Ashok Kumar Majhi and Another. Vs. State of Orissa and ors. - Court Judgment

1.  In the present writ petition the petitioners herein claiming www 1 themselves to be the social workers and villagers of village Boden in the A District of Nuapada in the State of Orissa have prayed for quashing of i ' Notice No.248 dated 10.7.2010 issued by the Collector & Districtpetition and vacation of the interim orders in order to operate exclusive - privilege. I

2. Mr. Samal, learned counsel for the _petitioners placed reliance Q. On the judgment of this Court in the case of Sarat Kumar Sahu 8:; 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 V area", needs to be declared in the public notice. We are of the considered view that the aforesaid judgment would have no application V to the present case, since an amendment was made) on 29.03.2005 to li the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989, introducing Rule3Pi thereof. In (view of I such amendment to the aforesaid rules, which carrie 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 Honible Supreme. 2 ( Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 9 A 1984, in particular, paragraphs 38 and 39 thereof, in order to ' / substantiate his stand that, the "reasons" need to be recorded while ` V rejecting an objection made to opening of an IMFL Off shop.

3. In this regard, reliance was placed by the learned senior _ I 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 Government basing uponthe 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. t 'V I ' 14. In this connection it would be 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 tiled 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 p to 5 thousand per day. There is also no any kind of I.M.F.C. shops at Boden Block are and also no such I.M.F.L. shop near A about 30 Kms distance from Boden. There is also feasibility A for the opening of a I.M.F.L. shop at Boden for the interest of 4 _ _jj_ M, 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. I-le has

V ' submitted written statement before us stating that he has got no objection in case of opening of new I.M.F.L. shop there." '

4. Apart from the above, learned Additional Government Advocate alsoreferred to para-8 of the counter affidavit which 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 village Boden in the district of Nuapada and find no merit in the contention raised by _ 1 V the petitioners. A V A V

5. Therefore, we find no merit in the present writ petition and ' ' I ' accordingly, direct dismissal of the same and vacate all the interim orders. In view of the judgment passedtoday in this writ petition, all the I misc. cases stand disposed of. ' 4 , __,_ t __ ......, _,__,__ _ ,9*A49*l/2}Iy).j`[ g

V.Gopa1a Gowda, C.J. Iagree, I Q 4 r V

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ORISSA HIGH COURT, CUTTACK

% October,20lO /AKD

Magistrate, Nuapada for settlement of India Made Foreign Liquor Off i -` l shop (in short "IMFL Off shop") through lottery for the year 2010-11 at village Borden.

6. Mr. U.K.Samal, learned counsel for the petitioners submitted - 4 that a public notice was issued by the Superintendent of Excise of Nuapadaon 11.11.2009 inviting objections from public regarding the V 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 p 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 I . from 1.0472010 to 31.03.20ll. Pursuant to the aforesaid notice the O Chairman of Boden Panchayat Samiti, one Mr. Krushne.Singh Majhi has submitted an objection dated 2l.l 1.2009 under Annexure-4 stating l therein, that the village Boden is a backward tribal area where the local inhabitants are fully depending upon agriculture I and substantial e 1 number of them are living bel-ow the poverty line. Accordingly objection was made to the opening of IMFL Off shop, since it was likely to cause V p harm to the village people instead of their upliftment. It further V submitted that by a further letter dated 23.12.2009, the Chairman of Boden Panchayat Samiti submitted another objection reiterating his ` O if earlier objection and also. Stating that the Boden Panchayat Samiti and Boden Gram Panchayat had passed ,a resolution, to the effect that noforeign liquor shop should be opened at village Boden for the benefit of r the people. '

3. Mr. Sarnal 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 "loca1ity" and the "loca1 area" within i which the excise privilege was intended to be granted was to be exercised.

7. 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 la new IMFL Off shop at village Boden A 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 yeari It is submitted that the very I 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 pqgqqq .... - and and the decision to go ahead for grant of exclusive privilege by A 0 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.

8. Mr. Samal further contended that assuming for the sake I 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 A 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 direct.He further submits that there was no necessity for deciding to open an IMFL shop at Boden through "lottery", as. holding of V _ a lottery was not specifically permissible in tenns of the aforesaid 1 statutory stipulation under the Bihar & Orissa Excise Act, 1915. ' it 6. Mr. D.Panda, learned Additional Government Advocate appearing for the State responded to the aforesaid contentions by I 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.

