DUSASAN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner was the grantee of three foriegn liquor shops in the district of Keonjhar. In accordance with the policy decision of the Government, he claims to be entitled to the renewal of his licence for the year 1994 -95, but the licence not having been renewed under the pretended plea that a criminal case has been started against him during 1993 -94, the petitioner has approached this Court.

(2.) PURSUANT to notice issued by this Court, a return has been filed being sworn to by the Superintendent of Excise. It has been stated therein that no doubt the petitioner's licence should have been renewed for 1994 -96 in accordance with the Revenue Department order dated 23 -4 -1991 as amended by order dated 4 -1 -1992, but since the grantor has a right to refuse the grant of exclusive privilege without assigning any reason, no error can be found out in not renewing the licence. ft is further stated that in accordance with the Government letter dated 19 -3 -1994, if any licence is found to have been criminally prosecuted during 1993 -94, then such licensee would not be entitled for renewal. The aforesaid Government Circular has been annexed as Annexure -6 to the writ application. As the source of power for issuance of such Government Circular under Annexure -6 had not been indicated in the affidavit of the Superintendent of Excise, we had called upon the learned Addl. Government Advocate to file an affidavit of the State Government itself locating the power under which the aforesaid circular has been issued. Accordingly/ an afidavit has been filed on 16 -7 -1994 stating therein that Under Section 45 of the Bhihar and Orissa Excise Act, no person to whom any licence or exclusive privilege has been granted under the Act shall have any claim to the renewal of such licence or exclusive privilege, as the case may be. it has beers further stated that Rule 45 of the Orissa Excise Rules, 1965 clearly indicates that licensee for retail sale of intoxicants shall not ordinarily be granted to a former licence whose conduct has been found to be unsatisfactory, as stipulated in Rule 45(2)(b). Sirce a criminal case has been instituted egainst the petitioner, the competent authority thought it appropriate not to renew the licence.

(3.) THE next question that crops up for consideration is whether the impugned administrative circular under Annexure -6 could be issued by the State Government in exercise of certain powers conferred under the Act. On being asked, the learned Additional Government Advocate could not point out any specific provision authorising the State Government to issue such administrative circular. The trade in excisable articles is, no doubt, not a fundamental right and in view of the nature of the trade, the excise authorities as well as the Government may retain power to issue instructions from time to time in the matter of regulating the trade. But once having decided the Policy of Settlement for a particular year and having issued the order dated 4 -1 -1992 conferring as right on an existing exclusive privilege holder, the said right cannot be taken away by issuance of an administrative instruction as contained in Annexure 6. We do not find any authority on the part of the State Government to issue such administrative 'instructions.