RAJESH MALLICK Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two writ petitions having the same cause of action, were heard together and the following common judgment is passed.

(2.) W.P.(C) No.1557 of 2012 is filed by the petitioner, an unemployed Diploma Holder in Engineering who was an applicant for grant of new I.M.F.L. Restaurant "ON" shop licence in the name and style, "Green Red Restaurant" located at Bisinibar, Link Road, Cuttack over plot No.1067, Khata No.74 under Cuttack City, unit-33 as per the guidelines of the State Government contained in their letter No.6032 dated 05.10.2002 for the remaining period of 2011-2012.

(3.) The case of this petitioner is that he had submitted the application for the aforesaid purpose in the prescribed proforma which was received by the Superintendent of Excise, Cuttack (Opp. Party No. 4) on 10.05.2011 and was registered vide diary No.872 dated 11.05.2011. After receipt of the application, on 14.05.2011 the Inspector of Excise, Cuttack conducted a field visit and certified that he has personally visited the site, inquired into the objections and verified the original documents and submitted his report dated 16.05.2011 (Annexure-2). Under clause 3 (e) of the report, against the query, whether the proposed "ON" shop is located within at least 500 metres from a place of worship, recognized educational institution, established habitant especially of persons belonging to S.C./Labour Colony, mills and factories, petrol pumps, railway stations/yard/bus stands/agricultural farms or other places of pubic resort (exact distance of any such restricted institutions, place of worship etc. to be indicated), it was mentioned therein that there is a petrol pump at a distance of 100 metres in the opposite side of the road and Sophia Junior College is at a distance of 100 metres which is not disputed by the petitioner. On receipt of the report, public notice in the prescribed form-A was issued by the Collector Considering all the claims and objections received from various parties, the Collector, Cuttack (O.P.No.3) on being satisfied about the fulfillment of the eligibility criteria keeping in view the Government revenue, vide letter dated 18.6.2011 addressed to O.P. No.2, observed that (1) the proposed I.M.F.L. Restaurant "ON" shop over the site in question, is reported to be suitable for I.M.F.L. Restaurant "ON" shop, (2) the documents submitted by the applicant are found to be in order, (3) the proposed 'ON' shop will not affect the nearby shops, (4) opening of the proposed 'ON' ship will check the illegal sale of liquor in the area and nearby Dhabas, (5) opening of the shop will fill up the vacuum area, (6) Government will get revenue, (7) opening of the shop will not affect anybody, rather illicit sale in the area will be checked and the people who are drinking liquor in public place can also be checked and (8) the existence of educational institutions within the restrictive provisions under Rule-34 of O.E. Rules, 1965 can also be related under Rule-34 of Orissa Excise Rules, 1965 and recommended that the Government in Excise Department may be moved to sanction the shop in the proposed site. So far as existence of educational institution, i.e., Sophia Junior College is concerned, the Collector reported that the College is functioning on the 2nd floor of the building having entrance gate facing towards West having morning classes, whereas the proposed shop is facing towards South. It is the case of the petitioner that the building in which the Sophia Junior College is functioning, a nationalized bank is also functioning in the ground floor of the said building and a total confusion has been created as if the proposed shop and the Sophia Junior College are functioning in the same building. Because of this confusion, the State Government vide order dated 17.9.2011 decided that the application of the petitioner for grant of license shall not be taken up for the time being which was communicated by the Additional Secretary to the Government, Excise Department to the Commissioner of Excise vide letter dated 7.10.2011 (Annexure-5). In view of the aforesaid decision of the Government, the petitioner submitted a comprehensive representation dated 15.10.2011 (Annexure-6) to the Minister, Excise Department along with photo copies showing the location of Sophia Junior College and the proposed new I.M.F.L. "ON" shop. Considering the representation clarifying the location of the proposed shop in question and the Sophia Junior College, order was passed on 18.11.2011 for grant of license for opening of I.M.F.L. "ON" shop in question. The decision of the Government dated 18.11.2011 was not brought to the notice of the Court in the connected writ petition, i.e., W.P.(C) No.28588 of 2011 which was filed by an objector in the nature of Public Interest Litigation opposing opening of the proposed new I.M.F.L. "ON" shop by the petitioner in the first writ petition contending that the same is in violation of Rule 34 of the Orissa Excise Rules, 1965 as it comes within the distance of 100 metres between the educational institution and the petrol pump and only the decision of the Government vide letter dated 7.10.2011 (Annexure-5) rejecting the application on stating that the grant of license in favour of the writ petitioner in WPC No.1557 of 2012, shall not be taken up for the time being, was brought to the notice of this Court. Therefore, the said writ petition (W.P.(C) No.28588 of 2011) was dismissed vide order dated 25.11.2011. After lapse of nearly about two months from the date of dismissal of the said writ petition, W.P.(C) No.1557 of 2012 was filed by the petitioner-Rajesh Mallick on 25.1.2012 clarifying the facts stated above with the prayer for issuance of a writ of mandamus to the opposite party No.1 for grant of license in favour of the petitioner for opening of the proposed i M F.L. "ON" shop in the restaurant for the remaining period of 2011-12. It was urged that there has been inaction on the part of the State Government in communicating the order dated 18.11.2011 passed by the Minister of the Department to the petitioner, on his representation dated 15.10.2011. In view of the merit in the case of the petitioner-Rajesh Mallick, in W.P.(C) No.1557 of 2012, this Court issued notice to the opposite parties and felt the necessity to recall the order dated 25.11.2011 passed in W.P.(C) No.28588 of 2011 dismissing the writ petition for the reasons stated above. Therefore, W.P.(C) No.28588 of 2011 was listed along with W.P.(C) No.1557 of 2012 for the purpose of recalling the order dated 25.11.2011. After hearing learned counsel for the petitioners vide order passed today in the Public Interest Litigation petition, the order dated 25.11.2011 is recalled and the said writ petition is also heard along with the first writ petition on merits.