Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No. 23046 of 2025 In the matter of an Application under Articles 226 & 227 of the Constitution of India, 1950 *** Sri Sandeep Raiguru Aged about 53 years Son of Late Prahallad Raiguru Resident of Friends Club Lane Puri-2 (Near Gundicha Temple) P.O./P.S.: Puri Town District: Puri – 752 002 in respect of Atharabanki IMFL OFF Shop in the district of Jagatsinghpur).… -VERSUS- 1. State of Odisha Represented by Principal Secretary to Government Excise Department Lok Seva Bhawan Sachivalaya Marg Bhubaneswar – 751 001 District: Khordha. 2. Excise Commissioner, Odisha Cuttack Road, Bidanasi P.O.: Cuttack – 753 014 District: Cuttack. Petitioner W.P.(C) No.23046 of 2025 Page 1 of 20 3. Collector, Jagatsinghpur At/P.O./District: Jagatsinghpur. 4. Superintendent of Excise Jagatsinghpur At/P.O./District: Jagatsinghpur. … Opposite Parties. Counsel appeared for the parties: For the Petitioner : Mr. Prafulla Kumar Rath, Senior Advocate along with Mr. Surajit Kumar Behera, Advocate For the Opposite Parties : Ms. Aishwarya Dash, Additional Standing Counsel P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 08.09.2025 :: Date of Judgment : 08.09.2025 J UDGMENT HARISH TANDON, CJ.— The instant writ petition is taken out by an existing IMFL “OFF” Shop licensee assailing the order/notice dated 5th June, 2025 issued by the Superintendent of W.P.(C) No.23046 of 2025 Page 2 of 20 Excise, Jagatsinghpur communicating the order of the Collector, Jagatsinghpur dated 3rd June, 2025 for shifting the said IMFL OFF Shop from the existing place to an unobjectionable site within two months in the interest of public. 2. The petitioner took a specific stand that the said IMFL OFF Shop is operating at the existing site since last four decades by different licensees and the petitioner was granted license by the competent authority in the previous year which has also been renewed for the current year meaning thereby, the said license is valid till 31st March, 2026. 2.1. In the midst of the currency of the license, the aforesaid letter is issued to the petitioner which impedes the continuance of the business activities, for which such license is granted to the petitioner, without taking recourse to the provisions of law applicable in this regard. 2.2. It is a specific stand of the petitioner that the IMFL OFF Shop which is operating for such a long period cannot be directed to be shifted to another unobjectionable site as an objection is received from the locality, that it is situated within the close proximity of the public health centre, temple, educational institutions, etc., causing W.P.(C) No.23046 of 2025 Page 3 of 20 inconvenience to the patients and other passerby of the said locality. 3. Because of such stand having taken, we invited the
Legal Reasoning
attention of Ms. Aishwarya Dash, learned Additional Standing Counsel (ASC) appearing on behalf of the State in this regard and permitted her to disclose the stand in the form of an affidavit which, in fact, has been filed in the instant case. 3.1. It is contended in the said counter affidavit that the said IMFL OFF Shop is operating for a pretty long time, but the order was passed by the Collector perceiving its close proximity to the public health centre, temple and educational institutions, etc. The Collector invoked the said power deriving it from Rule 53 of the Odisha Excise Rules, 2017 (in short, „the Rules‟). It is further disclosed in the said affidavit that though said shop has been functioning at the existing site over four decades but public nuisance was being felt and, therefore, the order was passed by the Collector to shift the said shop from the existing site to another site. 3.2. Mr. Prafulla Kumar Rath, learned Senior Counsel appearing for the petitioner drew our attention to Rule 33 of the Rules for the proposition that the objection made by the locality/villagers can only be entertained at the time of either granting a new license or at the time of W.P.(C) No.23046 of 2025 Page 4 of 20 renewal of such license, but not after the license has already been granted or renewed. He further submits that the Collector does not enjoin any power to direct shifting of the shop which is operating since last four decades, merely because an objection is received from the locality/villagers after the notified date. He arduously submits that the plea of nuisance does not invite shifting of the shop as the power to be exercised by the competent authority should be restricted to Section 26 of the Odisha Excise Act, 2008 (in short „the Act‟) and, therefore, any direction/order passed in departure from the powers conferred upon the authority is illegal and liable to be interfered with under the power of the judicial review. Lastly, he submits that the authority cannot pass direction/order not conferred by the statute and if any such direction/order is passed, the same is regarded as colourable exercise of power not conferred upon the said competent authority. 