High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.21313 of 2012 In the matter of an application under Articles 226 and 227 of the Constitution of India. Sarat Kumar Patel, S/o. Late Ramprasad Patel, Vill: Madhiapali, P.O./PS- Bolangir Sadar, Dist : Bolangir -------- -Versus- … Petitioner State of Orissa and others … Opp. Parties For Petitioner : Mr. U.C. Pattnaik, M/s. A.K. Mohanty-B, S.R. Mohapatra & T.K. Mohapatra For Opp. Parties : Mr. D. Panda, Additional Government Advocate P R E S E N T: ---------- THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 13.09.2013 B.N. Mahapatra, J. This writ petition has been filed with a prayer to quash the order dated 03.10.2012 (Annexure-8) passed by opposite party No.4- Superintendent of Excise, Bolangir and allow the petitioner to operate his IMFL ‘ON’ Shop inside the premises of Hotel ‘Arnapurna’ in whose favour licence has been issued by the appropriate authority. 2. Petitioner’s case in a nut-shell is that he is the owner of Hotel ‘Arnapurna’ situated over Plot No.483, Khata No.167/66, Madhiapali, 2 which is situated at the outskirt of Bolangir town near the State High Way No.26. He had applied for a licence to open IMFL ‘ON’ Shop inside the premises of the said hotel. On the said application, a preliminary inquiry was conducted on 26.07.2011 by the Inspector of Excise, Sadar Charge, Bolangir. After submission of the inquiry report by the Inspector of Excise, opposite party No.4-Superintendent of Excise, Bloangir made a spot visit on 28.07.2011. As per the inquiry report, there is a petrol pump and one SC colony at a distance of 200 metres and 300 metres respectively and the State Highway No.26 is adjacent to the proposed site. After completion of preliminary inquiry, a public notice was issued by opposite party No.3- Collector, Bolangir vide letter No.959 dated 30.07.2011 inviting objection from the local people fixing the last date to 13.08.2011. Opposite party No.2- Excise Commissioner, Odisha vide his letter dated 22.10.2011 submitted his view to the Government that the proposed area is feasible for opening of ‘ON’ shop. Since there was certain violation of rule, the opposite party no.3-Collector, Bolangir looking into the requirement submitted a proposal in a special circumstance invoking relaxation clause of Rule 34 of Orissa Excise Rules, 1965 (for short, ‘Rules, 1965’). On the basis of the report of the Collector, Bolangir, opposite party No.2-Excise Commissioner, Odisha has recommended the matter to the Government for grant of licence invoking relaxation clause. Considering the proposal of the Collector, inquiry report and the recommendation of opposite party No.2-Excise Commissioner, the Government in exercise of its power conferred under 3 Rule 34 of the Rules, 1965 granted licence to the petitioner to open the IMFL ‘ON’ shop in the premises of Hotel ‘Arnapurna’ for the year 2011-12. Accordingly, the Superintendent of Excise vide letter dated 30.03.2012 directed the petitioner to deposit the proportionate licence fee, user charges and F.L. registration fees and further directed to apply for the renewal of said licence for the year 2012-13 on payment of licence fee and other fees as applicable. The petitioner deposited the required fees and licence was renewed for the year 2012-13 fixing monthly MGQ. After obtaining licence the petitioner opened his ‘ON’ shop inside the premises of Hotel ‘Arnapurna’ by spending a huge amount and carried on his business by lifting the quota as prescribed in the licence. 3. While continuing as such opposite party No.4, vide letter dated 18.05.2012 directed the petitioner for shifting the ‘ON’ Shop to an un- objectionable site in view of the representation given by some local people.
