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Judgment
131 paragraphs · 10,627 wordsMurahari Sri Raman, J.—
THE CHALLENGE:
Aggrieved by rejection of proposal for opening of IMFL “ON” Shop in connection with application made regarding the excise year 2022-23 vide Order No.3779-EXC-POL2-POL2-0125-2023/Ex., Dated 29.05.2023 issued by the Government of Odisha in Excise Department, the petitioner has approached this Court invoking provisions under Articles 226 and 227 of the Constitution of India seeking for grant of following relief(s):
“***
Issue writ/writs in the nature of certiorari/mandamus and/or any other further writ/direction And set aside the Order No.3779, dated 29.05.2023 issued by the opposite party No.1 under Annexure-1
And strike down Clause 4.2.3(I) of Excise Policy 2023-24
And also be pleased to quash Annexure-2
And direct the opposite party/State Authorities to consider and grant “ON” Shop license in favour of the petitioner as has been done in case of other 56 numbers of cases pursuant to the list under Annexure-5, witihin a stipulated period. ***”
FACTS OF THE CASE:
Facts as adumbrated by the petitioner-The Lotus Restaurant in W.P.(C) No.19873 of 2023 reveals that for the excise year 2022-23 application attaching required documents and enclosing thereto evidence of deposit showing application fees of Rs.1,10,000/- (rupees one lakh ten thousand) was made for the purpose of grant of “ON” Shop license over Plot No./Ward No.616/1954, 613/1929, 612/1930, Mouza: Jagapur, P.S.: Golanthara, Berhampur in the District of Ganjam.
2.1. Though Inspector of Excise, Chikiti Range reported that the proposed site violates provisions of Rule 26 of the Odisha Excise Rules, 2017 (for brevity, “OE Rules”), submitted feasibility report dated 03.11.2022 stating that the site appears to be suitable for IMFL “ON” Shop (with lodging). Accordingly, the matter was recommended to the State Government.
2.2. As required under Rules 31(a), 33(1) and 51(6) of the OE Rules, Notice dated 19.11.2022 in Form-VIII inviting objection was published and in pursuance thereto, no objection being received within the period stipulated therein, the Superintendent of Excise, Berhampur vide Letter No.2906, dated 16.12.2022 intimated the Inspector of Excise, Chikiti to submit report with regard to present status of the proposed Shop. Accordingly, compliance dated 20.01.2023 was made by the Inspector of Excise stating that the petitioner be directed to complete its renovation work at the earliest and it was reported that “the restaurant and lodging” was not functional on the proposed location.
2.3. It is the claim of the petitioner that having fulfilled the requirement(s) pointed out in the report, the Collector, Ganjam recommended the matter to the Excise Commissioner, Odisha in conformity with Rule 51 of the OE Rules. It is alleged by the petitioner that though recommendations were made to relax invoking power conferred under Rule 51(7) for the violations/ restrictions/objections contained in Rule 26 of the OE Rules, the State Government instead of allowing the application rejected the same.
2.4. Hence, the petitioner questioned the propriety of such rejection of application for grant of IMFL “ON” Shop license vide Order dated 29.05.2023 (Annexure-2) rejecting the proposal for opening of IMFL “ON” Shop for the excise year 2022-23 assigning reason of violation of provisions of the Excise Policy, 2023-24.
2.5. It is contended that rejection of application adhering to the restriction contained in the Excise Policy, 2023-24 is misconceived inasmuch as the proposal for grant of IMFL “ON” Shop license in question was relating to the Excise Policy, 2022-23 and the consideration of pending application as on 31.03.2023 got extended at the behest of the Government of Odisha till 26.06.2023 vide Excise Department Letter No.2407-EXC-POL-POL-0009-2023/Ex., dated 27.03.2023.
THE REPLIES OF THE OPPOSITE PARTIES:
It is submitted by the opposite parties that as per Clause 4.2.3(I) of the Excise Policy 2023-24 “no new application for ON Shop license shall be accepted for rural area in 2023-24. In urban areas new ON Shop license can be granted for only star hotels and hotels having such minimum number of rooms to be decided by Excise Department”. It is affirmed by the opposite parties that in order to ensure better regulation and to curb the growth of “ON” Shops such policy decision has been taken, which applies to the entire State of Odisha. Said Excise Policy, 2023-24 being implemented with effect from 01.04.2023, no infirmity or arbitrariness in taking decision to reject application can be imputed by the petitioner.
