Gandharba Behera Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 5 had not submitted vat clearance certificate or vat registration certificate as well as document showing his control or domain over the premises in which opposite party no. 3 as well as opposite party no. 5 filed counter-affidavit stating therein that he had submitted the required documents along with his application on 16.2.2009 as well as additional documents on 19.8.2009. inspector of excise conducted enquiry taking into account all the objections in course of which, as pointed out in his report at annexure-c/5 to the counter affidavit, none of the conditions restricting issue of grant of licence was found to be prevailing near the location of the proposed 'on' shop. 14. upon perusal of the averments made in the writ application, counter-affidavit & the application for intervention as well as annexures thereto & considering the submissions made by the learned counsel for the parties as well as learned counsel for the state, we are of the view that some of the contentions raised on behalf of the petitioner, more particularly the contention with regard to non-submission of required documents by opposite party no. there exists a strong underlying notion of public health & welfare when the matter comes to retention of the exclusive privilege and/or parting therewith either in whole or in. 5 forwarded by the commissioner of excise, orissa, cuttack to strict scrutiny to ensure compliance of provisions of the bihar & orissa excise act as well as rules framed & guidelines issued thereunder.b.k. patel, j.1. in this writ application, filed under articles 226 & 227 of the constitution of india, the petitioner seeks to quash public notice dated 30.06.2009 in form-a, copy of which is at annexure-4 to the writ application, issued by & recommendation dated 11.08.2009, copy of which is at annexure-7 to the writ application, of opposite party no. 3 collector, cuttack in connection with grant of exclusive privilege of imfl 'on' shop to opposite party no. 5 at 'tadka' restaurant situated over the plot no. 638/1147, under khata no. 535/207, khan nagar, (gouda sahi), ward no. 38 of cuttack municipal corporation.2. on consent, the matter was taken up for final disposal.3. as it appears, the state government in the excise department by their letter dated 05.10.2002, copy of which is at annexure-1 to the writ application, issued guidelines for processing applications for grant of exclusive privilege for 'on' shops. the guidelines were stated to have been issued in order to obviate deficiencies noticed in the proposals for grant of exclusive privilege received from different districts. guidelines provide that applications for 'on' shops shall be submitted in the prescribed form by persons having hotels/restaurants along with (i) evidence regarding ownership of the land & building (ii) copy of solvency certificate (iii) food licence (iv) sales tax clearance certificate (v) sales tax registration certificate & (vi) income tax clearance certificate. applications are required to be scrutinized by the superintendent of excise. in case the applications are complete in all respect, the superintendent of excise will obtain the order of the collector to entrust preliminary inquiry to be conducted by a responsible officer not below the rank of inspector of the excise. it has been categorically provided in the guidelines that all incomplete applications will be summarily rejected & the grounds of rejection shall be intimated to the applicants. officer entrusted with the inquiry shall conduct the preliminary inquiry keeping in view rules 34, 38 & 45 of the orissa excise rules, 1965 (for short, 'the rules') & submit his report in the prescribed format within one month from the date of receipt of the reference from the superintendent of excise. if after the field inquiry it is found that there is no violation of the statutory rules, the superintendent of excise shall invariably visit the spot & then submit the file to the collector to invite objections in form-b prescribed under rule 3 of the orissa excise (exclusive privilege) foreign liquor rules, 1989. under the proviso to rule 34 of the rules, government have the power to relax the application of the rule in certain cases & in those cases even if the proposed site violates clause (d) (e) & (f) of sub-rule (1) of rule 34, objections will be invited by issuing notice in form-a. however, in other cases of violation where the government do not have the power to relax the application of clauses (d), (b), (c) & (g) of sub-rule (1) of rule 34, & such conditions are reported to be prevailing in the field, no notice shall be issued in form-a inviting objection & the applications shall be filed. objections received in response to the public notice, which is required to be given wide publicity, within the prescribed period, would be inquired into by an officer not below the rank of an inspector of excise, who is required to submit his report in prescribed form to the superintendent of excise, who shall place the matter before the collector for obtaining his recommendations. while going through the report the collector is required to record his specific opinion as to whether it would be expedient to issue a licence in case of violation of clause (d), (e) & (f) of sub-rule (1) of rule 34 by relaxing the provisions under any special circumstances. special circumstances, if any, may also be reported to government for a decision. the collector shall forward the applications along with documents & inquiry report to the excise commissioner under intimation to the government within two months from the date of receipt of the application. the excise commissioner is required to go through the proposals & transmit the same to the government with his recommendations within two months from the date of receipt of the same from the collector.4. it appears that sub-rule (1) of rule 34 of the rules, was substituted by s.r.o. no. 250/2005 dated 25.05.2005. prior to substitution rule 34 of the rules, read as follows:34. licences for shops consumption of liquor, on vender's premises not to be granted at certain places- (1) no new shop shall be licensed for the consumption of liquor on the venders' premises;(a) in a market place; or(b) in the entrance to a market place, or(c) in close proximity to a bathing ghat; or(d) within at least three hundred metres from a highway;(e) within at least five hundred metres from a place of worship, recognized educational institution, established habitant especially of persons belonging to scheduled caste & labour colony, mills & factories, petrol pumps, railway stations/yard, bus stands, agricultural farms or other places of public resort; or(f) within at least one kilometer from industrial irrigation & other development project area; or(g) in the congested portion of a village;provided that the restriction on the maximum distance as mentioned under clauses (d), (e) & (f) may be relaxed by the state government in special circumstances.(2) so far as practicable, & 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 said of a main road or in any other prominent position that is likely to place temptation in their way.5. amended sub-rule (1) of rule 34 of the rules, reads as follows: '[(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, recognized educational institution, established habitat especially of persons belonging to scheduled castes & labour colony, mills & 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 & 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) & (e) may be relaxed by the state government in special circumstances.]6. rule 38 of the rules provides, inter alia, that licence for sale of foreign liquor for consumption on the vendor's premises may be granted only in places where there is a proved demand on the part of class of drinkers accustomed to foreign liquor. rule 45 prohibits grant of licences for retail sale of intoxicants to certain classes of persons, such as persons who have been convicted by the criminal court of a non-bailable offence, or to a former licensee who is in arrear to government or whose conduct has not been found to be satisfactory, etc.7. it is averred in the writ application that the opposite party no. 5 filed application for grant of 'on' shop licence, copy of which is at annexure-2 to the writ application for the year 2008-09, without enclosing documents required to be submitted along with the application. on receipt of the application, opposite party no. 4 superintendent of excise directed the inspector of excise to conduct inquiry & submit report within two days without verifying the application & without obtaining order of the opposite party no. 3 the collector. it is specifically averred that the opp. party no. 5 had not submitted vat clearance certificate or vat registration certificate as well as document showing his control or domain over the premises in which opposite party no. 5 intends to open the shop. the inspector of excise submitted his report on 28.5.2009, copy of which is at annexure-3 to the writ application, stating that there is no bathing ghat in close proximity to 'tadaka' hotel; that there are 16 number of 'on' shops & that the location of the proposed shop does not attract any of the restrictions contained under rule 34 of the rules. however, the proposed location is situated near kali mandir, jagannath temple, uttarayani temple, chakradhar baba math, a school named utkalamani smaraki bidyapith, a bathing ghat named tirnath ghat, & one petrol pump attracting restrictions under clauses (c) & (d) of sub-rule (1) of rule 34 of the rules. opposite party no. 4 forwarded enquiry report ext.3 to the collector falsely certifying therein that he also made spot visit & found the contents of ext.3 to be correct.8. learned counsel for the petitioner submitted that the prohibition of grant of licence for new 'on' shop in close proximity of a bathing ghat under clause (c) of sub-rule (1) of rule 34 of the rules cannot be relaxed by the state government under the proviso to sub-rule (1). as per the guidelines at annexure-1, no public notice in form-a can be issued by the collector in case of violation of any of the clauses under sub-rule (1) which cannot be relaxed by the state government. the collector illegally issued public notice at annexure-4 for the year 2009-10 though objections, copies of which are at annexure-6 series to the writ application, were filed by the petitioner & others before the opposite party no. 3 as well as opposite party no. 2 the commissioner of excise alleging violation of conditions under clauses (c) & (d) of sub-rule (1) of rule 34 of the rules. on the contrary, despite objections under annexure-6 series, opposite party no. 3 the collector has submitted letter dated 11.8.2009, copy of which is at annexure-7 to the writ application, to the opposite party no. 2 to move the state government for grant of licence in favour of the opposite party no. 5 for the remaining period 2009-10 by relaxing restrictions under rule 34.9. upon reference to the map of boundary line in ward no. 40 of cuttack municipal corporation at annexure-8 to the writ application, it was further argued by the learned counsel for the petitioner that though khannagar (gouda sahi) in which locality 'on' shop is proposed to be opened is situated in ward no. 40 of cuttack municipal corporation, the collector, cuttack has issued public notice inviting objections from the public residing within ward no. 38. referring to the letter of the opposite party no. 5 at annexure-9 it was pointed out by the learned counsel for the petitioner that documents required to be submitted by the opposite party no. 5 along with the application were submitted to the inspector of excise as late as on 19.8.2009. despite utter violation