Legal Reasoning
Being aggrieved by the said order, the petitioner filed Writ Petition bearing W.P.(C) No.10488 of 2012 before this Court. During pendency of the said Writ Petition, opposite party No.4- Superintendent of Excise vide letter dated 19.06.2012 (Annexure-5) in exercise of power under Section 26 of Bihar and Orissa Excise Act, 1915 (for short, “Act,1915”) directed for temporary closure of the IMFL ‘ON’ Shop. Being aggrieved, the petitioner filed a Misc. Case and this Court vide order dated 27.06.2012 has stayed the order of closure. As per direction of this Court, opposite party No.4 vide letter dated 03.07.2012 (Annexure-6) allowed to reopen the shop. While the earlier Writ Petition was 4
Legal Reasoning
pending, one Raj Kumar Patel and Srikant Jal of village Madhiapali intervened in the writ petition and after hearing the parties this Court vide
Decision
order dated 07.08.2012 disposed of the said writ petition with a direction to opposite party No.4 to conduct a spot verification and measurement of the distance criteria for the purpose of finding out the exact distance of the shop in question from the School, National Highway, Panchayat Office and village etc. and then to take a decision accordingly. Pursuant to direction of this Court, a spot verification was undertaken on 07.09.2012 in presence of the petitioner and other villagers. At the time of measurement, they have taken the measurement without considering the natural barrier since there is a canal between the School, Village, Panchayat Office, Colony etc. One has to cross a bridge situated across the National Highway to reach the G.P. Office, School or village. Without considering the same the measurement was taken on air distance. Though the petitioner raised this objection at the time of measurement, the authority did not take note of the said objection. In view of the measurement made on 07.09.2012 and in pursuance of the order of this Court, the Collector, Bolangir has ordered for shifting of IMFL ‘ON’ Shop of the petitioner to an un-objectionable place. Accordingly, opposite party No.4 vide order dated 03.10.2012 (Annexure-8) directed the petitioner to find out a suitable and un-objectionable place. Hence, the present writ petition. 4. Mr. U.C. Pattnaik, learned counsel appearing for the petitioner submitted that the impugned order under Annexure-8 is illegal, arbitrary and due to non-application of mind. After preliminary enquiry, public 5 notice in Form ‘A’ under Annexure-1 was issued by the Collector, Bolangir inviting objection from the local people fixing the date to 13.08.2011, but no objection was received within the time stipulated. It is only after the licence was issued to the petitioner and after the shop opened, the objection was raised by a group of persons having vested interest. Under influence, opposite party Nos.3 and 4 directed for shifting of the shop in question. It was submitted that the petitioner has spent about Rs.50 lakhs for construction of the Bar. The authorities should not have entertained any objection after the time stipulated under Annexure-1 was over. Considering the proposal submitted by the Collector, Bolangir and recommendation of opposite party No.2, the Government has given relaxation provided under Rule 34 of the Rules, 1965 and granted permission to the petitioner to open the IMFL ‘ON’ shop. Opposite party No.4 should have taken permission of Government before passing the order for shifting of the shop in question. Thus, the impugned order under Annexure-8 is passed without jurisdiction and the same is liable to be quashed. It is further submitted that while W.P.(C) No.10488 of 2012 was taken up by this Court and order was passed for re-measurement, the opposite parties did not submit the fact that the licence was given by invoking relaxation of Rule-34 of the Rules, 1965. Had this fact been placed before this Court the order for re-assessment would not have been passed. The violation as found out was considered and invoking relaxation clause 6 as stipulated in the Rules, the licence was granted in favour of the petitioner. 5. It was further submitted that number of liquor shops are allowed to be opened at Bolangir town violating all the restrictions provided under the Rule by exercising the relaxation power provided under Rule 34 of the Rules, 1965, but the opposite parties in an arbitrary manner only directed the petitioner to shift the shop in question to an un-objectionable place. Some people of the locality are selling adulterated liquor in Dhaba, Hotel and Betel Shops since the liquor shops are situated at a distant place. Due to opening of the shop in question, their illegal selling of liquor was affected. Therefore, they made objection to the authorities for closure of the petitioner’s IMFL ‘ON’ shop. The hotel of the petitioner is situated in an isolated place by the side of National Highway, and the allegation made against the petitioner is totally false and fabricated. Running of ‘ON’ Shop inside the hotel of the petitioner is protected by the boundary wall and security. Hence it does not affect the public at large. 6. Mr. D. Panda, learned Additional Government Advocate appearing for the opposite party-State Authorities submitted that besides the petrol pump and one SC colony situated at a distance of 200 metres and 300 metres respectively from the site/shop of the petitioner, there is an educational institution which is at a distance of 400 metres. The hotel of the petitioner is situated by the side of National Highway. After opening of the shop in question at Hotel Arnapurna, the local people started agitation 7 and ‘Rasta Roko’ demanding closure of the shop as it is situated within the restricted distance from the petrol pump, village, National Highway and educational institution etc. Accordingly, the Inspector of Excise, Sadar, Bolangir was directed to conduct a spot verification and measurement of the distance of the restricted places. The inquiry report revealed that the said shop is situated at a distance of 400 metres from the existing educational institution instead of 800 metres as has been earlier reported. As the relaxation of distance from educational institution has not been requested to the Excise Commissioner and Government by opposite party No.3, the order for shifting of the shop was passed on 18.05.2012. Disciplinary action has already been initiated against the erring officer for submitting a factually erroneous report. 