SHIV PRASAD BHAGAT Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, by means of this writ petition, seeks to quash the order dtd. 1/10/2022 under Annexure-1, by which the Government of Odisha in Excise Department has rejected the representation of the petitioner despite recommendation made by the Commissioner of Excise for re-opening of IMFL 'ON' shop in its existing site, and further to quash the orders dtd. 27/6/2018 and 1/1/2019 under Annexure-2 and Annexure-3 respectively passed by the Government, as well as the order dtd. 25/1/2019 under Annexure-4 passed by the Collector, Angul rejecting the representation of the petitioner regarding relocation of the shop, and further to issue direction to opposite party no.1/Government to grant permit for reopening of the 'ON' shop in its original location, i.e., Mouza-Nisha of Nisha Gram Panchayat in the district of Angul within a stipulated period.

(2.) The factual matrix of the case, in brief, is that the petitioner is the licensee in respect of the IMFL 'ON' (Restaurant) shop at Hotel Modern, Nisha, Angul situated over Plot No.1359/1850 and Khata No.205/420 of Mouza-Nisha, PS-Nisha in the district of Angul. But his 'ON' shop was closed pursuant to decision of the Government in compliance of the judgment dtd. 15/12/2016 of the apex Court in State of Tamilnadu v. K. Balu, (2017) 2 SCC 281, the operative part of which was to the following effect:-

(3.) Mr. P.K. Rath, learned Senior Counsel along with Mr. A. Behera, learned counsel appearing for the petitioner vehemently contended that the rejection of the claim of the petitioner for renewal of his 'ON' shop without giving any opportunity of hearing cannot be sustained in the eye of law. It is further contended that if the shop is permitted to be opened, it is in compliance of the order passed by the apex Court. While rejecting the claim of the petitioner, vide order dtd. 1/10/2022 under Annexure-1, the authority has not applied its mind in proper perspective. Therefore, the said order cannot be sustained in the eye of law. It is further contended that on careful reading of the direction of the apex Court, it appears that the local self government body areas are divided into two parts, i.e, (i) the proximity of an area covered by self-same governing body to municipal agglomeration and (ii) area covered by the local self governing body is sufficiently developed as to application of the same principle. It is further contended that the Government in its wisdom has issued a set of executive instructions dtd. 27/6/2018 on the question of area covered under local self governing body which are in proximity with the municipal corporation and distance factor is provided to be 3 KMs. From the outer limit of the municipal corporation/municipality, provided the area is sufficiently developed as urban area. Therefore, the rejection of the claim of the petitioner has been done in contravention of the directions issued by the apex Court and clarified from time to time. Thereby, the orders so passed by the Government in Annexures-1, 2 and 3 and the Collector, Angul in Annexure-4 cannot be sustained in the eye of law and the same are liable to be quashed.