3.3. Per contra, Ms. A. Dash, learned ASC submits that by virtue of Rule 53(5) of the said Rules, the Collector is bestowed with the power to pass an order for shifting of shop for any reason and, therefore, once such power is exercised, it does not invite any interference by the Court. She further submits that the scheme of the Act and the Rules framed thereunder postulates that the procedure required to be strictly adhered to for granting W.P.(C) No.23046 of 2025 Page 5 of 20 the license at the time of granting and/or renewal and, therefore, if the authority can refuse to grant a fresh license, it has implied power to refuse to grant the renewal of a license as well. Another plea is taken by Ms. Dash, learned ASC for the State in the counter affidavit that there is no fetter on the part of the authority to pass the order for shifting of the shop from an existing site to another site if the nuisance is perceived and/or found by the authority thereat. 3.4. Mr. Prafulla Kumar Rath, learned Senior Advocate, in reply, submits that the order impugned in the instant writ petition is bereft of any reason far to speak of plausible reason and, therefore, such order is liable to be quashed and set aside on such ground alone. To buttress the aforesaid submission, reliance is placed upon a judgment of the apex Court in case of Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity; reported in (2010) 3 SCC 732. 4. At the first blush, the objection of the learned ASC with respect to shifting of shop from existing site appears to be attractive, but after going through the tenor of the impugned order and the other materials available on record, we do not find that such ground is sustainable either on facts or in law. W.P.(C) No.23046 of 2025 Page 6 of 20 4.1. For the argument sake, if we accept the contention of the State that the order for shifting of the shop was passed as nuisance at the site of the shop was noticed, it invites another point whether the Collector or the Superintendent of Excise is competent to pass an order for shifting the shop from the existing site to another site. In this regard, the reference can be gainfully applied to the provision contained in Section 26 of the Odisha Excise Act, 2008, which runs thus: “26. Powers to close shops temporarily.— (1) The District Magistrate or a Sub-Divisional Magistrate may, by notice in writing to the licensee require that any shop in which any intoxicant is sold shall be closed at such times or for such period as he may think necessary for the preservation of the public peace: Provided that if the closure is required for a continuous period of more than three days, the approval of the Excise Commissioner shall be taken. (2) If any riot or unlawful assembly is apprehended or occurs in the vicinity of any shop in which any intoxicant is sold, any Executive Magistrate, or any Police Officer not below the rank of a Sub-Inspector who is present, may require such shop to be kept closed for such period as he may think necessary. (3) When a direction is made by a Magistrate under sub-section (1) or sub-section (2), or any Police Officer under sub-section (2), such Magistrate or Police Officer, as the case may be, shall forthwith W.P.(C) No.23046 of 2025 Page 7 of 20 inform the Collector of his action and of reasons therefor.” 4.2. The meaningful reading of the above quoted provision appears to have been misplaced by the learned ASC. The provision does not confer power upon the Collector or the Superintendent of Excise to pass an order for shifting. Rather it may be pertinent to take notice of Rule 53(5) of the said Rules, i.e., shifting of a shop from one place to another, whereunder power is bestowed to close the shop temporarily and not beyond that. 4.3. The provisions of Rule 53 read as follows: “53. Fixing and shifting of shop premises.— (1) Any person intending to obtain a license under the Act or a person selected for grant of license for retail vend of any intoxicants shall specify about the locality of vend a village, sahi or in town, a Mahala, street or certain street or word to the authority competent to grant such license. (2) If the details given under sub-rule (1) are considered vague or insufficient the Collector shall specify a particular distance from some fixed spots, from the premises where the shop is intended to be opened. (3) The details of the whole locality be fixed and notified before the settlement is made. (4) The site of the shop shall be subject to the approval of the Collector. W.P.(C) No.23046 of 2025 Page 8 of 20 (5) In case of shifting of shop for any reason, the details as mentioned in sub-rule (1) shall be furnished to the Collector, who, on being satisfied refer to the Commissioner for his approval.” 