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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 ..... -cum-Secretary in his recommendation to the Minister of Excise and Tourism had not specifically referred to clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to state here that it is perceptible from the note sheet that the Secretary had referred to the proposal received from the Collector, endorsement made by the Excise Commissioner, the objections raised by the objectors and also expressed the view that the said objections were devoid of merit and, accordingly, recommended for approval. The cumulative effect of the note sheet goes a long way to show that every authority was aware of the distance and recommended for relaxation of clauses (d) and (e) of sub-rule (1) of Rule 34 and the concerned Minister had endorsed the same. Non-mentioning of the Rule or sub-rule, does not tantamount to non-passing of an order. The dominant test has to be the application of mind to the relevant facts. The second part of the order, if properly appreciated, conveys that no reasons have been ascribed. The proviso to Rule 34(1) lays a postulate that the distance as mentioned under clauses (d) and (e) may be relaxed by the State Government in special circumstances. The recommendations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant 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 2008-09. Be it noted, in a similar manner relaxation was granted for opening of the IMFL/Beer ( ON shop) at Hotel Sawadia for the period from 2.3.2009 to 31.3.2009. 4. Being grieved by the grant of said licences, the first respondent invoked the jurisdiction of the High Court under Article 226 of the Constitution principally contending that the report submitted by the Excise Inspector with regard to certain as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 educational institution, established habitant especially of persons belonging to scheduled castes and labour colony, mills and factories, petrol pumps, railway stations/yard, bus stands, agricultural farms or other places of public resort, or e) within at least one kilometer from industrial, irrigation and other development projects areas, or f) in the congested portion of a village : Provided that the restriction on the minimum distance as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shop. As far as grant of beer parlour ON shop in favour of Ropan Sahoo is concerned, the communication vide memo No. 1161/Ex. dated 2.3.2009 is as follows: - In inviting a reference to your letter No. 1380 dt. 25.02.09 on the subject cited above, I am directed to say that Govt. after careful consideration have been pleased to sanction Beer Parlour ON shop Licence in favour of Sri Ropna Sahoo over Plot No. 1391/2260, Khata No. 393/330 in Ward No. 16 of Bargarh Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjected. 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 premises of Hotel 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 the year 2008-09 by relaxing rule 34 of Orissa Excise Rules, 1965 and MGQ fixed as per the Excise Duty, Fee Structure and Guidelines for 2008-09. The District Excise Administration may be held responsible if the existing nearby excise shops are affected by the new ON shop. 14. The Commissioner-cum-Secretary to Government, Excise Department, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Excise has endorsed the same and the Minister, Excise and Tourism has signed in approval thereof and thereafter the movement of the file took place. On the basis of the aforesaid orders the communications have been sent. 18. On a keen scrutiny of the entire note sheet we have no hesitation in our mind that the Commissioner-cum-Secretary had accepted the recommendations of the Collector and the Excise Commissioner, and upon perusal of the note sheet of the Joint Secretary had recommended for consideration and approval by the Minister of Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government Rules of Business made under Article 166 of the Constitution confers the power on the Minister to pass an order in respect of a matter pertaining to his portfolio. The effect of such a delegation has been dealt with by a three-Judge Bench in Narmada Bachao Andolan v. State of Madhya Pradesh[AIR 2011 SC 3199 ] wherein it has been held that: - The decision of any Minister or Officer under the Rules of Business made under Articles 77(3) and 166(3) of the Constitution is the decision of the President or the Governor respectively and these Articles do not provide f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specifically referred to clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to state here that it is perceptible from the note sheet that the Secretary had referred to the proposal received from the Collector, endorsement made by the Excise Commissioner, the objections raised by the objectors and also expressed the view that the said objections were devoid of merit and, accordingly, recommended for approval. The cumulative effect of the note sheet goes a long way to show that every authority was aware of the distance and recommended for relaxation of clauses (d) and (e) of sub-rule (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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