PRAWIN KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed for quashing order No. 1843 dated 03.08.2010 (Annexure -28) passed by opposite party No. 3 -Collector & District Magistrate, Keonjhar by which he directed renewal of licence in favour of opposite party No. 5 -Rajesh Kumar Sahoo for the remaining period of 2010 -11 subject to payment of VAT dues of Rs. 36,28,770/ -within a period of three months from the date of his order and on production of VAT clearance certificate before the Collector/Superintendent of Excise, Keonjhar and on regular payment of Excise/VAT dues in time. Further prayer of the Petitioner is for issue of a writ of mandamus commanding opposite party Nos. 1 to 4 -Excise Authorities and the Collector to renew the licence of ten O.S. Liquor Shops of Barbil Lot in favour of the Petitioner exclusively subject to clearance of such dues and fulfilling all the formalities within a particular time.

(2.) CASE of the Petitioner, in nutshell, is that the Petitioner was initially granted licence of exclusive privilege of ten O.S. Liquor shops for the year 2004 -05. Subsequently, he entered into a partnership agreement to deal with the said shops in the name and style "M/s. Prawin Kumar and Rajesh Kumar" and on 01.05.2005 the said partnership firm was registered by the Inspector General of Registration, Orissa, Cuttack. When the Petitioner applied for renewal of licence in respect of the aforesaid 10 O.S. liquor Shops in his favour for the year 2008 -09, opposite party No. 5 informed the Excise Department that he was running the business as the Managing Partner of the firm by virtue of partnership deed, so his name should be included in the renewal licence. Notice was issued to the Petitioner to show cause as to why the Government should not be moved to cancel or suspend his licence. The Petitioner challenged the said show cause notice issued by opposite party No. 3 -Collector and District Magistrate, Kenonjhar in the writ petition bearing W.P.(C) No. 5311 of 2008 before this Court. In the said writ petition, it was disclosed that the Collector vide order dated 31.03.2008 included the name of opposite party No. 5 -Rajesh Kumar Sahoo and Sri Satyajit Singh in the renewal of licence for the year 2008 -09 provisionally subject to confirmation by the State Government. The State Government, thereafter, also confirmed the same vide its order dated 26.05.2008. In view of the same, this Court disposed of the aforesaid writ petition on 18.02.2009 holding that the Collector's order so also confirmation order of the State Government in renewing the licence in the name of all the partners, i.e., the Petitioner -Prawin Kumar, opposite party No. 5 -Rajesh Kumar Sahoo and Satyajit Singh for the year 2008 -09 is justified. While confirming the provisional renewal of licence granted by the Collector vide order dated 31.03.2008, opposite party No. 2 -Commissioner of Excise, suggested for fresh auction of the said shops and till then the renewal of licence in respect of the shops in question in the joint names of three partners was allowed. Thereafter, also in the year 2009 -10 the aforesaid 10 O.S. liquor Shops were renewed in the names of the three partners. However, under Annexure -28, the Collector, Keonjhar directed for renewal of licence in the name of opposite party No. 5 -Rajesh Kumar Sahoo alone for the remaining period 2010 -11. Hence, the present writ petition.

(3.) MR . Mohanty, learned Counsel for the Petitioner placing reliance upon Rule 102(A) of the Board's Excise Rules, 1965 (for short, "Board's Excise Rules"), submitted that the opposite party department has wrongly entertained the renewal application in respect of eight shops exclusively held by opposite party No. 5 -Rajesh Kumar Sahoo as there was outstanding dues against ten O.S. liquor shops in question which stood jointly in the names of three partners including opposite party No. 5. This fact was brought to the notice of the Superintendent of Excise by the Petitioner. The Petitioner vide letter dated 30.03.2010 expressed his willingness to clear up all the dues outstanding against the said ten shops provided licence would be renewed exclusively in his name. In spite of that the Superintendent of Excise did not issue necessary challan in the name of the Petitioner and issued letter No. 549 dated 31.03.2010 (Annexure -13) to the Petitioner directing him to clear up the sales tax dues and to enclose the challans of four months advance consideration money and other fees and also to furnish local surety and adequate solvency. In the said letter, the Petitioner was intimated that the licences of the aforesaid lot have been provisionally renewed in favour of the other partner Sri Rajesh Kumar Sahoo for a period of two months without prejudice to the claim of the Petitioner and the contention for inclusion of his name in the lot subject to compliance to the aforesaid conditions and without prejudice to the Government revenue. Vide application dated 31.03.2010 (Annexure -14), the Petitioner objected to the issuance of licence in the name of opposite party No. 5 -Rajesh Kumar Sahoo in respect of 10 shops in question before the Collector, Keonjhar. Sri Sahoo on the basis of clearance certificate in respect of other shops in Nuapada district managed to get the provisional certificate for ten O.S. liquor shops in question for a period of 2 months fraudulently. Licence for the year 2008 -09 in respect of 10 shops in question was issued by opposite party -department in favour of three partners which was upheld by this Court. In the worst case, the licence can only be granted in the name of the Petitioner who was issued with the original licence. In this regard, the Petitioner sent a representation dated 04.05.2010 by registered post with A.D. to the Government as well as Excise Commissioner, Orissa. Since the Petitioner's claim was not considered by opposite party -department, the Petitioner approached this Court in W.P.(C) No. 8572 of 2010 and this Court by order dated 08.07.2010 disposed of the same by quashing the provisional renewal of licence granted in favour of opposite party No. 5 -Rajesh Kumar Sahoo and remitted the matter back to the Collector, Keonjhar for consideration afresh. Pursuant to the direction of this Court in W.P.(C) No. 8572 of 2010, the Petitioner appeared before opposite party No. 3 -Collector & District Magistrate, Keonjhar through his counsel and filed a written submission (Annexure -23). Before the Collector, the Petitioner offered solvency of Rs. 35,00,000/ -(rupees thirty -five lakhs) as against requirement of Rs. 30,00,000/ -(rupees thirty lakhs) but the same was not accepted by the Collector on the ground that after the order is passed it may be required to be furnished. So far as the bank guarantee is concerned, the Petitioner's bank guarantee of Rs. 8,00,000/ -(rupees eight lakhs) was already with the Collector. However, opposite party No. 3 -the Collector, illegally passed the impugned order under Annexure -28 directing that the licence in respect of 10 O.S. liquor shops may be renewed in favour of opposite party No. 5 -Rajesh Kumar Sahoo for the remaining period of 2010 -11. The impugned order suffers from various irregularities of fact and law inasmuch as the said order has been passed without proper application of mind. The direction of the Collector is contrary to the provisions of Rules 45(2)(a) and 45(3) of the Orissa Excise Rules and also Rule 102(A) of the Board's Excise Rules. In case for any reason, if the licence could not be renewed in the name of the partnership firm, the same should have been settled by a fresh auction.