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TMI Blog2013 (1) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... a report was submitted that the proposed site was violative of sub-rule 1(c) of Rule 34 of Orissa Excise Rules, 1965 (for short "the Rules"), the said respondent chose to withdraw the application for the aforesaid year by indicating personal reasons. In respect of the next financial year he again submitted an application for grant of licence at the same place. The Collector, Bargarh, invited objections and pursuant to the same the writ petitioner filed his objection on 18.10.2008. The Inspector of Excise submitted a report on 2.2.2009 stating about the existence of a bathing ghat, Vishnu temple, bus stand and petrol pump within the prohibited distance, but recommended for relaxation of restrictions. The Collector, Bargarh, recommended for opening of the shop for remaining part of the year 2008-09 in relaxation of the restrictions and the Excise Commissioner also recommended to the Government on 19.2.2009 for sanction by relaxing of the restrictions. As the factual matrix would reveal, the State Government on the basis of the recommendations invoked the power of relaxation under Rule 34 of the Rules and granted licence in favour of the said respondent for the remaining period of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the aforesaid view, the High Court quashed the privileges and the licences granted in favour of the private respondents therein. 7. We have heard Mr. Bhaskar P. Gupta, learned senior counsel for the beneficiaries of the grant, Mrs. Kirti Renu Mishra, learned counsel for the State and Mr. G. Ramakrishna Prasad, learned counsel appearing for the respondent No. 1 in both the appeals. 8. At the very outset we may note that it is the admitted position that both the proposed sites come within the prohibited area as envisaged under Rule 34(1)(d) and (e) of the Rules. Rule 34 of the Rules stipulates that the places in respect of which licences for consumption of liquor on vendor's premises should not be granted. The said Rule reads as follows: - "34. Licences for shops for consumption of liquor on vendor's premises not to be granted at certain places : (1) No new shop shall be licensed for the consumption of liquor on the vender, premises - a) in a marketplace, or b) at the entrance to market place, or c) in close proximity to a bathing-ghat, or d) within at least five hundred meters from a place of worship, recognized educationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Sawadia Palace', Ward No. 11, Bargarh Municipality over Plot No. 1622, Khata No. 2542/362, in the district of Bargarh for the remaining period of 2008-09 and also the memo No. 1161/Ex. dated 2.3.2009 in respect of Beer Parlour "ON" shop licence in favour of Ropan Sahoo over Plot No. 1391/2260, Khata No. 393 in Ward No. 16 of Bargarh Municipality, in the district of Bargarh for the remaining period of 2008-09. The communication that has been made in favour of Mukesh Kumar reads as follows: - "In inviting a reference to your letter No. 1214 dt. 19.2.09 on the subject cited above, I am directed to say that Govt. after careful consideration have been pleased to grant IMFL Restaurant "ON" shop Licence in favour of Sri Mukesh Kumar at "RASSOI RESTAURANT" in the premises of Hotel "Sawadia Palace", Ward No. 11, Baragarh Municipality over Plot No. 1622, Khata No. 2542/362, in the district of Baragarh for the remaining period of 2008-09 by relaxing rule 34 of the Orissa Excise Rules, 1965 and fixation of MGQ as per Excise Duty, Fee Structure and Guidelines for 2008-09. The Excise Administration may be held responsible if the existing nearby excise shops are affected by the new "ON" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal liquor cases have been booked in the nearby area and hence, there is demand for the "ON" shop. The apprehension that the existing IMFL "OFF" shop will be affected after opening of the proposed "ON" shop is ruled out, because the consumers of "OFF" shop are different from "ON" shop. The customers of "ON" shop has to consume liquor inside the Hotel premises with peg system and pay service charge, whereas such a facility is not available with "OFF" shops. Besides, the bathing ghat is not nearby as objected. But only one irrigation canal is flowing at a distance of about 50 meters. Therefore, Collector has recommended for relaxation of rule 34 of Orissa Excise Rules, 1965 for sanction of the proposal in the interest of Govt. revenue and to check illegal liquor trade." 13. The objections of A.K. Sharma and that of the Secretary, Human Society, Bargarh have also been considered. Thereafter, the Joint Secretary has recommended thus: - "In the above circumstances and in view of recommendation of the Excise Commissioner, Orissa, Cuttack, it may kindly be considered to grant IMFL Restaurant "ON" shop licence in favour of Sri Mukesh Kumar at "Rasooi Restaurant" in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire town area having population of more than one lakh. There is feasibility and potentiality for opening of the Beer Parlour 'ON' shop, since illegal sale of liquor has been detected in the area. The proposed shop will check illicit trade of liquor. He has also stated that the opening of new Beer Parlour will not affect the nearby IMFL shops in the Municipality." 16. The Joint Secretary after referring to the objections and the recommendations of the Excise Commissioner has passed the following order in the note sheet: - "In the above circumstances and in view of recommendation of the Excise Commissioner, Orissa, Cuttack, it may kindly be considered to sanction Beer Parlour 'ON' shop licence in favour of Sri Ropna Sahu over plot No. 1391/2260, Khata No. 393/330 in Ward No.16 of Bargarh Municipality in the district of Bargarh for the remaining period of 2008-09 subject to condition that the district excise officials will be held responsible if the nearby existing shops are affected by opening of the new shop. Government orders may kindly be obtained in the matter." 17. Thereafter, the Commissioner-cum-Secretary to Government in the Department of Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the record as noted by the High Court, that the file had been pending with the Minister for some time and despite expressions of urgency, the Minister did not sign the file since he was busy with "elections and other important matters". What the High Court has overlooked is that the relevant file was again placed before the Minister on 30.8.1999 by JS&FA with a note which stated that Tafcon had been appointed as the "Event Manager" for three years. This was signed by the Minister with the endorsement "file returned". 13. The High Court deduced from this signature of the Minister that no approval was in fact granted by him to the appointment of M/s. Tafcon either expressly or impliedly. We are unable to agree. Where the Minister has signed the various notes put up before him seeking his approval, his signature, without more, must mean that he has approved the steps taken by the Department." 19. Be it noted, in the said case, the Court referred to Rule 3 of the Transaction of Business Rules, 1961 which provided for all business to be conducted on general or special directions of the Minister-in- charge. 20. In the case at hand, Rule 7 of the Orissa Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority in the department, gets his approval and the final order is communicated to the person concerned." 23. In State of West Bengal v. M. R. Mondal and another[AIR 2001 SC 3471] it has also been held that an order passed on the file and not communicated is non- existent in the eye of law. 24. In the present case it is luminous that the file had travelled to the concerned Joint Secretary of department who had communicated the order. The High Court has opined that there is no order by the State Government relaxing the restrictions enshrined in clauses (d) and (e) of Rule 34(1) of the Rules in relation to the minimum distance between the proposed shops and the Vishnu Temple, petrol pump and bus stand and at a latter part of the judgment has expressed the opinion that there has been infraction of statutory Rule, namely, Rule 34 which casts a statutory duty on the department to pass on order with reasons relaxing the restrictions. We are disposed to think that the High Court, as far as the first part of the opinion is concerned, has been guided by the factum that the Commissioner-cum-Secretary in his recommendation to the Minister of Excise and Tourism had not spec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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