M Z SAMAD Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was the grantee of an exclusive privilege for sale of foreign liquor 'off shoping Jharsuguda town in respect of Shop No. 3. In this writ application he challenges the grant in favour of opp. party No. 5. in respect of five shops of Jharsuguda town inter alia, on the ground that the same is contrary to the Excise Policy of the Government in the year 1934 -95 inasmuch as in the facts and circumstances of the present case the petitioner must be held to be an existing licensee in respect of shop No. 3. In accordance with the Excise Policy for the year 1994 -95 as contained in Annexure -1 the Excise authorities are entitled to settle the existing foreign liquor 'off shop' with 10 per cent increase in consideration money. The petitioner's case, in brief, is that he was the grantee of exclusive privilege in respect of shop No. 3 for the year 1991 -92 and opp. party No. 5 was the grantee of exclusive privilege in respect of shop No. 1. Shop Nos. 2, 4 and 5 had been given to some others. In 1992 -93 as all the five shops in a lot were given to some others, namely, Satish Mohanty and B. Shankar Rao, Opp. party No. 5 assailed the same in a writ petition which was registered as OJC No. 2093 of 1992 and in that proceeding grant of exclusive privilege of five shops in favour of Satish Mohanty and 3. Shankar Rao had been stayed and status quo was permitted to continue. By virtue of the status quo order the petitioner continued to have the business in respect of shop No. 3 and opp. party No. 1 continued to have the business in respect of shop Mo. 1 When the writ application came up for hearing on 3 -2 -1994 it was brought to the notice of the Court that the State Government had directed for re -auctioning of the privilege in question and nscessariiy, therefore, the so -called settlement in favour of Satish Mohanty and 8. Shankar Rao was given a go -bye. On the basis of the aforesaid statement made by the State Government the writ application was dismissed as being infructuous. though it was stated in the Court that the Government had directed for re -auction of the privileges. in question. But in fact during 1994 -95 no re -auction had been conducted and on the other hand all the five shops had been settled with opp. party No 5 and opp. party No. 5 is continuing the business since April, 1994. Mr. Mohanty for the petitioner, therefore, contends that such settlement of the privileges in question in favour of opp. party No 5 is contrary to the Excise Policy given out by the Government for the year 1994 -95 and also is contrary to the direction of re -auctioning.

(2.) OPP . party No. 6 has filed a counter affidavit stating therein that as opp. party Ho. 5 was the highest bidder in respect of each of the shops individually during the year I992 -93 the Excise authorities have treated him to be an existing licensee and accordingly granted the privilege in his favour by 10 per cent enhancing the licence fess. He does not dispute the position that there had been no re -auction of the privileges in question though it was mentioned in the judgment of this Court in O.J.C. No. 2093/92 that the Government had directed for re -auction Of the privileges in question.

(3.) IN view of the aforesaid assertions made in the counter affidavit, it is crystal clear that five shops at Jharsuguda and Rengati had not been put to re -auction but had been settled with opp. party No 5 on the purported exercise of power in accordance with trie Excise Policy of the Government in the year 1994 -95 and on enhancement of 10 per cent of the licence fees than the previous years.