Civil Appeal No. 12164-12166 of 2016 · Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P(C) NO. 7681 OF 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Shiv Prasad Bhagat ..… Petitioner -Versus- State of Odisha & Ors. ….. Opp. Parties For petitioner : Mr. P.K. Rath, Senior Advocate along with M/s. S. Rath, P. Nayak, S. Mohapatra, A. Behera, S.K. Behera, S. Das and P.K. Basantia, Advocates For opp. parties : Mr. P.P. Mohanty, Addl. Govt. Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of hearing: 10.08.2023 :: Date of judgment: 14.08.2023 DR. B.R. SARANGI,J. The petitioner, by means of this writ petition, seeks to quash the order dated 01.10.2022 under Annexure-1, by which the Government of Odisha in Excise Department has rejected the representation of the petitioner despite recommendation made by the // 2 // Commissioner of Excise for re-opening of IMFL “ON” shop in its existing site, and further to quash the orders dated 27.06.2018 and 01.01.2019 under Annexure-2 & Annexure-3 respectively passed by the Government, as well as the order dated 25.01.2019 under Annexure-4 passed by the Collector, Angul rejecting the representation of the petitioner regarding relocation of the shop, and further to issue direction to opposite party no.1/Government to grant permit for reopening of the “ON” shop in its original location, i.e., Mouza-Nisha of Nisha Gram Panchayat in the district of Angul within a stipulated period. 2. The factual matrix of the case, in brief, is that the petitioner is the licensee in respect of the IMFL “ON” (Restaurant) shop at Hotel Modern, Nisha, Angul situated over Plot No.1359/1850 and Khata No.205/420 of Mouza-Nisha, PS-Nisha in the district of Angul. But his “ON” shop was closed pursuant to decision of the Government in compliance of the judgment dated 15.12.2016 of the apex Court in State // 3 // of Tamilnadu v. K. Balu, (2017) 2 SCC 281, the operative part of which was to the following effect:- “29. We, accordingly, hereby direct and order as follows: 29.1. All States and Union Territories shall forthwith cease and desist from granting licenses for the sale of liquor along National and State highways.; 29.2. The prohibition contained in Para 29.1 above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; 29.3. The existing licenses which have already been renewed prior to the date of this order shall continue until the term of the license expires but no later than 1-4- 2017; 29.4. All signage and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both n National and State highways; 29.5 No shop for the sale of liquor shall be from a national or State (i) visible highways;(ii) directly accessible from a national or State highways; and (iii) situated within a distance of 500 m of the outer edge of the national or State highway or of a service lane along the highway. 29.6 All States and Union Territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the State Revenue and Home Departments. Responsibility shall be assigned, inter alia, to District Collector and Superintendents of police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. // 4 // 29.7 These directions issue under Article 142 of the Constitution.” In view of aforesaid judgment of the apex Court, all the States and the Union Territories were to forthwith cease and desist from granting licenses for the sale of liquor along National and State highways and such prohibition was to extend to and include stretches of such highways, which fall within the limits of a municipal corporation, city, town or local authority. Therefore, giving effect to the said judgment, the liquor shop in question was closed with effect from 01.04.2017. 2.1 The aforesaid judgment of the apex Court was reviewed from time to time. The apex Court, vide order dated 11.07.2017 passed in SLP (C) No.10243 of 2017 (Arrive Safe Society of Chandigarh v. The Union Territory of Chandigarh), reported in (2017) 7 SCR 369, granted some relaxations. Paragraph-7 of the said order reads as under:- “7.The purpose of the directions contained in the order dated 15 December 2016 is to deal with the sale of liquor along and in proximity of highways properly understood which provide connectivity between cities, towns and villages. The order does not // 5 // licensed establishments within prohibit municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court.” Again the apex Court, vide order dated 23.02.2018 passed in Civil Appeal Nos.12164-12166 of 2016 (The State of Tamil Nadu Rep. By Sec. and Ors. v. K. Balu & Anr.), reported in (2018) 1 SCR 665, clarified the matter. Paragraph-8 of the said order is quoted below: “8. Having regard to these directions, we are of the view that the state governments would not be precluded from determining whether the principle which has been laid down by this Court in the order dated 11 July 2017 in Arrive Safe Society (supra) should also apply to areas covered by local self governing bodies and statutory development authorities. We are inclined to allow the state governments to make this determination since it is a question of fact as to whether an area covered by a local to a self-governing body municipal agglomeration or is sufficiently developed as to warrant the application of the same principle. In deciding as to whether the principle which has been set down in the order dated 11 July 2017 should be extended to a local self-governing body (or statutory development authority) the state governments would take recourse to all relevant circumstances including the nature and extent of development in the area and the object underlying the direction prohibiting the sale of liquor on national and the state highways. The use of the expression ‘municipal areas’ in the order dated 11 July 2017 does not prevent the is proximate // 6 // from making that state governments determination and from taking appropriate decisions consistent with the object of the orders passed by this Court. We leave it open to individual licensees to submit their representations to the competent authorities in the state governments if they are so advised upon which appropriate decisions may be taken by the state governments. We have issued this general direction to obviate both litigation before the High Courts and repeated recourse to applications to this Court. 