3.1. The place in respect of which the petitioner has intended to have “ON” Shop License attracts vice of Rule 26(1) of the OE Rules, 2017. Though consideration of pending application as on 31.03.2023 for proposed “ON” Shop licence made with respect to Excise Policy, 2022-23 got extended for further period of three months, i.e., till 26.06.2023 vide Order dated 27.03.2023 (Annexure-3), it does not clothe the petitioner with right to insist for grant of license. Mere filing of application for grant of license does not vest any right in the petitioner to be considered favourably by the competent authority.
3.2. It is pleaded by the opposite parties that the Excise Policy, 2023-24 having been made effective from 01.04.2023, it was appropriate for the State Government to refer to such policy to reject the case of the petitioner as the subsequent policy decision, being in the larger public interest, embedded in clause 4.2.3(I) of the Excise Policy 2023-24 restricted “new application for “ON” Shop license” to be accepted “for rural areas in 2023-24” and so far as urban areas are concerned such license is acceptable for “only star hotels and other hotels having minimum number of rooms to be decided by Excise Department”. In view of such new policy the claim of the petitioner does not deserve consideration.
3.3. It is submitted by the opposite parties that the provisions contained in Sections 37 to 42 of the Odisha Excise Act, 2008 read with Part-I, Part-II and Part-IV of Chapter-III and Rule 51 under Chapter-V of the OE Rules authorise the authorities/State Government to regulate grant of “ON” Shop licenses including the number of licenses to be granted.
3.4. It is clarified by the opposite parties that no assurance was given by the State Government or the functionaries to consider favourably the application submitted during the year 2022-23, which remained pending beyond 31.03.2023. Taking cue from Clause 5(II) of the Excise Policy 2022-23— “this policy is subject to changes, if any, due to Court directions or as decided by State from time to time”, the opposite parties submitted that the policy was “amenable to change” and, therefore, as the new Excise Policy, 2023-24 has been made effective from 01.04.2023, while rejecting the application for grant of license in respect of “ON” Shop under Excise Policy, 2022-23, subsequent policy could be taken aid of by the State Government for declining to relax the deficiency pointed out in terms of Rule 26 of the OE Rules. The rejection of application submitted during the year 2022-23 is stated to be just and proper.
3.5. It is also submitted by the opposite parties that on enquiry conducted by Inspector of Excise certain incorrect information/deficiencies was found for which the petitioner applied for correction of application during June, 2022. Since new Excise Policy 2023-24 has been brought into force with effect from 1st April, 2023, there
is justification to place reliance on Clause 4.2.3(I) of the Excise Policy 2023-24. The rejection of application for grant of “ON” Shop license in the rural area/the urban area has correctly been decided by the competent authority in the Government.
HEARING OF THE WRIT PETITION:
This matter was on board on 18.03.2024 under the heading “Admission” along with other connected bunch of matters involving identical issue(s). It is stated at the Bar that 31st March, 2024 is fast approaching and the Excise Policy, 2023-24 would come to an end on the said date. These matters are required to be heard and disposed of finally at this stage, lest they would be rendered infructuous. At the outset, it is conceded by counsel appearing for the petitioners in the batch of matters that the narration of facts and plea taken in W.P.(C) No.19873 of 2023 be taken as the lead case and the decision taken therein would abide all other cases tagged thereto. Therefore, this Court heard the matter for final disposal.
4.1. Heard Sri Prafulla Kumar Rath, learned Senior Advocate along with Sri Saibrata Rath, Sri Adhiraj Behera and Sri Rajjit Roy, learned Advocates for the petitioner(s) and Sri Lalatendu Samantaray, learned Additional Government Advocate appearing for the opposite parties.
4.2. At the beginning of the argument, Sri Prafulla Kumar Rath, learned Senior Counsel for the petitioner seeks permission not to press the prayer to “strike down clause 4.2.3(I) of the Excise Policy 2023-24”, as this Court has already dealt with validity of said Clause in Laxmipriya Kar Vrs. State of Orissa and others, W.P.(C) No.4152 of 2024 vide Order 04.03.2024. Therefore, this Court on 18.03.2024 has passed the following Order in the present writ petition:
“2. Mr. Prafulla Kumar Rath, learned Senior Counsel and the learned counsel representing the petitioners in the present batch of writ petitions, in the light of the Division Bench decision dated 04.03.2024 passed in W.P.(C) No.4152 of 2024 (Laxmipriya Kar Vrs. State of Orissa and others), submits that they shall not be pressing the relief as regards the validity of clause 4.2.3(I) of the Odisha Excise Policy for the excise year 2023-24. They, however, submit that there are other issues involved which they would address.
Heard the learned counsel for the parties.
Hearing being concluded, list this matter on 27.03.2024 for delivery of orders/judgment.”
