JUDGMENT :

Durga Prasanna Choudhury, J.

1. The above writ application came to be filed challenging the action of the opposite parties with regard to non-shifting ex-free time of IMFL "ON" shop of petitioner from the existing site to new site.

FACTS :

2. The unraveled story of the case of the petitioner is that the petitioner was allowed by the State Government to run IMFL "ON" shop over a plot in village Bhanapur in the district of Cuttack for the period 2010-11 vide Annexure-1. Thereafter the license of the petitioner has been renewed from time to time for the years 2011-12, 2012-13 and 2013-14 by the competent authority. While the petitioner was continuing his business, opp. Party No. 3, the Collector, Cuttack issued a notice to the petitioner to shift his "ON" shop in question to an unobjectionable site to avoid any disturbance in the residential building and alleged public objection and true copy of the order is annexed as Annexure-3. Then the petitioner chose a new site and requested the authorities to allow him to operate his "ON" shop at the new place. The Superintendent of Excise vide order dated 31.3.2014 rejected the proposal of the petitioner for shifting of his "ON' shop to the new site on the ground that such site is located within 35 Mtrs. of State Highway in terms of the guidelines issued by the Excise Department vide Annexure-4.

3. It is stated by the petitioner that challenging such order dated 31.3.2014 the petitioner had earlier preferred Writ Application vide W.P. (C) No. 20631 of 2014 before this Court on the ground that the plea taken by the State in referring the guidelines dated 1.6.2014 of the Government in Excise Department is unsustainable. This Court directed the authorities to reconsider the application for operating the "ON" shop of the petitioner and to approach the authorities. Accordingly the petitioner applied on 22.8.2015 to the competent authority-Collector for shifting of his "ON" shop. At the same time it is stated by the petitioner that the Collector, Cuttack has invited objection vide notice dated 22.9.2015 under Section 22(1-a) of the Bihar and Orissa Excise Act, 1915 and no objection was stated to have been received from any quarter to the shifting. So the Collector by virtue of the provisions made in Rule-34 of the Orissa Excise Rules, 1965 (hereinafter referred to as "the Rules") allowed for renewal of the license in the proposed new site. It is further stated by the petitioner that the opposite Party No. 2, the Excise Commissioner to the ill luck of the petitioner, rejected the proposal of shifting of his "ON" shop vide order dated 9.11.2015. Thereafter the order of the Excise Commissioner was communicated to the petitioner with a request to find out some other location for relocation of his "ON' shop vide Annexure-8. The rejection orders dated 9.11.2015 and 5.12.2015 being illegal, arbitrary and not in accordance with the prevailing provision of law vide Rule 92 of Instruction framed by the Board of Revenue, Orissa and is against the interest of liquor traders and loss to exchequer. Impugned orders are also discriminatory in nature. Rule-92 of the Instruction framed by the Board of Revenue clearly says that while the Excise shop is settled with the right of the vendors, the right of the latter is settled.

4. Paragraph 3(V) of the Excise Department Notification No. 2914/Ex. dated 28.04.2005 speaks that "A shop once starts operating in its sanctioned locality shall not ordinarily be removed. However, shifting of a shop to any site other than the sanctioned locality for any special reasons shall be subject to the approval of the Excise Commissioner." Thus, the petitioner being afraid of the illegal action being taken by the Excise Commissioner has knocked the door of this Court. Hence the writ.

5. Opposite Parties 2, 3 and 4 filed counter through the Superintendent of Excise, Cuttack stating that the action on the part of the State to reject the shifting proposal of the "ON' shop of the peti