DIPAK MISRA, J. - (1.) LEAVE granted in both the special leave petitions.
(2.) QUESTIONING the legal acceptability of the order dated 16.9.2009 passed by the Division Bench of the High Court Orissa at Cuttack in WP(C) No. 3913 of 2009 whereby the High Court entertained the writ petition preferred by the first respondent herein and quashed the grant of exclusive privilege and the licence granted in favour of Ropan Sahoo and Mukesh Kumar, the respondent Nos. 5 and 6 in the writ petition, the present appeals have been preferred by the grieved persons as well as by the State. Shorn of unnecessary details the facts which are requisite to be stated are that Mukesh Kumar, the respondent No. 6 before the High Court, had submitted an application for grant of licence to open an IMFL "Off " shop in Ward No. 16, Bargarh Town for the year 2007-08 on 28.1.2008. As 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 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.
(3.) 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 aspects, namely, location of the bathing ghat, etc. were not factually correct; that the recommendations made by the authorities were highly improper and unwarranted; and that the relaxation had been granted in an extremely arbitrary manner and, therefore, the grant of exclusive privilege and the licence deserved to be axed. The High Court perused the documents brought on record, called for the record to satisfy itself in what manner the power of relaxation was exercised, and after perusal of the record and on consideration of to various recommendations, came to hold that as far as the respondent No. 5 was concerned for sanction of a beer parlour 'ON ' shop licence for the remaining period of 2008-09, no order was passed relaxing the Rules before the grant of exclusive privilege. As far as the sanction of IMFL Restaurant licence in respect of 6th respondent was concerned, the High Court expressed the similar view. We think it apt to reproduce the ultimate conclusion recorded by the High Court: - "13. Proviso to Rule 34 specifically prescribes that restriction on the minimum distance as mentioned in Clause (d) and (e) may be relaxed by the State Government in special circumstances. There being no order by the State Government relaxing the aforesaid two Clauses in relation to the minimum distance between the proposed shops and the place of worship i.e. the Vishnu Temple, petrol pump and bus stand, the order of the State Government approving the sanction/grant of exclusive privilege in favour of opposite parties 5 and 6 cannot be sustained in law. " ;