4.4. The power to issue an order to temporarily close the shop is different and distinct from the power to direct shifting of the existing shop from the present site to another. The moment the powers are distinct and different, the same has to be exercised by the authority in its true spirit. Provisions of Rule 26 does not clothe powers upon the Collector or the Superintendent of Excise to pass an order for shifting of the shop from the existing site to another site and, therefore, support of the said provision does not hold water. 5. On the backdrop of the aforesaid facts and the submissions so advanced, the pivotal issue involved in the instant writ petition is whether the Collector or the Superintendent of Excise is competent enough to pass an order/direction for shifting of IMFL OFF Shop from the existing site to an unobjectionable site in the midst of the currency of a license granted after complying with all the statutory provisions provided in the parent Act as well as the Rules framed thereunder. 5.1. On a factual matrix, it is reasonably discerned that the IMFL OFF Shop for which the license is granted to the petitioner is operating since long. The petitioner was W.P.(C) No.23046 of 2025 Page 9 of 20 awarded a license and was exercising his right conferred under the said license by undertaking commercial activities from the said shop. It is undeniable that the application for renewal of license was processed by the competent authority and the same was granted to the petitioner even for the period of 2025-2026 meaning thereby that the said license is valid till 31st March, 2026. 5.2. The impugned letter issued by the Superintendent of Excise, Jagatsinghpur for communicating the order of the Collector dated 3rd June, 2025 appears to have been made during the validity of the said license as ordinarily the licenses are issued for a period from 1st April of a year to 31st March of the next year. In order to arrive at the decision whether the action of the Collector or the Superintendent of Excise is within the four corners of the legal provisions or not, it would be apposite and profitable to consider various provisions of the substantive Act or the Rules framed thereunder. 5.3. Section 37 of the Act contained in Chapter VI, which is relatable to “Licenses, Permits and Passes”, postulates that before the expiration of every period for which the existing licenses for the retail sale of spirit or tari are in force, it is imperative on the Collector to prepare a list in a prescribed manner indicating the kind of licenses proposed to be granted for consumption in the vendor‟s W.P.(C) No.23046 of 2025 Page 10 of 20 premises for the next period of settlement. The said Section 37 is quoted hereunder. “37. Preparation of list of places of which it is proposed to grant licenses for the retail sale of spirit- Before the expiration of every period for which existing licenses for the retail sale of spirit or tari are in force, the Collector shall prepare a list, in a form to be prescribed showing therein the kind of licenses proposed to be granted for the retail sale of spirit or tari for consumption in the vendors premises, for the next period of settlement.” 5.4. From the language used in the said Section, it is aptly clear that the said provision is not restricted to grant of new license, but has expanded its applicability to a case of renewal of a license at the existing site. Though Ms. Dash, learned ASC has invited the attention of the Court to the aforesaid provision to have its applicability in the present fact situation, we do not find that the said section has any applicability to the license which is issued for selling the spirit outside the vendor‟s premises. The said provision has its applicability to an IMFL ON Shop license, which would further be strengthened from the expression „for consumption in the vendor‟s premises‟ and not in relation to a license where the consumption is not permitted within the vendor‟s premises. W.P.(C) No.23046 of 2025 Page 11 of 20 5.5. Be that as it may, an inference can be drawn and the spirit and/or tenure of the said provision can be extended for the purpose that even at the time of granting the renewal, the authorities have to adhere to several provisions of the Act and the Rules as required to be taken at the time of granting a fresh or new license. 5.6. Part-II of Chapter III of the Rules, 2017 dealing with “Sale of intoxicants” exhaustively contained the incidences relating to ascertainment of local opinion prior to the grant of licenses or exclusive privilege for the retail sale of liquor or tari or bhang. Rule 30 of the said Part imposes the conditions to be adhered to before the Collector proceeds to grant license or to renew the same for the next year. Sub-rule (3) of Rule 30 has its applicability to the objection of serious nature, if any, received during the period of the settlement and an application of mind by different authorities in this regard. 