RAJ DAYAL SAHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) FOR the excise year 1.6.2001 to 31.3.2002, the petitioner was the licensee of two Indian Made Foreign Liquor 'Off shops. One was at Poda Astia and the other was at Bisoi, both in Mayurbhanj district. As per the excise policy for the year 2002 2003, the petitioner was entitled to a renewal of the licences for these shops. The policy also provided that all existing IMFL. 'Off shops were to be renewed without any change in the licence fee and in the minimum guaranteed quota. Thus, on the terms of that policy, the petitioner was entitled to a renewal of his licence regarding both the shops. Even otherwise, under Annexure B/3, the sale notice for the shops during the year in which the petitioner bid for the two shops, the exclusive privilege once granted was to continue for consecutive three years including the year in which it was granted, subject to certain terms and conditions. Of course, the Government was entitled to change its policy and the petitioner has not rested his case on the sale notice, but has relied only on the policy for the year 2002 2003 providing for renewal of licences for all existing IMFL. 'Off shops.

(2.) THE petitioner apparently thought that it would not be worthwhile running the IMFL. 'Off shop in Poda Astia, but that licence for IMFL, 'Off shop at Bisoi should be got renewed. He thereupon, applied for renewal of the licence for the excise year 2002 2003 only in respect of the 'Bisoi' shop along with the requisite challan. By the communication Annexure 6, he was informed by the Superintendent of Excise, Mayurbhanj that since he had sought a renewal of only one of the IMFL. 'Off shops i.e. at Bisoi, and had not duly applied for renewal of the licence for the IMFL. 'Off shop at Poda Astia, it could not be considered that there was a proper application for renewal. In the absence of a proper application for renewal of both the shops, he could not be granted a renewal for the shop at Bisoi only, in view of Rule 102(A) of the Board's Excise Rules and if he did not immediately apply for the 'Off shop at Poda Astia also, he would be liable for the loss that may be sustained by the Government. In the face of this stand adopted by the Superintendent of Excise, Mayurbhanj, the petitioner filed this writ petition seeking the issue of a writ of certiorari to quash the above intimation marked as Annexure 6 and for the issue of awrit of mandamus directing the opposite parties to renew the licence in respect of IMFL. 'Off shop at Bisoi for the year 2002 2003 without insisting on his applying for renewal of the licence for the shop at Poda Astia. According to the petitioner, Rule 102(A) relied on by the Superintendent of Excise, Mayurbhanj, was not a valid rule for the reason that it had never been published as contemplated by Section 92 of the Bihar and Orissa Excise Act and that it was beyond the rule making power of the Board of Revenue traceable to Section 90 of that Act. It is therefore, submitted by the petitioner that in view of the right that flows in his favour pursuant to the excise policy 2002 2003, he was entitled to a renewal of the licence for the Bisoi 'Off shop alone. The observations in the decision in Dusasan Behera v. State of Orissa and Ors., 1994 (II) OLR 613, on the impact of the excise policy on the right of the licensee, are relied upon.

(3.) AS can be seen, the rule provides that no licence shall be granted to a licensee who omits wilfully or otherwise, to renew his existing licence on terms and conditions generally prescribed for all to obtain fresh licences, on being successful in any settlement by tender cum auction or otherwise. It is therefore, the case of the opposite parties that the petitioner was a licensee of two IMFL 'Off shops, was bound to have his licences renewed for both the shops and in view of the fact that the petitioner had not sought a renewal of the licence of Poda Astia shop, the licence for the 'Bisoi' shop alone could not be renewed. Confronted with this situation, learned counsel for the petitioner contended that the rule was beyond the rule making power of the Board of Revenue, It is not disputed that the power of the Board to make rules is traceable to Section 90 of the Act. Section 90 provides that the Board may make rules for regulating the manufacture, supply or storage of any intoxicant and in particular, and without prejudice to the generality of this provision, also for regulating the authorised establishment referred to in that Section. Under Section 90(9) of the Act, the Board could make rules prescribing the restrictions under which or the conditions on which any licence may be granted and without prejudice to the generality of that provision, make rules also for regulating the transfer of licences. It is the submission of the learned counsel that Section 89 of the Act concerns power on the State Government to make rules to carry out the objects of the Act and under Section 89(2)(g), the State Government alone could make rules for prohibiting the grant to specified classes of persons of licences for the retail sale of any intoxicant. According to the counsel, the prohibitioncontained in Rule 102(A) of the Board's Excise Rules can only be traced to the power to make rules under Section 89(2)(g) of the Act and if so, the power to make such a rule rested with the State Government and not with the Board. Counsel sought to support his argument by reference to Rule 45 of the Orissa Excise Rules, 1965 indicating the category of persons to whom a licence for sale of intoxicants was not to be granted and submitted that the said Rule was in exercise of power under Section 89(2)(g) of the Act and the prohibition contained therein was not attracted to the case on hand and hence the petitioner could not be denied a renewal of his licence for the shop at Bisoi alone. Counsel also emphasized that under the excise policy 2002 2003, the petitioner was entitled to a renewal of his licence for the Bisoi shop and he could not be denied the same, by reference to Rule 102(A) of the Board's Excise Rules.