GOPINATH SAHU Vs. STATE OF ORISSA
HIGH COURT OF ORISSA
STATE OF ORISSA
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(1.) All these writ petitions are founded on identical facts and raise a common question of law whether the Government of Orissa in its Department of Excise can insist on furnishing Bank Guarantee, instead of Solvency certificate, for grant or renewal of Excise Licenses in respect of IMFL 'ON' Shops/IMFL 'OFF' Shops, Beer Parlour ON shops, CL Shops/OS Shops, retail vend of IMFL, country spirit, fermented Tari, Pachwai and Bhang etc. As agreed upon by learned counsel for the parties, all writ petitions were taken up together for analogous hearing and passing a common judgment and order.
(2.) Under challenge in all these writ petitions is the letter No.2009 dated 30.03.2020 addressed by the Additional Secretary to Government, Government of Odisha, Department of Excise to the Excise Commissioner, Odisha conveying that the Revenue and Disaster Management Department as per their order No.465 dated 02.01.2020 has decided to phase out issue of Solvency certificate by Revenue Authorities for grant or renewal of excise licenses and therefore insisted on producing for Bank Guarantee in lieu thereof for renewal and issuance of license. Since W.P.(C) No.12518 of 2020 has been taken up as the leading case, we shall briefly narrate the averments made therein to examine legality of the impugned action of the State Authorities. The petitioner in this case is a licensee in respect of Sikula IMFL Shop. The license was originally issued to him under the Bihar and Odisha Excise Act and the rules made thereunder. However, the license in the year 2017 was issued under the Odisha Excise Act 2008 (for short, "the 2008 Act"). The petitioner has been paying monthly consideration amount along with other statutory dues for issuance of license. Copy of the license of the year 2019-20 has been produced on record. It is contended that the State Government in the Department of Excise vide order No.2003 dated 28.03.2020 renewed the different excise licenses for the 1st quarter of the financial year 2020- 21. While the excise licenses are renewed automatically, the Government made changes in rates and guidelines as applicable. The Government in the aforesaid order mentioned that all excise Duty and Margin Structure along with Regulatory Guidelines, which are not mentioned specifically in the order, would continue as per the policy of the year 2019-20. When the petitioner submitted documents along with Solvency certificate for renewal of license as required under Rule 51 read with Rule 150 of the Odisha Excise Rule 2017 (for short, "the Rules of 2017"), the Competent Authority refused to receive the same and required the petitioner to submit the documents along with Bank Guarantee and not the Solvency certificate. It has been contended that the State Government in its Revenue and Disaster Management Department vide order No.465 dated 02.01.2020 directed to phase out the practice of issuing of Solvency certificates and instructed all the department not to ask for such certificate for grant of any kind of license, such as license to storage agents, grant or renewal of Excise License, query license, etc. and advised them to insist on producing IT Returns or Bank Guarantee, etc. for issuance of license. The Excise Department of the Government of Orissa accordingly vide impugned letter dated 30.03.2020 directed the authorities to substitute Solvency certificate by Bank Guarantee.
(3.) Learned counsel for the petitioners submitted that the Government of Orissa by the aforesaid letter dated 30.03.2020 cannot supersede or override the statutory provisions contained in Rule 51 and Rule 150 of the Rules of 2017. Rule 51 inter alia provides that an application for grant of license of Foreign Liquor or IMFL or Beer "ON" shops shall be submitted in Form XI-B and such application shall be accompanied by the documents enumerated in sub-rule (2) thereof, in clause (e) of which it is mentioned that attested copy of Solvency certificate indicating the solvency of the applicant to the extent of three lakhs rupees shall be furnished. Rule 51 being statutory rule, the impugned order dated 30.03.2020, which is an executive instruction, has to yield to it. Rule 150 of the Rules of 2017 also provides for furnishing Solvency certificate for license of retail vend of IMFL, country spirit, fermented Tari, pachwai and Bhang. It is contended that the Rules of 2017 have been framed by the State Government in exercise of powers conferred upon it under Section 90 read with Section 94 of the 2008 Act, which have been published in the Odisha Gazette dated 10.03.2017. It is settled principle of law that a statutory provision of law or the Rules cannot be overridden by the executive instructions and in the event of conflict, the former will prevail. It is contended that Solvency certificates are issued under Rule-3 of the Odisha Miscellaneous Certificate Rule 2017 (for short, "the Certificate Rules"). Rule-4 thereof provides that a person desirous of obtaining Solvency certificate would apply to the Revenue Officer concerned. Such application should be accompanied by an affidavit sworn in before a Magistrate incorporating the details of immovable properties, the income and source thereof. The Revenue authority on receipt of the application shall cause an enquiry and scrutinize the documents furnished by the applicant. After verification, the Sub- Divisional Officer by invoking power under Rule-3 of the Certificate Rules is competent to grant a Solvency certificate. It is therefore prayed that the writ of mandamus may be issued in the terms as prayed for and the impugned order of the Government of Orissa dated 30.03.2020 be quashed and set aside.;
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