Partly allowed

A.D.Muthappa v. State of Orissa

Orissa HC10 Aug 2016WP(C)/10651/2016

Case brief

AI extract

What is this about?

The Court quashed the State's order rejecting a proposal to open an IMFL shop. It remitted the matter for reconsideration of the Collector's recommendation and the application of relevant policy, directing the State to afford the petitioner an opportunity of hearing.

What did the court decide?

The decision of the State Excise Department was quashed. The matter was remitted to the State to reconsider the petitioner's application and the Collector's recommendation in light of the 18.1.2014 po

Challenge in the writ application has been made to a decision by the State of Orissa, Excise Department dated 28.5.2016 under Annexure-1 by which order the proposal for opening up an IMFL ON shop by the petitioner as recommended by the Collector came to be rejected, inter a lia, on the following grounds:

Whereas, neither the Collector, Nabarangpur nor the Excise Commissioner have indicated the special circumstances basing on which this proposal shall be considered by way of relaxin g of the restrictive clauses available under rule-34 of the Odisha Excise Rules, 1965.

Whereas, most importantly, State Government now insist for shifting of Liquor Shops be yond 50 meters of the Highways in execution of the orders of the Honble High Court and recomme ndation of the Road Safety Committee constituted by the Honble Supreme Court of India.

Learned counsel for the petitioner submits that the application of the petitioner for b eing issued an IMFL ON shop was processed by the Excise authorities in the district and which culminated in a recommendation being made by the Collector, Nabarangpur under his letter da ted 20.2.2016 under Annexure-7 to the writ application. The relevant portion is noted hereunde r: On dated 10.02.2016 had been to Municipality Umerkote and verified the resolution register and found that there is no resolution regarding objection of shifting of IMFL ON shop (Lucky Bar & Restaurant) at Umerkote in Ward No.04. The Chairman and Vice-Chairman simple filed a petitio n also stated that bus-stand and other organization and educational institution situated nearb y proposed IMFL ON shop. In this connection the Executive Office, Umerkote Municipality has

submitted a report that Umerkote Mouza is under concentrated developed area of Umerkote Munic ipality vide his letter No.3593 dt.04.12.2015. The Zilla Parishad President, Nabarangpur and l ocal inhabitants of Ward No.04 of Umerkote Municipality have submitted no objection for shifti ng of the above shop over Khata No.87/339, Plot No.560/91 Umerkote Mouza located on private la nd.

He submits that the State lost sight of the fact that the Collector, Nabarangpur has m ade his recommendation and had indicated special circumstances as would be available from the aforequoted Paragraph and the finding of the State that no special circumstances was stated by the Collector, Nabarangpur is not a fact.

Learned counsel for the petitioner further submits that in- so-far as the location of the proposed IMFL ON shop is concerned, as would be evident from the observations of the Colle ctor, Nabarangpur in the aforementioned paragraph, that the proposed shop is located under con centrated developed area of Umerkote, Municipality. He, therefore, refers to the policy of Sta te of Orissa in the Excise Department dated 18.1.2014 under Annexure-3 in terms of which the f ollowing stipulations have been made; a) IMFL/FL/CS/OS shops should be shifted to 50 meter away from the Highways. Highways mean Nat ional Highway and State Highway and shall not include the part of the National Highway or Stat e Highway which passes within the concentrate developed area of the Municipal Corporation, Mun icipality or NAC or the Urban Local Bodies. On the outskins of a city even if it falls within the municipal limits but it is not a concentrated developed area, the 50 meter rule will apply . No such shops will be allowed on Government land. In future no new shops should be recommend ed along the National Highway.

In terms of the aforesaid policy declaration, since the proposed location of the shop as declared by the Collector being within the concentrated developed area of the Umerkote Mun icipality is not coming within the banned area in terms of the direction of the Honble apex Co urt nor the Honble High Court in the judgments referred to therein. In the present case, where an application for grant of license under the Excise rules h as been filed, it is well settled that the denial thereof would result in depriving a person o f a possible source of livelihood, it is incumbent upon the authorities concerned to proceed in the matter only after affording the applicant (petitioner herein) an opportunity of hearing .

Learned counsel for the State, on the other hand, supports the conclusion arrived at b ut fairly submits that on the basis of recommendations made by the Collector, the Collector ha s noted the reasons in his communication of recommendation and the same ought to have been tak en into consideration by the State and also submits that the policy declaration of the State d

ated 18.1.2014 under Annexure-3 continues to be in force. In the light of the aforesaid circumstances, we have no hesitation in quashing the dec ision of the State (Excise Department) impugned herein under Annexure-1 and remitting the matt er back to the opposite party no.1. We order accordingly with a further direction to the State to reconsider the application of the petitioner as well as the recommendation of the Collecto r and act in terms of the decision taken by the State in its Resolution dated 18.1.2014 under Annexure-3 after affording the petitioner an opportunity of hearing. We hope and trust that op posite party no.1 shall take necessary steps in this matter within a period of one month from the date of receipt of certified copy of this order. Accordingly, the writ application is allowed to the extent as indicated hereinabove. Issue urgent certified copy of this order on proper application. Free copy of this order be handed over to the learned counsel for the State. .. I.Mahanty, J.

A.D.Muthappa v. State of Orissa

Case brief

What is this about?

What did the court decide?

A.D.Muthappa v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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