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2014 Supreme(Ori) 910
IN THE HIGH COURT OF ORISSA
A.K. Goel, A.K. Rath, JJ.
PRADEEP KUMAR SAHOO - APPELLANT
Versus
THE STATE OF ORISSA - RESPONDENT
Decided On : 02-01-2014
Ramakanta Mohanty and Mr. Jayant Das, Mr. D. Mohanty, Mr. A. Mohanty, Mr. S.C. Panda, Mr. B.R. Rath, Mr. Sanjib Swain, Mr. S.C. Panda, Mr. Sidhartha Das, Mr. L. Kanungo, Mr. P.R. Singh, Mr. K.P. Mishra, Mr. N. Panda, Mr. S. Das, Mr. S.R. Jena, Mr. S.C. Das, Mr. Narasingha Patra, Mr. A.K. Patra, Mr. B. Shadangi, Mr. N. Sahani and Mr. K. Pradhan, for the Appellant; R.K. Mohapatra, Govt.Advocate, for the Respondent
The duty of the State to protect human health and the need for fair decision-making in liquor trade.
Headnote:
Excise Commissioner - Closure of Liquor Shops on National Highway - Bihar and Orissa Excise Act, 1915, Rule 34 of the Odisha Excise Rules, 1965 - The judgment discusses the authority of the Excise Commissioner to direct closure of liquor shops on the National Highway, the legal framework governing the trade of intoxicating drinks, and the duty of the State to protect human health by regulating liquor trade. It emphasizes the need for a clear government policy on the location of liquor shops and the fair implementation of such policy.
Fact of the Case:
The petitioners sought quashing of Circulars directing closure of liquor shops on the National Highway. They argued that the closure resulted in undue hardship and financial loss, and that the Excise Commissioner had no authority to issue such directives without a clear policy.
Finding of the Court:
The court found that the Excise Commissioner cannot order closure of shops without a clear government policy. It emphasized the duty of the State to protect human health and the need for fair decision-making in liquor trade.
Issues: The main issues were whether the Excise Commissioner had the authority to direct closure of liquor shops on the National Highway and whether the license fee was refundable and the shop location could be shifted at the option of the licensee.
Ratio Decidendi: The court held that the Excise Commissioner cannot order closure without a clear government policy, and emphasized the duty of the State to protect human health and the need for fair decision-making in liquor trade.
Final Decision: The petitions were disposed of, directing the State to review its policy on the location of liquor shops and make clear provisions for the consequences of discontinuing licenses and the option of relocating existing shops.
JUDGMENT :
A.K. Goel, C.J. - This batch of writ petitions seeks quashing of Circulars dated 21.8.2013 and 31.10.2013, Annexures-I and II, issued by the Excise Commissioner, Odisha and the Collector, Cuttack respectively. By the first Circular, inter 02.01.2014 alia, the liquor shops on the Government land and along the National Highway have been directed to be closed. The second Circular purports to give effect to the first circular in respect of IMFL "ON" or "OFF" shops along the National Highway by referring to an order of this Court dated 18.9.2013 in W.P. (C) No. 19674 of 2013 (Susama Jena Vs. State of Odisha & others). Case of the petitioners in W.P. (C) No. 25913 of 2013 is that they are EP Holders of IMFL "ON" shops in Cuttack District and running their liquor shops on private lands along the National Highway. They are having licences which have been renewed for the year 2013-14 on payment of annual licence fee as per Excise Policy 2013-14, but their licences have been discontinued w.e.f. 1.11.2013 by referring to above order of this Court dated 18.9.2013.
2. The grievance in the petition is that neither any prior notice was given nor opportunity of hearing was given before passing of the impugned order. The impugned action resulted in undue hardship and irreparable financial loss. The existing huge stock of IMFL and Beer remains unsold and is lying in a closed room, which may be contaminated because of perishable nature and rendered unfit for human consumption. The power of prohibiting the grant of licence for retail sale of intoxicants is vested in the State Government under Subsection (f) of Section 89 of the Bihar and Orissa Excise Act, 1915. The Excise Commissioner has no authority to make rules or prohibit grant of licence beyond the said statute, rules or applicable policy. The State Government, vide notification dated 25.5.2005, amended the Rule 34 of the Odisha Excise Rules, 1965, prohibiting opening of any new shop for consumption of liquor on the vendor's premises on the National Highway. In absence of any restriction by the State Government, the Excise Commissioner or the Collector could not restrain the petitioners from running their liquor shops on the National Highway. Reference has been made to the counter affidavit filed in a PIL being W.P. (C) No. 19790 of 2012 filed by one Jaysankar Acharya to cancel the licence of IMFL OFF/ON shops situated within 500 meters along the National Highway in the State of Orissa. The State of Orissa took a clear stand that there is no restriction to issue IMFL "ON"/"OFF" licence within 500 meters along the National Highway. The said restriction was done away with by way of amendment to 2005 Rules. However, on receiving a letter from the Government of India, Road Transport & Highway regarding restriction on liquor shops on the National Highway, the State Government constituted a Committee in the matter to examine the issue. Decision in the matter is yet to be taken. The Collector could not act on the instruction of the Excise Commissioner which is contrary to the statutory Rules. On coming to know of an order of this Court dated 18.9.2013 in WP(C) No. 19674 of 2013 (Susama Jena Vs. State of Orissa and others) the petitioners applied for intervention, but since no substantive relief could be given on that application, they have filed independent writ petitions. The shops of the petitioners were not on Government land and, thus, the order of the High Court was not applicable to them. The same has been misunderstood. There are 692 liquor shops on National Highway in the State of Orissa, but only in the district of Cuttack closure notice was issued which was unfair and against parity.
3. In the counter affidavit filed by Excise Commissioner, it has been stated that all the Collectors were asked to carry out the order of this Court dated 18.9.2013 upon which 116 liquor shops have been closed throughout the State which include 27 liquor shops in the district of Cuttack and 99 other