2.2 By virtue of clarification issued by the apex Court, the relaxation as is applicable to the municipal area is also applicable to the area coming within local self-governing bodies and statutory development authority areas subject to conditions; (i) whether the area covered by a local self government body is proximate to the municipal agglomeration; or (ii) sufficiently developed as to warrant application of the same principle. Further, the apex Court, vide order dated 23.02.2018 in Civil Appeal Nos.12164-12166 of 2016, specifically clarified that wherever the liquor shops are existing either in the close proximity to the municipal agglomeration or location sufficiently developed, the shop qualifies to be permitted to operate. The location in question is coming in the second category, i.e., the area, where the ‘ON’ shop was in // 7 // operation, is sufficiently developed, though it is located within the jurisdiction of local self-governing body as well as statutory government authority, i.e., Talcher- Angul-Meramundali Development Authority (TAMDA). So far as TAMDA is concerned, the location is coming within the statutory authority. The location of the ‘ON’ shop qualified to be within sufficiently developed area, because it is adjacent to M/s. Jindal Steel & Power Limited (JSPL) and other industrial units in and around the locations. Therefore, the petitioner submitted a representation to the Government on 15.03.2018 to permit reopening of the ‘ON’ shop, which was closed since 01.04.2017, and the Government, vide letter dated 11.05.2018, forwarded the said representation to the Collector, Angul for necessary enquiry. 2.3 Pursuant to letter dated 11.05.2018 issued by the Government, the Collector, Angul submitted a report on 31.05.2018 clearly stating therein that the location in question is coming within the area, which has been developed a lot with the establishment of JSPL and other giant factories. Taking into consideration the // 8 // scenario, the Government prepared a guideline dated 27.06.2018 fixing distance factor of 3 KMs from municipal area so as to warrant reopening and re- location of the shop. The said guideline is not applicable to the petitioner’s shop. 2.4 The apex Court, vide order dated 23.02.2018, has also provided two pre-requisites for the purpose of operation of the licensed establishment within local self- governing body area subject to the location is either in close proximity to municipal corporation area or the same is sufficiently developed. The petitioner qualifies the second criteria. Therefore, it is incumbent upon the Government to permit reopening of the shop in compliance of the orders passed by the apex Court. The petitioner’s shop is existing within the limit of local self- governing body area as well as statutory development authority area, namely, “TAMDA”. Therefore, the Government is required to consider the application for reopening of the “ON” shop of the petitioner in its original location where it was functioning before its closure. // 9 // 2.5 Challenging the inaction of the Government, earlier the petitioner had approached this Court by
Decision
filing W.P.(C) No.12053 of 2018, which was disposed of vide order dated 11.12.2018 with a direction to the Principal Secretary to the Government of Odisha, Department of Excise, to decide the representation of the petitioner by a speaking order in accordance with law within a period of four weeks from the date of receipt of the order with an observation that it would be open to the petitioner to challenge that decision by way of appropriate proceedings. The said order was also communicated to the Government and thereafter, the Government passed the order dated 01.01.2019 under Annexure-3 directing the Collector, Angul to consider the case limiting to 3 KMs criteria. Such limitations provided by the Government under Annexures-2 & 3 cannot be sustained in the eye of law. 2.6 Since there was a wrong quoting of prayer in W.P.(C) No.12053 of 2018, I.A. No.18180 of 2018 was filed for modification of the order dated 11.12.2018, which was also allowed vide order dated 08.01.2019. As // 10 // the petitioner’s “ON” shop was lying closed since 01.04.2017, he sustained heavy loss. In the meantime, the Government passed the order dated 01.10.2022, which is contrary to the ratio decided by the apex Court. But the petitioner, challenging the orders passed under Annexures-2, 3 and 4, approached this Court by filing W.P.(C) No.1254 of 2019 and during pendency of the said writ petition, the Commissioner of Excise, Odisha made recommendation to the Government for re-opening of the “ON” shop in its previous location, which is in terms of the orders dated 11.07.2017 and 23.02.2018 passed by the apex Court. The Commissioner of Excise, Odisha further mentioned that the impugned notification dated 27.06.2018 under Annexure-2 is not applicable in respect of petitioner’s IMFL “ON” shop. 2.7 The petitioner brought the aforesaid recommendation dated 21.05.2021 to the notice of this Court by filing an Interlocutory Application. This Court, vide order dated 07.07.2022, disposed of the said I.A. with a direction to the competent authority/ // 11 // Government to take an appropriate decision on the recommendation made by the Commissioner of Excise, Odisha. The said order was communicated to the Government and in compliance thereof, the Government passed the order dated 01.10.2022 under Annexure-1 rejecting the claim of the petitioner for reopening of his “ON” shop. Hence, this writ petition. 