Khulana Sahoo Vs State of Odisha

01. 1. Aggrieved by notice dated 5^th June, 2025 issued by the Superintendent of Excise, Jagatsinghpur (opposite party No.4) directing the petitioner, Excise Privilege Holder, to take steps for shifting of Atharabanki Country Liquor Shop situated at Ward No.6, Paradeep Municipality, Paradeep, from existing place to an unobjectionable site within two months (Annexure-2), jurisdiction of this Court under Articles 226 and 227 of Constitution of India is invoked on the ground that such notice is without authority in law and issued in contravention of explicit provisions contained in Section 41 of Odisha Excise Act, 2008 (for short, ‘the Act’) and such direction being contrary to the restrictions stipulated under Rule 33 of Odisha Excise Rules, 2017 (for short, ‘the Rules).

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2. Heard Mr. Arun Kumar Patra, learned Advocate for the petitioner and Mr. Subha Bikash Panda, learned Addl. Government Advocate appearing for the opposite parties-State.

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3. It is submitted by Mr. Arun Kumar Patra, learned counsel for the petitioner that on being declared successful in lottery, the petitioner was allowed to operate her Country Liquor Shop at the site approved by the Excise Authority. The license issued for the year 2021-2022 by the Collector, Jagatsinghpur has been extended from time to time and such license is currently valid till the end of fiscal year 2025-26. It is alleged by learned Advocate for the petitioner that though modality prescribed under Section 41 read with Rules 31, 32 and 33 by inviting objection in Form No.VIII, i.e ., Public Notice, has been adhered to prior to grant of licence and renewal of such licence which is operative till 31.03.2026, in the garb of janasunani on receipt of e-Abhijoga filed by one Akshaya Kumar Patra, later to the period specified in the statute, the Notice dated 05.06.2025 suffers infirmity in law. It is argued that the authority having not been conferred with power to exercise jurisdiction to direct shifting of Country Liquor Shop during the subsistence of licence more particularly on the basis of objection received by stranger beyond the period stipulated in the statute, the Notice impugned cannot be held to be tenable in the eye of law.

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3 . 1. Relying on judgment dated 8^th September, 2025 of this Court rendered in Sri Sandeep Raiguru v. State of Odisha and others , W.P. (C) No.23046 of 2025 he would submit that it is mandatory to adhere to procedures laid down in Section 41 of the Odisha Excise Act, 2008 read with Rules 31, 32 and 33 of the Odisha Excise Rules, 2017 and infraction of conditions envisaged therein and non-adherence to time-frame stipulated in the provisions would render the decision of the authority vitiated; so also the notice.

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4. Perusal of material forming part of the writ petition would indicate that the licence for retail vend of Country Liquor supplied from the warehouse or duty paid depot issued in Form No.CS-1 by the Department of Excise remains valid till 31.03.2026. Notice dated 05.06.2025 appears to have been issued on the basis of complaint received in the portal after the objection period contemplated under Section 41 read with Rules 31, 32 and 33.

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4.1. In the case of Sandeep Raiguru (supra) this Court having taken cognizance of aforesaid provisions juxtaposed with Section 26 and Section 37 and Rule 53 held as follows:

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“5. On the backdrop of the aforesaid facts and the submissions so advanced, the pivotal issue involved in the instant writ petition is whether the Collector or the Superintendent of Excise is competent enough to pass an order/direction for shifting of IMFL OFF Shop from the existing site to an unobjectionable site in the midst of the currency of a license granted after complying with all the statutory provisions provided in the parent Act as well as the Rules framed thereunder.

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***

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5.3. Section 37 of the Act contained in Chapter VI, which is relatable to “Licenses, Permits and Passes”, postulates that before the expiration of every period for which the existing licenses for the retail sale of spirit or tari are in force, it is imperative on the Collector to prepare a list in a prescribed manner indicating the kind of licenses proposed to be granted for consumption in the vendor‟s premises for the next period of settlement. The said Section 37 is quoted hereunder: ***

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5.4. From the language used in the said Section, it is aptly clear that the said provision is not restricted to grant of new license, but has expanded its applicability to a case of renewal of a license at the existing site. Though Ms. Dash, learned ASC has invited the attention of the Court to the aforesaid provision to have its applicability in the present fact situation, we do not find that the said section has any applicability to the license which is issued for selling the spirit outside the vendor‟s premises. The said provision has its applicability to an IMFL ON Shop license, which would further be strengthened from the

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expression „for consumption in the vendor‟s premises‟ and not in relation to a license where the consumption is not permitted within the vendor‟s premises.

