BIMALA PARIJA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed for quashing Annexure-1 by which the opposite party No. 3-Collector, Khurda has renewed the licence granted in favour of opposite party No. 5-Debendra Sahoo for the year 2010-11 for operation of IMFL OFF Shop at Trinath Bazar, P.S. Balianta under Jagannathpur Grama Panchayat in the district of Khurda, on the ground that the same has been granted in violation of the mandatory provisions laid down in the Excise Laws and against the greater interest of the general public of the locality.

(2.) Mr. R.K. Rath, learned Senior Advocate appearing for the Petitioners submits that the villagers of Jagannathpur G.P. are peace loving persons and they had protested the opening of IMFL OFF Shop in their locality at Trinath Bazar in the year 2006. The State Government considering the grievance of the villagers decided to shift the IMFL OFF Shop from Trinath Bazar to Pahala near N.H.5 vide Government order No. 121 dated 06.01.2007 (Annexure-2 Series). Thereafter, no licence was granted to any person till March, 2010 for opening of IMFL OFF Shop at Trinath Bazar. The impugned licence granted now to opposite party No. 5 under Annexure-1 to open the IMFL OFF Shop at Trinath Bazar is against public interest and the same has been granted illegally without complying with the procedure laid down in the Excise Laws. In spite of grant of impugned licence, opposite party No. 5 could not be able to open the shop at Trinath Bazar due to serious protest by the public. Therefore, opposite party No. 5 illegally ran the shop at different places other than Trinath Bazar which was also seriously objected by the local inhabitants. As a result of such protest, the shop was closed down by the Excise Department. Opposite party No. 5 is now contemplating to open the shop at Trinath Bazar on the strength of licence issued under Annexure-1. Trinath Bazar is a busy area as the Engineering Colleges and temples are located within the said locality. Therefore, no IMFL OFF Shop should be opened in such locality. In spite of several representations made by the local people protesting opening of IMFL OFF Shop in that locality, opposite party Nos. 2 and 3 ignoring the statutory provisions, granted licence under Annexure-1. Therefore, the licence granted under Annexure-1 to opposite party No. 5 should be quashed.

(3.) Learned Government Advocate referring to the counter affidavit dated 04.10.2010 filed on behalf of opposite party Nos. 3 and 4 submits that the Exclusive privilege for retail sale of IMFL OFF Shop at Trinath Bazar was not granted recently. The shop was initially sanctioned during the year 1997-98 and was settled by public auction. Annexure-1 attached to the writ petition is not a licence. It is the renewal endorsement for the year 2010-11. Therefore, the question of violating the mandatory provisions laid down in the Excise Law does not arise. The licence for opening of IMFL OFF Shop was not granted with reference to any particular plot. It was granted with reference to a particular locality free from any objections. The Exclusive privilege holder is responsible to find out a shop site free from objections by the local public in order to run the shop. In the past, since sale of IMFL in Trinath Bazar IMFL OFF Shop was deteriorated, on the request of Ex-E.P. holder Sri Debaraj Jena, Government of Orissa after observing the required formalities have allowed such shifting from Trinath Bazar to Pahal. After shifting the said IMFL OFF Shop during the year 2006-07, it was felt necessary to open the said shop again at Trinath Bazar during the year 2007-08 taking into consideration the feasibility of the said shop. Besides, in response to the office public notice No. 101/Ex dated 14.01.2008 inviting objections for opening of Trinath Bazar IMFL OFF Shop, no objection was received. Since no objection was received, the Government of Orissa in its letter No. 1742/Ex dated 20.03.2008 sanctioned opening of the shop in question at Trinath Bazar. Due to shortage of time to process for settlement of this shop at the fag end of the year 2007-08, the said shop could not be settled during the said financial year 2007-08 and was settled in favour of Smt. Urmila Sahu w.e.f. 17.03.2009 (for the part year 2008-09). Similarly, after following the required formalities like inviting public objection vide Public Notice No. 365/Ex. Dated 20.02.2008, the Exclusive privilege was granted to opposite party No. 5 with effect from 15.03.2010 for opening of IMFL OFF Shop at Trinath Bazar (for the part year 2009-10). Inspite of several attempts, since opposite party No. 5 failed to find out a suitable shop site free from objections, he was unable to open his shop at Trinath Bazar. He could not open his shop at any other place than the approved locality. The entire revenue village of Trinath Bazar was allowed to the E.P. holder to open his shop and the E.P. holder has to find out a suitable site free from objections of the local public in order to operate his shop. The restricted place like religious and educational institutions as specified in Rule 34 of the Orissa Excise Rules, 1965 are applicable only in case of On shops. However, at the time of opening of an IMFL OFF Shop, the said restricted distances are being taken into consideration for the greater interest of local public.