4.3. This Court, hence, heard the learned Senior Counsel and the learned Additional Government Advocate appearing for respective parties on issues other than the challenge as to validity of Clause 4.2.3(I) of the Excise Policy, 2023-24.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
Sri Prafulla Kumar Rath, learned Senior Advocate for the petitioner submitted that out of the three issues raised in the present batch of matters, the aforesaid issue being not pressed, the following issues survive for consideration, which are culled out in convenience compilation dated 18.03.2024:
“(ii) Whether there is any amount of violation of Excise Policy, 2023-24?
(iii) Whether the Order passed by the opposite party No.1 rejecting the application of the year 2022-23 taking help of 2023-24 Policy; while sanctioning and granting license of 56 numbers of similarly placed applicants of 2022-23 is discriminatory, thereby violative of Article 14 of Constitution of India?”
5.1. It is submitted by Sri Prafulla Kumar Rath, learned Senior Counsel that the order of rejection of application for grant of license to open IMFL “ON” Shop for the year 2022-23 ought not to have been rejected referring to Clause 4.2.3(I) of the Excise Policy, 2023-24. Such rejection indicates non-germane consideration and non-application of mind on the part of the authority concerned. It is contended by the Senior Counsel that the Excise Commissioner, Odisha recommended the case of the petitioner to State Government for consideration by invoking provision for relaxation conferred under Rule 26 of the OE Rules. Since the matter was kept pending in respect of application submitted during the Excise Year 2022-23 and the Government of Odisha extended the period till 26.06.2023 by Letter dated 2407— EXC-POL-POL-0009-2023/Ex., dated 27.03.2023 taking recourse of aforesaid Clause 4.2.3(I) of Excise Policy for the year 2023-24 is untenable in the eye of law.
5.2. Placing reliance on State of Madhya Pradesh Vrs. Nandlal Jaiswal, (1986) 4 SCC 566 = AIR 1987 SC 251, he submitted that since cases of similarly circumstanced persons/applicants have been considered favourably, the State Government should not have discriminated the present petitioner(s).
5.3. Relying on what is spelt out at paragraph 33 of aforesaid Judgment in Nandlal Jaiswal (supra), Sri Prafulla Kumar Rath submitted that no one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. He further relied on said Judgment wherein it is stated that “when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14”.
5.4. With reference to Beg Raj Singh Vrs. State of U.P., (2003) 1 SCC 726 (paragraph 7) the learned Senior Counsel amplified his argument by stating that the petitioner had approached this Court at right point of time and the matter has been kept pending. Therefore, as the rights are crystallised on the date of commencement of litigation, the relief should be decided by reference to the date on which the petitioner entered the portals of the Court. Thus, Sri Prafulla Kumar Rath, learned Senior Advocate has submitted vehemently that subsequent or intervening events, i.e., the events after submission of application could not have been taken into consideration in this regard.
5.5. It is, therefore, submitted by the learned Senior Counsel that the reason assigned by the State Government for rejecting the application in question is unwholesome, untenable and irrational.
5.6. Sri Prafulla Kumar Rath, learned Senior Counsel referred to Order dated 18.08.2020 of this Court passed in W.P.(C) No.13514 of 2020 (Arabinda Senapati Vrs. State of Odisha), and contended that this Court held in the said case that the writ petition would not get infructuous notwithstanding the fact that the application for the Excise Year 2019-20 had already been expired. This Court, in such circumstances, directed for consideration “whether license for IMFL”ON” Shop should be granted or not to the petitioner for the year 2020-21 instead of 2019-20”.
5.7. Winding up his arguments, Sri Prafulla Kumar Rath, learned Senior Advocate fervently prayed to allow the writ petition on the grounds agitated and direct the opposite parties to consider the cases individually.
Sri Rajjit Roy, learned advocate appearing in W.P.(C) No. 20345 of 2023 (Janmejaya Sahoo Vrs. State of Odisha) supplemented Sri Prafulla Kumar Rath, Senior Advocate by urging that a writ of mandamus can now be issued to grant license as the petitioner has made application during the period 2022-23 which was kept pending. He further submitted that in the event it is found that the license was to be granted by the State Government in favour of the petitioner(s), an appropriate direction could be issued for grant of license inasmuch as the day the petitioner approached this Court the rights have already been crystallised.
Per contra, Sri Lalatendu Samantaray, learned Additional Government Advocate for the State-opposite parties submitted that the Government is justified in rejecting the application in view of new policy for the year 2023-24, which came into force with effect from 01.04.2023, whereunder there has been complete restriction in acceptance of application for grant of license in respect of new “ON” Shop “for rural areas in 2023-24” and “in urban areas new „ON‟ Shop license can be granted for only star hotels and other hotels having such minimum number of rooms to be decided by Excise Department”. Since the pending applications relatable to the Excise Year 2022-23 were considered after coming into force the new Excise Policy, 2023-24, there is no legal right accrued to the petitioner to claim for grant of license.
