The Government cannot issue administrative instructions that deviate from its own Excise Policy and orders conferring rights on existing exclusive privilege holders. Mere criminal allegations or the institution of a criminal proceeding, without conviction, do not constitute unsatisfactory conduct under Rule 45(2)(b) of the Orissa Excise Rules, 1965.

JUDGMENT :

G.B. Pattnaik, J. - The petitioner was the grantee of three foriegn liquor shops in the district of Keonjhar. In accordance with the policy decision of the Government, he claims to be entitled to the renewal of his licence for the year 1994-95, but the licence not having been renewed under the pretended plea that a criminal case has been started against him during 1993-94, the petitioner has approached this Court.

2. Pursuant to notice issued by this Court, a return has been filed being sworn to by the Superintendent of Excise. It has been stated therein that no doubt the petitioner's licence should have been renewed for 1994-96 in accordance with the Revenue Department order dated 23-4-1991 as amended by order dated 4-1-1992, but since the grantor has a right to refuse the grant of exclusive privilege without assigning any reason, no error can be found out in not renewing the licence. ft is further stated that in accordance with the Government letter dated 19-3-1994, if any licence is found to have been criminally prosecuted during 1993-94, then such licensee would not be entitled for renewal. The aforesaid Government Circular has been annexed as Annexure-6 to the writ application. As the source of power for issuance of such Government Circular under Annexure-6 had not been indicated in the affidavit of the Superintendent of Excise, we had called upon the learned Addl. Government Advocate to file an affidavit of the State Government itself locating the power under which the aforesaid circular has been issued. Accordingly/ an afidavit has been filed on 16-7-1994 stating therein that u/s 45 of the Bhihar and Orissa Excise Act, no person to whom any licence or exclusive privilege has been granted under the Act shall have any claim to the renewal of such licence or exclusive privilege, as the case may be. it has beers further stated that Rule 45 of the Orissa Excise Rules, 1965 clearly indicates that licensee for retail sale of intoxicants shall not ordinarily be granted to a former licence whose conduct has been found to be unsatisfactory, as stipulated in Rule 45(2)(b). Sirce a criminal case has been instituted egainst the petitioner, the competent authority thought it appropriate not to renew the licence.

3. In view of the rival stand of the parties, two questions arise for our consideration :

(i) Wheather the Government in the Revenue Department has may power to issue such instructions as contained in Annexure-6 prohibiting the renewal of licence if a license is found to have been Criminally prosecuted or criminal allegations are made during the year 1993-94 ?

(ii) Whether mare allegation or institution of criminal case would tantamount to the fact that the conduct of the licenses has been found to be unsatisfactory as contained in Rule 45(2)(b)?

The further contention that no grantes of exclusive privilege has a right of renewal of such privilege in view of Section 45, does not really arise for consideration, inasmuch as the petitioner who was the grantee of the exclusive privilege in question does not exercise his right of renewal as a matter of right. His right flows from the Excise Policy enunciated for 1994-95 as well as the Government order dated 23-4-1991 and the amendment order No. 38 dated 4-1-1992. In view of the excise policy evolved by the Government, an existing exclusive privilege holder was entitled to continue for a consecutive period of three years inclusive of the year in which the privilege had been granted and, therefore, the petitioner being an exclusive privilege holder for 1992-93 was entitled to the privilege for 1994-95. Once the Government passes an order indicating its policy for setting the privilege, it cannot be permitted to deviate from the same in purported exercise of the power u/s 45 of the Bihar and Orissa Excise Act. Even though the petitioner cannot be said to have a right to claim renewal in view of Section 45 of the Act as pointed out to us in course of hearing, his right that has a