and rather the privilege is to be granted only in respect of the predetermined local area and local place so that it is operated from no other place'.
In the aforesaid judgment, the word 'locality' has been described to be a smaller identified place than local area and not as the exact place or premises, in which the exclusive privilege proposed to be granted is to operate, and it has been held in the judgment that both the local area and locality have to be mentioned in the public notice in Form A so that objections can be made protesting the grant of privilege in the locality as well as the local area. The judgment of this Court in Sarat Kumar Sahoo and Anr. v. Collector, Cuttack and Anr. (supra) has been followed in the Liberation Education and Action for Development (LEAD), through its Secretary and Ors. v. State of Orissa and Ors. (supra) and it has been held therein that not only the local area but also the locality in which the exclusive privilege is to operate is to be mentioned in the public notice inviting objections.
7. Coming to the contention of Mr. Mohanty, learned counsel for the petitioner, that unless the exact place or premises in which the exclusive privilege is to operate has to be mentioned in the public notice inviting objections the members of the public will not be able to know as to whether the place in which exclusive privilege will operate is a prohibited place under Sub-rule (1) of Rule 34 of the Orissa Excise Rules, 1965, at the stage of issuing public notice inviting objections, it is not possible to know as to who will be granted exclusive privilege in the proposed safe and the exact place or premises in which the exclusive privilege will operate, though at this stage the local areas and localities in which the exclusive privilege will operate can be identified by the authorities. Moreover, on a plain reading of Sub-section (2) of Section 22 of the Act we find that no grantee of any privilege under Sub-section (1) can operate the exclusive privilege unless and until he has received a licence in that behalf from the Collector or the Excise Commissioner. Hence, even where a person is granted exclusive privilege under Sub-section (1) of Section 22 of the Act, unless the premises in which he intends to operate the exclusive privilege is beyond the places mentioned in Sub-rule (1) of Rule 34 of the Orissa Excise Rules, 1965, licence cannot be granted to such grantee of exclusive privilege in view of the provisions of Rule 34 of the Orissa Excise Rules, 1965 that licences for shops for consumption of liquor shall not be granted at the places mentioned therein. This position has also been considered by this Court in the case of Sarat Kumar Sahoo and Anr. v. Collector, Cuttack and Anr. (supra) in paragraph-8 which is quoted herein below :
'8. As the foregoing discussions would show it is primarily the duty of the licensing authority and the authorities who grant the exclusive privilege to know about the premises where the shop is to be located. Public objection is to be invited before grant of exclusive privilege with relation to the shop. For the purpose, the objections made are to be considered and decision taken. Besides whether objections are made or not, the authorities are themselves to consider and decide as to whether the premises is one where the shop can be allowed to operate keeping in view the guidelines of Rules 34 and 35 of the Orissa Excise Rules'.
Thus, in our considered opinion, while at the stage of inviting objections from the public by a public notice it is only necessary to indicate the local areas and the localities in which the exclusive privilege is to operate as provided in Rule 3 of the Orissa Exclusive Privilege Rules, 1970 and Form-A appended thereto, at such stage of inviting objection, it is not necessary to indicate the exact place or premises in which such exclusive privilege will operate but before granting licence to the grantee of exclusive privilege, the authorities wilt have to ensure that the exact place or premises in which the exclusive privilege is to operate does not fall in the places mentioned in Rule 34 of the Orissa Excise Rules, 1965.
8. From a reading of the revised public notice No. 194 dated 18.2.2003 we find that in the said notice while a larger area has been mentioned under the local column 'local area', a smaller identified place has been mentioned under the column 'locality at which the exclusive privilege is to be exercised'. To illustrate, item Nos. 11, 12, 15 and 16 of the said public notice No. 194 dated 18.2.2003 are extracted herein below :
'Kind of exclusive PrivilegeLocality at which the exclusive privilege is to be ExercisedLocal area
1 to 10XXXX11. BanarapalBanarapal (main)All the villages of Benda.-Nuahata, Tulasipa Budhapanka, Gadasantri & Gotamara G.Ps.
12. Hatatota
P. S. TalcherHatatota (main)
(i) Pathanasahi
(ii) T.T. P. S.Entire of Talcher Municipality and All the villages of Jagannathpur, Bantuk , Santhapada, Kankarei and Gurujanguli G.Ps.
13.XXXX14.XXXX15. Tentutoi
P.S. VikrampurTentuloi (main)All the villages of Tentuloi G.Ps. except Hirapur, F.C.I./Vikrampur & village Karadapali of Gobara G.P.
16. Gopalprasad
P.S. CollieryGopalprasad (main).
Kalamachhuin (branch)All the villages of Gopalprasad, Kumunda and Kalmachhuin G.Ps.17 to 34XXXX'
9. Moreover, we find from the objections of the local M.L.A. of Angul dated 28.2.2003 and 4.3.2003 annexed to the affidavit of the Collector filed on 20.8.2003 as Annexure-C that the M.L.A. has also understood that Banarpal is a smaller identified place or locality and not a large local area. Similarly, from the objections of the Chairman, Panchayat Samiti, Talcher, annexed to the affidavit of the Collector filed on 20.8.2003 as Annexure-D we find that she has understood Hatatota, Tentuloi and Gopal Prasad as smaller identified places or localities within the larger local areas. We are, thus, of the opinion that the public notice No. 194 dated 18.2.2003 is in accordance with the provisions of the proviso to Sub-rule (1) of Section 22 of the Act and Rule 3 of the Orissa Exclusive Privilege Rules, 1970. Nonetheless, in future, the authority should be more specific about the locality at which the exclusive privilege is to be exercised so that the members of the public who intend to submit their objections have a clear idea as to in which locality within the local area the exclusive privilege is to be exercised.
10. There is, therefore, no illegality in issuing the impugned sale notice and we accordingly dismiss the writ petition and vacate the interim order passed by this court on 7.4.2003 as modified on 28.7.2003.
PRADIP MOHANTY, J.
11. I agree.