SARAT KUMAR PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to quash the order dated 03.10.2012 (Annexure-8) passed by opposite party No.4- Superintendent of Excise, Bolangir and allow the petitioner to operate his IMFL 'ON' Shop inside the premises of Hotel 'Arnapurna' in whose favour licence has been issued by the appropriate authority.

(2.) PETITIONER 's case in a nut-shell is that he is the owner of Hotel 'Arnapurna' situated over Plot No.483, Khata No.167/66, Madhiapali, which is situated at the outskirt of Bolangir town near the State High Way No.26. He had applied for a licence to open IMFL 'ON' Shop inside the premises of the said hotel. On the said application, a preliminary inquiry was conducted on 26.07.2011 by the Inspector of Excise, Sadar Charge, Bolangir. After submission of the inquiry report by the Inspector of Excise, opposite party No.4-Superintendent of Excise, Bloangir made a spot visit on 28.07.2011. As per the inquiry report, there is a petrol pump and one SC colony at a distance of 200 metres and 300 metres respectively and the State Highway No.26 is adjacent to the proposed site. After completion of preliminary inquiry, a public notice was issued by opposite party No.3- Collector, Bolangir vide letter No.959 dated 30.07.2011 inviting objection from the local people fixing the last date to 13.08.2011. Opposite party No.2- Excise Commissioner, Odisha vide his letter dated 22.10.2011 submitted his view to the Government that the proposed area is feasible for opening of 'ON' shop. Since there was certain violation of rule, the opposite party no.3-Collector, Bolangir looking into the requirement submitted a proposal in a special circumstance invoking relaxation clause of Rule 34 of Orissa Excise Rules, 1965 (for short, 'Rules, 1965'). On the basis of the report of the Collector, Bolangir, opposite party No.2-Excise Commissioner, Odisha has recommended the matter to the Government for grant of licence invoking relaxation clause. Considering the proposal of the Collector, inquiry report and the recommendation of opposite party No.2-Excise Commissioner, the Government in exercise of its power conferred under Rule 34 of the Rules, 1965 granted licence to the petitioner to open the IMFL 'ON' shop in the premises of Hotel 'Arnapurna' for the year 2011-12. Accordingly, the Superintendent of Excise vide letter dated 30.03.2012 directed the petitioner to deposit the proportionate licence fee, user charges and F.L. registration fees and further directed to apply for the renewal of said licence for the year 2012-13 on payment of licence fee and other fees as applicable. The petitioner deposited the required fees and licence was renewed for the year 2012-13 fixing monthly MGQ. After obtaining licence the petitioner opened his 'ON' shop inside the premises of Hotel 'Arnapurna' by spending a huge amount and carried on his business by lifting the quota as prescribed in the licence.

(3.) MR . U.C. Pattnaik, learned counsel appearing for the petitioner submitted that the impugned order under Annexure-8 is illegal, arbitrary and due to non-application of mind. After preliminary enquiry, public notice in Form 'A' under Annexure-1 was issued by the Collector, Bolangir inviting objection from the local people fixing the date to 13.08.2011, but no objection was received within the time stipulated. It is only after the licence was issued to the petitioner and after the shop opened, the objection was raised by a group of persons having vested interest. Under influence, opposite party Nos.3 and 4 directed for shifting of the shop in question. It was submitted that the petitioner has spent about Rs.50 lakhs for construction of the Bar. The authorities should not have entertained any objection after the time stipulated under Annexure-1 was over. Considering the proposal submitted by the Collector, Bolangir and recommendation of opposite party No.2, the Government has given relaxation provided under Rule 34 of the Rules, 1965 and granted permission to the petitioner to open the IMFL 'ON' shop. Opposite party No.4 should have taken permission of Government before passing the order for shifting of the shop in question. Thus, the impugned order under Annexure-8 is passed without jurisdiction and the same is liable to be quashed. It is further submitted that while W.P.(C) No.10488 of 2012 was taken up by this Court and order was passed for re-measurement, the opposite parties did not submit the fact that the licence was given by invoking relaxation of Rule-34 of the Rules, 1965. Had this fact been placed before this Court the order for re-assessment would not have been passed. The violation as found out was considered and invoking relaxation clause as stipulated in the Rules, the licence was granted in favour of the petitioner.