3. Mr. P.K. Rath, learned Senior Counsel along with Mr. A. Behera, learned counsel appearing for the petitioner vehemently contended that the rejection of the claim of the petitioner for renewal of his “ON” shop without giving any opportunity of hearing cannot be sustained in the eye of law. It is further contended that if the shop is permitted to be opened, it is in compliance of the order passed by the apex Court. While rejecting the claim of the petitioner, vide order dated 01.10.2022 under Annexure-1, the authority has not applied its mind in proper perspective. Therefore, the said order cannot be sustained in the eye of law. It is further contended that on careful reading of the direction of the apex Court, it appears that the local self government // 12 // body areas are divided into two parts, i.e, (i) the proximity of an area covered by self-same governing body to municipal agglomeration and (ii) area covered by the local self governing body is sufficiently developed as to application of the same principle. It is further contended that the Government in its wisdom has issued a set of executive instructions dated 27.06.2018 on the question of area covered under local self governing body which are in proximity with the municipal corporation and distance factor is provided to be 3 KMs. From the outer limit of the municipal corporation/municipality, provided the area is sufficiently developed as urban area. Therefore, the rejection of the claim of the petitioner has been done in contravention of the directions issued by the apex Court and clarified from time to time. Thereby, the orders so passed by the Government in Annexures-1, 2 & 3 and the Collector, Angul in Annexure-4 cannot be sustained in the eye of law and the same are liable to be quashed. 4. Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties // 13 // vehemently contended that the State Government, pursuant to the order dated 23.02.2018 passed by the apex Court in Civil Appeal Nos.12164-12166/2016, which relates to distance factor for operation of existing liquor shops along the highways, issued the orders dated 27.06.2018 and 01.01.2019 clarifying the criteria to be followed for the purpose. It is further contended that in compliance of the orders of the apex Court, the State Government took a consensus decision to allow the retail liquor outlets to operate along the highways within 3 KMs from the outer limit of the municipal corporation/municipalities provided the area is sufficiently developed as urban areas. Therefore, the State Government directed the Collectors to constitute one inspection committee for field verification and basing on the recommendation of the said committee, the Collectors of the districts shall dispose of the representations filed by the licensees following the parameters as enumerated in Excise Department order dated 27.06.2018. Thereby, it is contended that no illegality or irregularity has been committed by the State Government in rejecting the claim of the petitioner. // 14 // Therefore, the writ petition at the instance of the petitioner should be quashed. 5. This Court heard Mr. P.K. Rath, learned Senior Counsel along with Mr. A. Behera, learned counsel appearing for the petitioner and Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 6. On the basis of the pleadings available on record as well as the arguments advanced by learned counsel for the parties, there is no dispute that the petitioner was granted license to open IMFL “ON” shop adjacent to the National Highway, but because of the judgment of the apex Court, as mentioned above, the “ON” shop of the petitioner was closed on 01.04.2017. Subsequently, the apex Court clarified the said judgment, vide order dated 11.07.2017, and thereafter, on 23.02.2018, granted relaxation for opening of the // 15 // “ON” shop. In response to the same, the petitioner requested the Government to grant permission to open his shop taking into consideration the relaxation granted by the apex Court. But, without considering the same in proper perspective, it was contended that to implement the spirit and objectives of dictum of the apex Court, the Government fixed the restrictive parameters to 3 KMs from the outer limit of municipality/municipal corporation, vide its letter dated 27.06.2018, as a policy decision for the State of Odisha. Even if relaxation was granted, on the basis of the order of the Collector dated 25.01.2019, the proposal of the Commissioner of Excise, Odisha cannot be sustained in the eye of law, as the same is not in accordance with the Government order issued in this regard. Needless to say, the direction given by the apex Court was that the local self governing body areas are divided into two parts, i.e, (i) the proximity of an area covered by self-same governing body to municipal agglomeration and (ii) area covered by the local self governing body is sufficiently developed as to application of the same principle. Thereby, taking // 16 // advantage of such division of areas even if the petitioner applies for license that cannot be given as it is a policy decision of the Government and the same is in adherence to the orders passed by the apex Court. 