JUDGMENT

I. M. QUDDUSI, J. — By means of this writ petition, the peti¬tioner has prayed for quashing the selection of opposite party No.5 for grant of exclusive privilege in respect of the IMFL Off shop at New Bus Stand, Berhampur and for issuance of a writ of mandamus commanding the opposite party No.3 to reject the appli¬cation made by opposite party No.5 in respect of the aforesaid Off shop and to declare him as the lottery winner being the remaining qualified and sole applicant for the said shop.

2. The facts leading to the filing of this writ petition are that by notice dated 5.7.2007, the Collector, Ganjam invited applications for the grant of exclusive privilege for retail sale of India Made Foreign Liquor (OFF) shops in respect of six shops as contained in the list enclosed to the notice in the district of Ganjam which included the IMFL OFF shop at New Bus-stand, Berhampur for the period from the date of grant till 31.3.2008 with which we are concerned in this writ petition. The last date of submission of applications was fixed to 18.7.2007 and the date of lottery was fixed as 25.7.2007. Persons interested to apply for the grant had to make the application in Form-B along with the documents mentioned in Clause (xi) of the notice. Pursuant to the notice, the petitioner as well as opposite party No.5 filed their applications. It is alleged by the petitioner that since opposite party No.5 had not submitted the sales tax clearance certificate, non-assessment certificate and the affidavit as required by the notice alongwith his application, his application ought to have been rejected and he could not have been allowed to take part in the lottery and the petitioner being the only valid applicant, he should have been declared as the winner of the lottery. However, vide letters dated 23.11.2007 and 12.2.2008, the Collector granted opportunity to the opposite party No.5 to submit the sales tax clearance certificate and vide office order dated 29.2.2008 (Annexure-3) it was notified that the applica¬tions of the petitioner and opposite party No.5 were found suit¬able for consideration for settlement of the said shop through lottery process subject to production of valid documents as per their undertaking submitted in response to letter No.336/Ex. Dated 12.2.2008. The petitioner has challenged such action of the Collector as illegal, arbitrary and without authority and that the declaration of opposite party No.5 as lottery winner was in violation of Rule 45 of the Orissa Excise Rules, 1965.

3. Though no counter affidavit has been filed on behalf of opposite party Nos.1 to 4, Shri P.P. Panda, learned Additional Standing Counsel, has produced the relevant file along with the instruction received from the Superintendent of Excise, Ganjam, Chatrapur-opposite party No.4. Opposite party No.4 has stated in the instruction that both the petitioner as well as opposite party No.5 failed to furnish up-to-date sales tax clearance cer¬tificate at the time of submission of the application form but the Collector permitted them to participate in the lottery sub¬ject to condition that they shall produce up-to-date sales tax clearance certificate in the event of settlement of the shop. Prior to the lottery, the Collector had also issued notice vide letter No.336 dated 12.2.2008 asking the petitioner as well as opposite party No.5 to furnish undertaking in shape of an affida¬vit showing their readiness to furnish the necessary documents on the very date of drawal of lottery in connection with settlement of IMFL OFF shop by 15.2.2008. In the meantime, the date of lottery was postponed to 10.3.2008. On that day in spite of opportunity being given to the petitioner and opposite party No.5, they failed to produce the required documents but even then the lottery was held and opposite party No.5 was declared as the winner and was asked to produce the wanting documents within 7 days from the date of drawal of lottery and both petitioner as well as opposite