9. Both, the learned counsel appearing for the State as well as Mr. Saniit Mohanty learned Senior Advocate appearing for the A gl G A 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 village Boden. Apart from the above, the learned counsel for the g - intervenor submitted that, the objection annexed as Annexure4 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 Sarniti 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 4 I that such IMFL Off shop retail licence may be granted. V I V

10. Mr. Panda, learned Addl. Government Advocate, placed W 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 paragraphs6 and 8. Relying on the same learned Additional Government Advocate submitted that, it is a fact that the IMFL Off ishop at Boden was not sanctioned for the year 2008-09 apart from three . other proposed new IMFL shops at Hatibandha, Dharambandha and I _, lldiyanbandh of the selfsame district for preservation of public peace. I I However, as per the policy decision of the Government for the year 2009-10, two numbers of new IMFL Off shops namely, Lakhna and in Boden were proposed in the district. It is further averred that the I 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 Annexure5 of the A Chairman of Boden Panchayat Samiti is concerned, learned Additional Government Advocate submitted that, the said objection having been admittedly sent after 26.ll.2009, i.e. last date for receipt of objection,_ C was not considered since it was received after the last date fixed -for I . - Receipt of objection. . Y

11. Mrl Panda further submitted that the intention, of the State A I Government behind granting permission for opening of an IMFL Off g 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 _ A q _ " _ legitimate business and to assure unadulterated product to the ' i consumers. l-le, therefore, submitted that the decision of the State Government to open an IMFL Off shop at Boden was not only limited toprotect the interest of revenue of the State but also to protect the n interest of public health and safety and therefore, objection raised A under Annexure4 was not justified. . L

12. 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 andOrissa Excise Act read L with Rules 3 & 4 of the Orissa Excise (Exclusive Privilege) Foreign - _ Liquor Rules, 1989. Learned counsel further submitted that by way of _ an P amendment in the year 2005 i.e. on 29.3.2005 the State _ .V Government amended the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989. and incorporated a new rule therein numbered as . Rule I 3-A in which it was stipulated: "Notwithstanding anything _ contained in rule3, the Collector of the district shall fix the local area of G the shop coterminous with the location of the shop." . 10.1i Mr. Mohanty, learned Sr. Advocate further submitted that the Q contention of the petitioners that grant of exclusive privilege through F F "lottery" was contrary to the requirements of Section 29 (2)(a) of the 7 7 ,p__ Bihar & Orissa Excise Act, 1915 is wholly misconceived. Its submitted G V- that the settlement for grant of rights of exclusive privilege by the State it Government was permissible not only through "auction" or by calling l upon "tenders" or otherwise as the State Government may, in the O interest of excise revenue, by general or special order, direct. Learned U counsel further submitted that pursuant to such authority being vested in the Government, the State of Orissa issued an "Order by the Revenue O & Excise Department on 23.4.l990" 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 4 about to the said order of the State Government of S Orissa vide `V amendment dated 28.4.2005 whereby, in specific terms and permission , A V was granted for settlement of IMFL Off shops "through a lot egg procedure". In terms of such procedure the State Government was duly V 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 l description inviting application for settlement of IMFL Off shop through A "lottery" and particularly Clause-3(vii) of the said. Form-Pr, in which it I has been noted: O A O l

I "The `State Government will not be responsible l for providing the place for location of shops and it would be responsibility of the privilege holder to arrange ' i suitable place and carry on the privilege granted to him. i A The place so arranged shall be free from objection from A the public." n V.

13. Mr. Mohanty further drew the attention of the Court to Form- ` B of the aforesaid amendment of the Government order and stated that, t the intervenor and fortyone 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 I such lottery and became entitled for grant of such exclusive privilege. Mr. Mohanty further submitted that, no objection against grant of K exclusive privilege by "lottery" ought to be entertained, since the same is A in consonance with the Government Order issued for such purposes A 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. 1990or to l the subsequent amendments including. the amendment dated A 28.042005. 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 C A n if 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.