5.7. Rule 31 provides for different steps to be taken before a final decision is taken either to grant a fresh license or to renew the same for the next coming year which also includes the objections, if any, filed by the villagers or inhabitants of the local area. In order to ensure strict compliance thereof, Rule 32 makes it imperative to cause the copy of the extract to be affixed in a conspicuous place, i.e., the office notice board of the W.P.(C) No.23046 of 2025 Page 12 of 20 local body so that objection, if any, may be filed within the specified time. 5.8. Rule 33 has been pressed into action by Mr. Prafulla Kumar Rath, learned Senior Counsel in support of his contention that the objection has to be filed within the statutory period provided under this rule and any objection, if filed, is to be dealt with by the authority in proceeding to grant the license or to renew the license, but subsequent objection cannot be entertained. 5.9. Rule 33 is reproduced as under: “33. Objection to the proposal to be sent to the Collector.— (1) All objections and suggestions referred to in rule 31 with respect to proposals contained in the list prepared under Rule 30 shall be sent to the Collector within fifteen days from the date of expiry of the period of notice given in Form VIII and in case of cantonment, the Commanding officer shall inform the Collector within the said period whether he consents to the proposals. (2) Any objection and suggestion received after the said period shall be summarily rejected. (3) The list prepared and recommended by the Collector and submitted to the Excise Commissioner in accordance with sub-section (2) of Section 41 shall be submitted before the State Government for approval under Section 42.” W.P.(C) No.23046 of 2025 Page 13 of 20 5.10. Sub-rule (1) of Rule 33 contained the provision relating to any objection filed at a particular time contemplated under Rule 30 or Rule 31 to be sent to the Collector in a prescribed form for taking a conscious decision thereupon. Sub-rule (2) of Rule 33, in our opinion, as heavily pressed into action by Mr. Prafulla Kumar Rath, Senior Advocate clearly indicates that any objection or suggestion received after the notified period shall be summarily rejected. 5.11. The cumulative effect of the provisions contained in Rules-30 to 33 exposit that at the time of granting the license or renewal thereof, the notices to be issued, to be affixed in a conspicuous part of the office of the local body; objections, if any, so received and above all, a conscious and/or positive decision should be taken upon the said objections before the authority embark its journey on the peripheral of granting a new license or renewal of the license for the next coming year. 5.12. The moment, the objections are dealt with or in the event, no objection is filed, sub-rule (2) of Rule 33 creates a complete embargo in entertaining any objection subsequently filed. The language used in sub-rule (2) or Rule 33 is suggestive of the fact that no objection subsequent to the notified period shall be entertained and/or permitted to be taken on record as the same is liable to be summarily rejected. W.P.(C) No.23046 of 2025 Page 14 of 20 5.13. The composite reading of the aforesaid provisions indicates that the moment the license is granted for the first time or the renewal is effected, the objection coming within the purview of Rule 30 or 31 is liable to be summarily rejected as the authorities cannot suo motu extend the statutory period of notice provided in the statutory form and keep the disputes alive for all time to come. 5.14. Once the legislature has used a timeline within which the action is to be taken or perceived to be taken, it eradicates the powers of the authorities to suo motu extend the said statutory period by entertaining any objection filed beyond the stipulated time provided in the statute or the statutory rules. The importance of providing the time limit within which the steps are to be taken to ensure not only timely decisions to be taken but to eradicate any subsequent objections to be entertained in order to give certainty into the rights and avoid any right to remain in lurch. The embargo created in sub- rule (2) of Rule 33 is imperative and mandatory in nature which would further be corroborated by the use of the word „shall‟ therein. 5.15. Wherever the word „shall‟ is used in the statutory provision, it ordinarily conveys the mandatory operation of the said provision unless a different interpretation would appear from the very object and the purpose of W.P.