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***

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5.7. Rule 31 provides for different steps to be taken before a final decision is taken either to grant a fresh license or to renew the same for the next coming year which also includes the objections, if any, filed by the villagers or inhabitants of the local area. In order to ensure strict compliance thereof, Rule 32 makes it imperative to cause the copy of the extract to be affixed in a conspicuous place, i.e., the office notice board of the local body so that objection, if any, may be filed within the specified time.

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5.8. Rule 33 has been pressed into action by Mr. Prafulla Kumar Rath, learned Senior Counsel in support of his contention that the objection has to be filed within the statutory period provided under this rule and any objection, if filed, is to be dealt with by the authority in proceeding to grant the license or to renew the license, but subsequent objection cannot be entertained.

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***

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5.10. Sub-rule (1) of Rule 33 contained the provision relating to any objection filed at a particular time contemplated under Rule 30 or Rule 31 to be sent to the Collector in a prescribed form for taking a conscious decision thereupon. Sub-rule (2) of Rule 33, in our opinion, as heavily pressed into action by Mr. Prafulla Kumar Rath, Senior Advocate clearly indicates that any objection or suggestion received after the notified period shall be summarily rejected.

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5.11. The cumulative effect of the provisions contained in Rules 30 to 33 exposit that at the time of granting the license or renewal thereof, the notices to be issued, to be affixed in a conspicuous part of the office of the local body; objections, if any, so received and above all, a conscious and/or positive decision should be taken upon the said objections before the authority embark its journey on the peripheral of granting a new license or renewal of the license for the next coming year.

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5.12. The moment, the objections are dealt with or in the event, no objection is filed, sub-rule (2) of Rule 33 creates a complete embargo in entertaining any objection subsequently filed. The language used in sub-rule (2) or Rule 33 is suggestive of the fact that no objection subsequent to the notified period shall be entertained

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and/or permitted to be taken on record as the same is liable to be summarily rejected.

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5.13. The composite reading of the aforesaid provisions indicates that the moment the license is granted for the first time or the renewal is effected, the objection coming within the purview of Rule 30 or 31 is liable to be summarily rejected as the authorities cannot suo motu extend the statutory period of notice provided in the statutory form and keep the disputes alive for all time to come.

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5.14. Once the legislature has used a timeline within which the action is to be taken or perceived to be taken, it eradicates the powers of the authorities to suo motu extend the said statutory period by entertaining any objection filed beyond the stipulated time provided in the statute or the statutory rules. The importance of providing the time limit within which the steps are to be taken to ensure not only timely decisions to be taken but to eradicate any subsequent objections to be entertained in order to give certainty into the rights and avoid any right to remain in lurch. The embargo created in sub-rule (2) of Rule 33 is imperative and mandatory in nature which would further be corroborated by the use of the word

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„shall‟ therein.

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***

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6. The matter can be viewed from another angle that once the license is granted by a competent authority, the right to trade or business becomes absolute into a person, subject, however, to such restrictions to be imposed in this regard and such right cannot be taken away in extending the period of an objection and frustrating the purpose of fixing such timeline within the statutory provision.

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6.1. The discussion as made hereinabove leads to an inescapable conclusion that the authority cannot entertain the objection filed after the expiration of the statutory period provided in Rule 32 and should have summarily rejected the same having filed beyond the said timeline under sub-rule (2) of Rule 33 of the said Rules.

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6.2. Though a plea is taken by the petitioner that the Collector has no authority to pass an order for shifting of the shop from the existing site to another site, we do not find substance in the said objection as such power to direct shifting of the shop for any reason is vested upon the Collector subject to the approval by the Commissioner. Since the issue whether any order can be

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passed for shifting the shop from the existing site to another site on the basis of the objection raised by the villagers has been discussed hereinabove and we find that such objection cannot be entertained after the statutory period expires and the renewal of the license is granted. We do not intend to dilate much on such issue and keep it open to be discussed in an appropriate case in future.”

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5. In the aforesaid perspective of enunciation of law in Sri Sandeep Raiguru (supra), this Court is of the view that the notice dated 5^th June, 2025 cannot be sustained and therefore, the impugned notice is liable to be interfered with.

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5.1. Ergo , the impugned Notice dated 5^th June, 2025 issued by the Superintendent of Excise, Jagatsinghpur (opposite party No.4) is set aside.

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6. The writ petition is accordingly disposed of and pending interlocutory application(s), if any, shall stand disposed of.

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Bichi

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Signature Not Verified

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Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 30-Oct-2025 20:09:48

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Khulana Sahoo v. State of Odisha

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Khulana Sahoo v. State of Odisha

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