MAMITA CHOUDHURY Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ application, the petitioner -Mamita Choudhury has sought for quashing of the order dated 15.01.2008 passed by the Government of Orissa in the Excise Department, granting sanction for opening up of a IMFL Hotel 'ON' shop in favour of Smt. Hemalata Pattnaik (opposite party No.5) in Hotel Le Sancy at Rairangpur in the district of Mayurbhanj and the consequential grant of license in favour of opposite party No.5.

(2.) MR . P.K. Rath, learned counsel for the petitioner has submitted that the sanction of the State Government under Annexure -1 granting license to opposite party No.5 for opening of IMFL 'ON' shop in her hotel is illegal and relaxation of the restrictions under the provisions as contained under Rule 34(1)(d) of Orissa Excise Rules, 1965 is wholly without jurisdiction and/or is colourable exercise of authority. It is pleaded on behalf of the petitioner that the hotel where the IMFL ON shop is located is situated within 30 meters distance from the Government Boys' High School, closely located to Little Flower Nursery School and a temple is located within the close vicinity of the hotel. Therefore, the grant of sanction of license in favour of opposite party No.5 for opening of a IMFL ON shop by relaxing the requirements and by resorting the Proviso to Rule -34(1)(d) of the Orissa Excise Rules ought to be unlawful, illegal and liable to be quashed.

(3.) MR . Panda, learned Additional Government Advocate for the State on behalf of opposite party Nos.1 to 4 placing reliance on the counter affidavit filed by one Soumyendra Kumar Das, Superintendent of Excise, Mayurbhanj -Baripada, submitted that the license has been granted in favour of opposite party No.5 -Hotel by the State by following due procedure and norms prescribed under the Bihar and Orissa Excise Rules, 1965 and the complaint of non -compliance of any of the provisions of the said Rules is misconceived. He has further submitted that the petitioner had approached this Court on two earlier occasions i.e. in W.P.(C) No.14738 of 2005 and W.P.(C) No.8680 of 2007 which came to be disposed of by this Court vide orders dated 20.12.2005 and 24.09.2007 respectively. He further submitted that on receipt of the aforesaid orders of this Court, the Superintendent of Excise submitted his report for consideration by the Commissioner of Excise, Orissa. The Commissioner of Excise on consideration of the reports of the Range Inspector, Superintendent of Excise, the Sub -Collector and also taking into consideration the objections made (including that of the petitioner) and the recommendations of the local M.L.A., the Chairperson of Rairangpur N.A.C., rejected the objections raised and placed the matter before the Government for consideration and sanction of IMFL 'ON' shop license in favour of opposite party No.5 vide letter dated 17.10.2007. The Government considered the matter and after perusing all the aforesaid materials as well as the objections raised, granted sanction for issue of IMFL Hotel 'ON' shop license in favour of opposite party No.5, by relaxing the restrictions imposed under Rule -34(1)(d) of Orissa Excise Rules, 1965. It has further submitted that while the license was issued in favour of opposite party No.5, pursuant to the order of sanction granted by the State for the year 2007 -08, since then, till today the licensee is operating the shop in question and the license has been renewed from time to time. It has further submitted on behalf of the State that, the proximity of the Boys' High School and the Little Flower Nursery School was taken into consideration by the decision making authorities, who are vested with necessary powers of relaxation under the Proviso to Rule -34.