7. Government has to run the Government and for that purpose it has to take policy decisions. The policy decisions are entirely within the domain of the Government. Necessarily the Government shall exercise its own discretion in this regard. But, it is a fundamental rule for the exercise of the discretionary power that discretion must brought to bear on every case-each one must be considered on its own merits and decided as the public interest requires at the time. In enforcing this rule the courts are underlining the difference between judicial and administrative processes. The legal rights of litigants are decided according to legal rules and precedents so that like cases are treated alike. 8. In State of Gujarat v. Arvind Kumar Tewari, (2012) 9 SCC 545, the apex Court held that // 17 // policy decision cannot ordinarily be subject-matter of judicial review. 9. In Chief Constable of the North Wales Police v. Evans, (1982) 2 All E.R. 141 (H.L), it is held that judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will under the guise of preventing the abuse of power, be itself guilty of usurping power. 10. In Union of India v. J.D. Suryavanshi, (2011) 13 SCC 167, the apex Court held that courts should not interfere in matters of policy or in the day- to-day functioning of any departments of Government or statutory bodies. Even within the executive, the need for separation of roles has been voiced. 11. In Raj Shikshan Prasarak Mandal v. State of Maharashtra, (2001) 10 SCC 75, the apex Court held that so long as the Government decision is not actuated with any malice or is not the outcome of an arbitrary or whimsical act, the same should not be interfered with by a court of law under Article 226. // 18 // 12. In Netai Bag v. State of West Bengal, (2000) 8 SCC 262, the apex Court held that the Government is entitled to make pragmatic adjustments and policy decision which may become necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision merely because it feels that another decision would have been fairer or wiser or more scientific or logical. 13 In Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, the apex Court held as follows: of the scope review judicial “The of governmental policy is now well defined. Courts do not and cannot act as appellate correctness, authorities examining suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.” provisions the of to // 19 // 14. In M.P. Gangadharan & Anr. Vs. State of Kerala & Ors., (2006) 6 SCC 162, the Supreme Court considered a question as to whether a Family Court can be shifted from one place to another within the area of its jurisdiction. The Court while discussing the scope of judicial review in such administrative functions, observed that the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straight-jacket formula. It must be considered keeping in view, the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. Referring to the recent development of law, the Court further observed that ‘We are not unmindful of the development of the law that from the doctrine of Wednesbury Unreasonableness, the court is leaning towards the doctrine of proportionality. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted’. // 20 // 15. In Maharashtra Land Development Corporation & Ors. Vs. State of Maharashtra & Anr., (2011) 15 SCC 616, the Supreme Court observed that the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. As per the Wednesbury principles, administrative action can be subject to judicial review on the grounds of illegality, irrationality or procedural impropriety. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. It was held by the Court that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. Any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. The test of proportionality is concerned with the way in which the decision maker // 21 // has ordered his priorities, i.e. the attribution of relative importance to the factors in the case. It is not so much the correctness of the decision that is called into question, but the method to reach the same. If an administrative action is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. It was further held that, the principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Similar view has also been taken by this Court in Sona Spun Pipe Industries Ltd. V. State of Odisha, MSME Department & Two Ors., 2020 (II) CLR // 22 // 902 : 2020 (III) ILR-CUT 364, where one of us (Dr. B.R. Sarangi, J.) was a Member. 16. Taking into consideration the aforesaid facts and circumstances of the case, if the Government, as a matter of principle, has taken a decision by framing a policy in conformity with the direction given by the apex Court, which has been revised from time to time, the claim made by the petitioner, that his shop has to be opened at the place where it was granted, even though it was closed on 01.04.2017, is not tenable. The policy decision of the Government, which is in adherence to the direction of the apex Court, is to allow the retail liquor outlet to operate the highways within 3 KMs outer limit of municipality/municipal corporation provided the areas is sufficiently developed as urban areas. Therefore, it was directed to consider the representation of the petitioner within the parameters of the policy decision as well as the direction of the apex Court. Applying the same, if the representation filed by the petitioner has been rejected, this Court is not inclined to interfere with the same. // 23 // 17. In the result, therefore, the writ petition merits no consideration and the same is dismissed. But, however, under the circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Orissa High Court, Cuttack The 14th August, 2023, Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 14-Aug-2023 17:28:10