of conditions & non-compliance of requirements for grant of 'on' shop, opposite parties have conspired together to ensure grant of licence to opposite party no. 5 for the year 2009-10 though he had applied for grant of licence for the year 2008-09. eagerness of the opposite parties for grant of licence in favour of the opposite party no 5 is evident from the fact that on receipt of application for grant of licence on 16.2.2009, the superintendent of excise immediately on the same gate directed inspector of excise to inquire & report within two days without obtaining order of the collector.10. learned counsel for the petitioner also argued that arbitrary conduct of the opposite parties indicate that on the pretext of raising revenue they have flouted the provisions not only of the bihar & orissa excise act, 1985 & the rules framed & the guidelines issued thereunder, but also the directions under article 47 of the constitution of india.11. opposite party no. 5 filed counter-affidavit stating therein that he had submitted the required documents along with his application on 16.2.2009 as well as additional documents on 19.8.2009. inspector of excise conducted enquiry taking into account all the objections in course of which, as pointed out in his report at annexure-c/5 to the counter affidavit, none of the conditions restricting issue of grant of licence was found to be prevailing near the location of the proposed 'on' shop. in the meanwhile commissioner of excise by letter dated 26.8.2009, copy of which is at annexure-g/5 to the counter affidavit, has moved the government for grant of 'on' shop licence in favour of the opposite party no. 5.12. learned counsel for the opposite party no. 5 would submit that the petitioner & others flied objections with ulterior motive not to allow the opposite party no. 5 to open the proposed 'on' shop.13. it is noticed that as many as 17 persons of the locality have filed an application to be impleaded as interveners in the writ application stating therein that the averments made in the writ application may be treated as part of the application for intervention. copies of objection petitions filed against opening of proposed 'on' shop have been annexed to the intervention petition.14. upon perusal of the averments made in the writ application, counter-affidavit & the application for intervention as well as annexures thereto & considering the submissions made by the learned counsel for the parties as well as learned counsel for the state, we are of the view that some of the contentions raised on behalf of the petitioner, more particularly the contention with regard to non-submission of required documents by opposite party no. 5 along with the application may not be unfounded. the bihar & orissa excise act & the rules framed thereunder intend to fulfil objective of the principle contained under article 47 of the constitution of india. article 47 occurring in part-iv of the constitution of india laying down, the directive principles of state policy reads:the state shall regard the raising of the level of nutrition & the standard of living of its people & the improvement of public health as among its primary duties &, in particular, the state shall endeavour to bring about prohibition of the consumption except medicinal purposes of intoxicating drinks & of drugs which are injuries to health.15. as has been pointed out by the hon'ble apex court in ashok lenka v. rishi dikshit and ors. : air 2006 s.c. 2382, article 47 has an unique feature in the sense that the first part refers to public health whereas the second part specifically refers to prohibition of liquor. one important component of the directions under article 47 is regulation & control over the trade in intoxicating drinks so as to enable the state to curb or minimize, as far as possible, the consumption thereof. the state mayor may not prohibit manufacture, sale or consumption of liquor but it is vital that while parting with its exclusive privilege to deal with intoxicating liquor, the provisions of the act & the rules for which the same has been enacted must be strictly complied with. the state in making the rules & formulating policy decisions just be guided by public interest. the state parts with its exclusive privilege on certain statutory conditions such as payment of excise fee. when it lays down criteria for grant of licence, all endeavours should be made to plug all loopholes. 'the state has an extremely solemn obligation to fulfil in that behalf. all information supplied by the applicants for licences, thus, must undergo & satisfy 'strict scrutiny test'. the state should not treat its right of parting with its privileges only as a means of earning more & more revenue. it may certainly earn revenue but only upon fulfillment of its constitutional & statutory obligations. there exists a strong underlying notion of public health & welfare when the matter comes to retention of the exclusive privilege and/or parting therewith either in whole or in.'16. however, as most of the contentions raised on behalf of the petitioner raise factual disputes, & decision to grant licence to the petitioner is yet to be taken by the state government, without expressing any opinion regarding merits of the contentions raised on behalf of the parties, we dispose of the writ application with direction to the state government to subject the application of the opposite party no. 5 forwarded by the commissioner of excise, orissa, cuttack to strict scrutiny to ensure compliance of provisions of the bihar & orissa excise act as well as rules framed & guidelines issued thereunder. in considering the recommendation the state government shall take note of the fact that some of the conditions under rule 34 of the rules cannot be relaxed & other conditions, though relaxable, are prescribed to fulfil constitutional obligations of the state government.l. mohapatra, j.i agree.