TRINATH SAHOO Vs. GOVERNMENT OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner challenges the order of the State Government granting exclusive privilege in respect of foreign liquor 'Off' licence for shop No. 1 at City High School Road, Berhampur, in favour of opposite party No, 5 rejecting the Petitioner's application. The Petitioner asserts that he was the holder of the licence for sale of foreign liquor Off on vendors premises from 1972, till 31 -3 -1989 for the shop situated at City High School Road, Berhampur. For the financial year 1989 -90, he also made an application to the Superintendent of Excise, and along with him two other persons had made applications one of whom is opposite party No. 5. The Collector, Ganjam. (opposite party No. 3) did not recommend the name of the Petitioner on the ground that the Petitioner has a licence for sale of foreign liquor to be commenced in the hotel premises in Jajati Hotel at Bhubaneswar and, therefore, grant of Off licence to the Petitioner at Berhampur would be contravention of Rule 46 of the Orissa Excise Rules. Though the Collector did not recommend the name of the Petitioner yet had not, recommended any name at all. When the matter was placed before the Excise Commissioner, the Excise Commissioner, however, recommended that the Petitioner may be given licence for three months to avoid any loss of revenue and a final decision in that regard may be taken by the Government. The Excise Commissioner's recommendation has beep annexed as Annexure -I. The Petitioner, therefore, made a representation to the Minister, Excise, and while that representation was pending before the Minister, the Petitioner learnt that the State Government had granted the privilege in question in favour of opposite party No. 5. whereupon the Petitioner approached this Court.

(2.) IT is undisputed that the privilege in question has been granted in favour of opposite party No, 5, but no licence has been issued in his favour in view of the interim order of this Court dated. 12 -4 -1989.

(3.) THE learned Additional Government Advocate appearing on behalf of opposite parties 1 to 4 and Mr. Patnaik appearing for opposite party No. 5 repel the aforesaid contentions of Mr. Mohanty, the learned Counsel for the Petitioner, and according to them, the grant of exclusive privilege for retail sale of foreign liquor lies within the exclusive power of the State Government and not the Collector and that is why the Collector merely recommends, whereas the Government grants. The, learned Counsel further contend that in view of the plain and unambiguous language used in Rule 46(4) of the Orissa Excise Rules, the restriction must apply to person and not to premises, as otherwise the words "to a person" would be redundant. It is also urged by them that the licence in favour of Jajati Hotel is really a licence in favor of Trinath Sahu, the Petitioner, and, therefore, Rule 46(4) will apply in terms.