(C) No.23046 of 2025 Page 15 of 20 incorporation of the statutory provision. We are not unmindful of the proposition of law that at times, the word „shall‟ may be interpreted as „may‟ and vice versa. It depends upon the nature of the legislation and the purpose and object for which it is so legislated. We do not delve to go to the nuances of the law relating to the beneficial use of the word „shall‟ or „may‟ as we find from the tenet of the aforementioned provisions contained in the said statutory rules that the timeline fixed therein is to give an opportunity to the inhabitants or the villagers of the locality to file an objection. Subsequent change of mind or inviting the others to file an objection should not be entertained as providing the opportunity to file objection within the stipulated time cannot operate perpetually. 6. The matter can be viewed from another angle that once the license is granted by a competent authority, the right to trade or business becomes absolute into a person, subject, however, to such restrictions to be imposed in this regard and such right cannot be taken away in extending the period of an objection and frustrating the purpose of fixing such timeline within the statutory provision. 6.1. The discussion as made hereinabove leads to an inescapable conclusion that the authority cannot entertain the objection filed after the expiration of the W.P.(C) No.23046 of 2025 Page 16 of 20 statutory period provided in Rule 32 and should have summarily rejected the same having filed beyond the said timeline under sub-rule (2) of Rule 33 of the said Rules. 6.2. Though a plea is taken by the petitioner that the Collector has no authority to pass an order for shifting of the shop from the existing site to another site, we do not find substance in the said objection as such power to direct shifting of the shop for any reason is vested upon the Collector subject to the approval by the Commissioner. Since the issue whether any order can be passed for shifting the shop from the existing site to another site on the basis of the objection raised by the villagers has been discussed hereinabove and we find that such objection cannot be entertained after the statutory period expires and the renewal of the license is granted. We do not intend to dilate much on such issue and keep it open to be discussed in an appropriate case in future. 7. Though the reasons assigned hereinbefore have closed the doors for any other issue to be decided as the order impugned in the instant writ petition is liable to be quashed having passed in blatant violation of the statutory provisions, we cannot absolve our responsibility to take into consideration the other point taken by Mr. Prafulla Kumar Rath, learned Senior W.P.(C) No.23046 of 2025 Page 17 of 20 Counsel appearing on behalf of the petitioner that the impugned order is bereft of any reasons. 7.1. The tenet of the said letter is a reflective of an objection having made as the site of the shop in a close proximity to the public health centre, temple, educational institution etc., causing inconvenience to the patients and the other passerby. It is no longer res integra that the importance of providing reason is indispensable in an adversarial system of adjudication as every litigant is entitled to know the reason for deciding his cause. It is all along a consistent stand taken by the Courts of the country that an order without reasons is not an order in the eye of law. At times, it is regarded as the heart and soul of the order; at times, as a heartbeat of every conclusion. 7.2. Whatever may be the expression used by the authors of the judgments, it harnesses and echoes in one uniform voice that providing of reason is indispensable in the judicial system and is ingrained within the principles of natural justice. The support can be lent to the judgment rendered by the apex Court in Secretary and Curator, Victoria Memorial Hall (supra) in the following: “40. It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons W.P.(C) No.23046 of 2025 Page 18 of 20 for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. „The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.‟ (Vide State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 = AIR 2004 SC 1794 and State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573). 41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. (Vide Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519 = AIR 2003 SC 4664, SCC p. 527, para 19; Vishnu Dev Sharma v. State of U.P., (2008) 3 SCC 172, SAIL v. STO, (2008) 9 SCC 407, State of Uttaranchal v. Sunil Kumar Singh Negi, (2008) 11 SCC 205 = AIR 2008 SC 2026, U.P. SRTC v. Jagdish Prasad Gupta, (2009) 12 SCC 609 = AIR 2009 SC 2328] , Ram Phal v. State of Haryana, (2009) 3 SCC 258, Mohd. Yusuf v. Faij Mohammad, W.P.(C) No.23046 of 2025 Page 19 of 20