7. Mr. Panda further submitted that there was a criminal case pending against the petitioner before the S.D.J.M., Bolangir. Therefore, opposite party No.3 keeping in mind the popular resentment passed orders for temporary closure of the said shop. Challenging the said order, the petitioner had approached this Court in W.P.(C) No.10488 of 2012. Pursuant to direction of this Court, the measurement was taken and it was found that the shop in question is situated within the objectionable area. Therefore, the impugned order has been passed. It is further submitted that the spot verification was made in presence of the petitioner and the local people. It is not the fact that the measurement was taken up on air distance. The ground measurement was taken to ascertain the distance 8 and the same was recorded in presence of the petitioner and the local people on which they put their signatures. The order of shifting of the shop was made in compliance with the directions of this Court passed on 07.08.2012 in W.P.(c) No.10488 of 2012. Hence the same is not illegal and arbitrary. Concluding his argument, Mr. Panda prayed for dismissal of the writ petition. 8. On the rival contentions of the parties the only question that falls for consideration by this Court is whether the impugned order under Annexure-8 passed by opposite party No.4-Superintendent of Excise, Balangir directing the petitioner for shifting of his IMFL “ON” Shop functioning at Hotel Arnapurna, Madhiapali to another suitable and un- objectionable place within 30.10.2012 is legal and sustainable in law? 9. Undisputed facts are that the petitioner was allowed by the opposite party-authorities to run IMFL ‘ON’ Shop in Hotel ‘Arnapurna’. Subsequently, the local people started agitation demanding closure of the shop in question as the same is situated within the restricted distance from the petrol pump, village, National Highway and educational institution etc. Pursuant to such public demand, the Inspector of Excise, Sadar, Bolangir was directed to conduct spot verification and take measurement of distance of restricted places. On inquiry, it revealed that the shop in question is situated within 400 metres from the existing educational institution instead of 800 metres as has been earlier reported. As the relaxation of distance from educational institution has not been requested to the Excise 9 Commissioner and the Government by opp. party No.3, Government has not relaxed the distance criterion so far the educational institution is concerned. Therefore, opp. party No.3 passed the order for shifting of the shop in question on 18.05.2012. The petitioner had challenged the said order dated 18.5.2012 before this Court in W.P.(c) No.10488 of 2012 which was disposed of on 07.08.2012 by this Court directing opposite party No.4- Superintendent of Excise, Bolangir to conduct spot verification and measurement of the distance criteria for the purpose of finding out as to what is the exact distance of the shop in question from the School, National Highway, Panchayat Office, village etc. in presence of the petitioner and the local people. Opp. party no.4 was also asked to find out as to whether there is pendency of criminal case against the petitioner and if it is found that the shop in question is situated within the objectionable area, reasonable opportunity shall be given to the petitioner for shifting the shop in question to an un-objectionable place. Accordingly, opposite party no.4 carried out the direction of this Court and on measurement it was found that the shop in question is situated within the restricted area of an educational institution (school) for which relaxation has not been requested for by opposite party No.3 to the Government. Therefore, the impugned order dated 03.10.2012 under Annexure-8 was issued directing the petitioner to shift the shop in question to an un-objectionable area within 30 days. 10 10. It is also not in dispute that such measurement was done physically in presence of the petitioner and the local people. In view of the categorical stand of opposite parties that ground measurement was taken to ascertain the distance and recorded in presence of the petitioner and local people on which they put their signature, the petitioner’s stand that the measurement was taken on air distance is not acceptable. Otherwise also, the stand taken by the petitioner that the measurement was on air distance does not merit consideration, since the distance measurement as provided in various statutes is commonly reckoned “As crow flight”. 11. Further, the impugned order for shifting of the IMFL ‘ON’ shop was passed in pursuance of the direction of this Court dated 07.08.2012 passed in W.P.(C) No.10488 of 2012. It may be noted that in the preliminary report, distance of the shop in question was shown as 800 metres. However, the subsequent inquiry report reveals that the said shop is situated within 400 metres away from the existing education institution. Disciplinary action has been initiated against the erring officer for submitting the factually erroneous report. Since the order of this Court dated 07.08.2012 passed in W.P.(C) No.10488 of 2012 has not been challenged by the petitioner in any higher Forum, the same has attained finality. 12. The impugned order under Annexure-8 having been passed pursuant to direction of this Court as stated above, we do not find any 11 infirmity or illegality in the impugned order passed under Annexure-8 warranting interference of this Court. 13. In view of the above, we are of the considered opinion that the impugned order under Annexure-8 passed by opposite party No.4- Superintendent of Excise, Bloangir directing the petitioner for shifting of his IMFL ‘ON’ shop functioning at Hotel “Arnapurna”, Madhiapali to another suitable and un-objectionable place is legal and justifiable in law. 14. In the result, the writ petition is dismissed. No order as to costs. I.Mahanty J. I agree. …………………………… B.N. Mahapatra,J. I.Mahanty,J. ……………………………….. Orissa High Court, Cuttack The 13th September, 2013/ss/skj/ssd