RASHMI RANJAN NAYAK Vs. MANOJ KUMAR MEHER

JUDGEMENT

(1.) HEARD Mr. Kanungo, Learned Counsel for the Petitioner. I have also heard Mr. Mishra, Learned State Counsel. In spite of valid service of notice, the Opp. Party has not entered appearance.

(2.) THE Petitioner filed an application Under Section 45 -B of the Panchayat Samiti Act, 1959 (for short, 'the Act') before the Learned District Judge, Kalahandi, inter alia, alleging that the Opp. Party, who was elected as a member of the Panchayat Samiti of Junagarh Block from Chaichaiguda G.P., was disqualified to be elected as such as per the provision of Section 45(1)(o) of the Act. Specific allegation was made that the Opp. Party was holding a licence granted by the Superintendent of Excise, Kalahandi for dealing with foreign liquor in Foreign Liquor 'OFF' Shop at Dharmagarh. According to the Learned Counsel for the Petitioner, the same amounts to a subsisting contract made with the Government. The Learned District Judge, in the impugned order, while answering the said issue referring to the licence under Ext. A, came to the finding that the said licence was granted to the Opp. Party authorizing him to open a shop on renewal basis (I.M.F.L. "OFF" Shop No. 1), Dharmagarh under Dharmagarh Police Station in the district of Kalahandi, which is in force from 1.4.2009 till 31.3.2010 for a consideration amount of Rs. 45,000. The Learned Court found that the said licence relates to a shop outside the Junagarh Block & it has no concern with any work of Junagarh Panchayat Samiti nor there is any contract with the Junagarh Panchayat Samiti.

(3.) MR . Kanungo, Learned Counsel submits that the Supreme Court in the case of State of U.P. and Ors. v. Sheopat Rai and Ors., 1994 Supp. (1) SCC 8 has categorically held that such a licence is a" contract. The Supreme Court has referred to a Constitution Bench decision in the case of Jar Shankar v. Deputy Excise & Taxation Commissioner and Ors. : AIR 1975 SC 1121, wherein it has been held that there is no Fundamental Right to do trade or business in intoxicants. The State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale & possession. In all their manifestations, these rights are vested in the State & indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. The wider right to prohibit absolutely would include the narrower right to permit dealings in intoxicants on such terms of general application as the State deems expedient. Since rights in regard to intoxicants belong to the State, it is open to the Government to part with those rights for a consideration.