Jaydebananda Devgoswami ….. State of Odisha & Ors v. …
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 15950 of 2023 Jaydebananda Devgoswami ….. State of Odisha & Ors. Vs. ….. Petitioner Mr. B.P. Das, Advocate Opposite Parties Mr. L. Samantaray, AGA (O.Ps.1-4) Mr. P.K. Rath, Advocate (Intervener) CORAM:
Decision
ORDER 18.05.2023 Order No. 2 This matter is taken up through hybrid mode. 2. Heard Mr. B.P. Das, learned counsel appearing for the petitioner; Mr. P.K. Rath, learned counsel appearing for the intervenor/objector- Satyananda Barik and Mr. L. Samantaray, learned Additional Government Advocate appearing for the State-opposite parties. 3. The petitioner has filed this writ petition seeking to quash the order no.2261 dated 02.05.2023 under Annexure-13 passed by opposite party no.1-Government of Odisha, Excise Department, and further to issue direction to opposite party Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 19-May-2023 10:20:17 no.1 to reconsider the application of the petitioner under Annexure-1 for “ON” Shop License in the name and style “Hotel Ayushi Restaurant”, Kamaripur under Bahanga GP in the district of Balasore relaxing the restrictive provisions of 2 Rule-26 of the Odisha Excise Rules, 2017, as it has been extended to one Rajani Kumari in the district of Balasore under Annexure-10 series within the extended period of 30.06.2023. 4. Mr. B.P. Das, learned counsel appearing for the petitioner contended that being aggrieved by the order dated 02.05.2023 under Annexure-13 passed by opposite party no.1- Government of Odisha, Excise Department rejecting the proposal for grant of license for opening of IMFL Restaurant “ON” Shop (without Lodging) in the name and Style “Hotel Ayushi Restaurant” over Plot No.176, Khata No.185/203, Mouza-Kamariapur in the district of Balasore, the petitioner has approached this Court by filing this writ petition. It is further contended that on the basis of report submitted by the Inspector of Excise, Sadar Range, Nilgiri Range, Balasore that the proposed site comes under restrictions distance i.e. 350 meters, one Baya Pokhari Pond and Alekha Mahima Matha are also found within 200 & 230 meter distance respectively from the proposed site and the re-enquiry report submitted by the Tahasildar, Bahanaga, that one Alekha Mahima Ashram is 200 meter, Budhi Basuli Temple is 1.3 KM through Govt. road and 380 meter through public road, Ananta Bada Temple is 100 meter from the proposed site, opposite party no.3 has recommended the proposal of granting license for “ON” Shop. It is further contended that the State Government has power to relax Rule-26 of the Odisha Excise Rules, 2017 and invoking the said provision, the State Government can grant license for 3 opening of “ON” Shop in the name and style “Hotel Ayushi Restaurant”. It is brought to the notice of this Court that since similar relaxation has also been granted to other person for opening of “ON” shop, and, therefore, it is contended that the petitioner may be extended the same benefit. 5. Mr. P.K. Rath, learned counsel appearing for the intervenor/objector-Satyananda Barik contended that the proposal for setting up of “ON” Shop of the petitioner, being made within the objectionable area, the authority is well justified in passing the order dated 02.05.2023 under Annexure-13. It is further contended that in the event the authority grants permission to set up the “ON” Shop by relaxing Rule-26 of the Odisha Excise Rules, 2017, it will prejudice the local people. 6. Mr. L. Samantaray, learned Additional Government Advocate appearing for the State-opposite parties contended that initially an enquiry was conducted by the Inspector of Excise, Sadar Range, Nilgiri Range, Balasore, who had reported that the proposed site comes under restrictions distance i.e. 350 meters, one Baya Pokhari Pond and Alekha Mahima Matha are also found within 200 & 230 meter distance respectively from the proposed site. Therefore, the claim of the petitioner for establishment of IMFL “ON” Shop in the name & Style “Hotel Ayushi Restaurant” is within the restrictive zone, which cannot be permitted to open the same within the objectionable premises. Thereby, the authority directed for re-enquiry of the distance of objectionable 4 institutions and structure and it reveals from the re-enquiry report submitted by the Tahasildar, Bahanaga, who reported that one Alekha Mahima Ashram is 200 meter, Budhi Basuli Temple is 1.3 KM through Govt. road and 380 meter through public road, Ananta Bada Temple is 100 meter from the proposed site. Therefore, opposite party no.1 has rightly rejected the claim of the petitioner for opening of IMFL Restaurant “ON” Shop in the name & style “Hotel Ayushi Restaurant”. 7. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court is of the opinion that since the proposed IMFL Restaurant “ON” Shop in the name & style “Hotel Ayushi Restaurant” is within the restrictive zone, the authority has not committed any error in the order dated 02.05.2023 under Annexure-13 in rejecting the claim of the petitioner so as to cause interference of this Court. 8. In course of hearing, both learned counsel appearing for the petitioner and intervener-objector made a prayer before this Court that direction may be issued to the State Government to make visit to the spot and reverify the distance of the objectionable premises, so that the correct position can be ascertained. In the event it comes within the restrictive zone, the petitioner may not get chance for opening of the IMFL Restaurant “ON” Shop and if it does not come within the restrictive distance, the authority can consider the same for opening of the said “ON” Shop. 5 9. Mr. L. Samantaray, learned Additional Government Advocate appearing for the State-opposite parties contended that if such proposal is coming from both the parties, direction may be issued to both the parties to appear before the State Government for remeasurement of the distance so that the issue can be resolved. 10. In the above view of the matter, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition permitting the petitioner as well as the intervenor-objector to appear before the Principal Secretary, Excise Department, Bhubaneswar, Odisha, who shall fix a date for spot verification and measurement of the distance within the extended period, i.e., 30.06.2023 and pass appropriate order by giving opportunity of hearing to the parties. Alok (DR. B.R. SARANGI) JUDGE (M.S. RAMAN) JUDGE