BHIKARI CHARAN NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed for quashing of the impugned show -cause notice dated 15.3.2008 (Annexure -3) issued by the Superintendent of Excise, Keonjhar with a further prayer to direct the Collector, Keonjhar to open the IMFL 'OFF' shop at Patna and Pandapada by renewing the licenses for the year 2008 -09.

(2.) THE brief facts of the case, as mentioned in the writ petition, are that the Petitioner was issued with licenses by the Collector, Keonjhar in respect of Patna an Pandapada IMFL 'OFF' shops with monthly license fee of Rs. 20,000/ - and Rs. 10,000/ - respectively in the month of September, 2005 for the year 2005 -06. Due to ill health of the Petitioner, he executed General Power of Attorney in favour of Bibekananda Nayak on 5. 11. 2005 to manage the Patna IMFL 'OFF' shop and the said Power of Attorney was approved by the excise authorities. Thereafter, the licenses were renewed for the year 2006 -07 with the existing license fees at that time till 31.3.2008. On 13.3.2008, in the morning hours, the excise authorities raided the house of OM Prakash Gupta, the Power of Attorney holder of the Petitioner and found contraband article from his house. Thereafter, the excise authorities raided the shop of the Petitioner also but did not find any contraband article from shop premises, but without assigning any reason closed the shop on 13.3.2008. Thereafter, the Superintendent of Excise, Keonjhar on 15.3.2008 issued the impugned notice calling upon the Petitioner to show -cause as who why the license in respect of IMFL 'OFF' shop at Patna and Pandapada in the district of Keonjhar shall not be cancelled for the remaining period of 2007 -08 on the following ground:

(3.) A counter affidavit has been filed by the Superintendent of Excise, Keonjhar (o.p. 4) in which it has been stated Section 23 of Bihar and Orissa Excise Act coupled with the Government Notification No. 43571 dated 25.8.1998 clearly says that no agreement either through a power of attorney or anything is valid unless the same is approved by the Collector of the district concerned. In the instant case, the Petitioner has suo motu executed the power of attorney in favour of Om Prakash Agarwal without any approval of the Collector and he has never prayed before the excise authority/Collector for acceptance of the said power of attorney. In paragraph -7 of the counter affidavit, it has been stated that the Petitioner operated the 'OFF' shops from September, 2005 till January, 2008 by paying the excise fee as warranted under the license and has made a power of authority in favour of Bibekananda Nayak on 15.11.2007. When raid was made -, a document was found and seized which shows that Om Prakash Gupta was managing the shop on behalf of the Petitioner.