7.1. Sri Lalatendu Samantaray, learned Additional Government Advocate supported the stance taken in the counter affidavit and submitted that this Court having already in Laxmipriya Kar (supra) declined to interfere with the validity of Clause 4.2.3(I) of the Excise Policy 2023-24, the submission of Sri Prafulla Kumar Rath, learned Senior Counsel does not hold water.
7.2. The learned Additional Government Advocate appearing for the opposite parties submitted that granting license with respect to Excise Year 2022-23 at the fag end of Excise Year 2023-24, when the latter policy would lapse on 31.03.2024, it will be futile exercise to direct the State Government to reconsider the decision already taken by rejecting the application for grant of license in respect of “On” Shop relating to the year 2022-23.
CONSIDERATION OF RIVAL CONTENTIONS AND REASONS FOR THE DECISION:
This Court bears in mind that barely seven working days are left excluding intervening holidays between 18.03.2024 (date of hearing of present matters) and 31.03.2024. Even if the State Government is directed to reconsider the feasibility to grant license to the instant petitioner(s) on the basis that it could not have been discriminated as similarly situated persons have been extended the benefit, it would be futile exercise as by the time the “ON” Shop license is granted, the Excise Policy, 2023-24 would lapse.
8.1. It is also to be borne in mind that Clause 4.2.3(I) of Excise Policy for the year 2022-23 contained “for new „ON‟ licenses to be granted/renewed in urban or rural areas, shops must adhere to basic infrastructure and hygiene requirements from consumer point of view”. When said clause of Excise Policy, 2022-23 is read juxtaposed with Clause 4.2.3(I) of Excise Policy, 2023-24 there is much of distinction in the sense that there is complete prohibition in accepting new application in the policy decision of the Government in the latter year (2023-24). Said clause of Excise Policy, 2023-24 being not interfered with by this Court in Laxmipriya Kar (supra), the contention of Senior Counsel for the petitioner that the application for grant of license should have been considered taking into account Excise Policy for 2022-23 is liable to be repelled.
8.2. It may be apt to say that the Excise Policy for 2023-24 came into force with effect from 01.04.2023 without saving the effectiveness of the Excise Policy for 2022-23. Therefore, necessary corollary would be to hold that on the implementation of the Excise Policy, 2023-24 with effect from 01.04.2023, there was no justifiable reason for the petitioner to contend that the State Government should have considered the case of the petitioner in the light of the Excise Policy, 2022-23.
8.3. Though reliance was placed on paragraph 33 of the Judgment in Nandlal Jaiswal (supra), this Court would wish to refer to what has been further stated at paragraph 34, which reads thus:
“But, while considering the applicability of Article 14, in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in R.K. Garg etc. Vrs. Union of India & Ors. etc., (1982) 1 SCR 947. We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the Legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter, J. in Morey Vrs. Dond, (354 US 457):
“In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The Legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events— self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.”
What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call „trial and error method‟ and, therefore, its validity cannot be tested on any rigid a priori considerations or on the application of any straight-jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play in the joints to the executive. *** The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution.”
8.4. Aforesaid decision in Nandlal Jaiswal (supra), was rendered in the context whether the license granted create a monopoly in favour of the licensees and the Hon’ble Supreme Court held that “The High Court was, in the circumstances, right in holding that the grant of D-2 license to respondent Nos.5-11 was for a maximum period of 5 years and it did not operate to create monopoly in their favour for an indefinite period of time.” After elaborately discussing the perspective of policy decision of the Government, the Hon’ble Supreme Court held as follows:
“38. *** Here, in the present case, the pre-dominant purpose of the policy decision dated 30th December, 1984 was to ensure construction and setting up of new distilleries with modern technologically advanced plant and machinery at new sites where there would be no possibility of air and water pollution and if for achieving this purpose the State Government considered the offer of the existing contractors and negotiated with them and ultimately decided to grant to them licences for construction of new distilleries on the terms and conditions set out in the recommendations of the Cabinet sub-Committee it is difficult to see how, in view of the decision in Kasturi Lal Lakshmi Reddy Vrs. State of J & K, (1980) 3 SCR 1338 the State Government could be said to have acted arbitrarily or capriciously in violation of Article 14 of the Constitution. The contention of the petitioners based on Article 14 of the Constitution must therefore stand rejected.”
8.5. This Court in Kishori Prasad Sahu Vrs. State of Odisha, 79 (1995) CLT 204, after noticing State of Madhya Pradesh Vrs. Nandlal Jaiswal, (1986) 4 SCC 566 = AIR 1987 SC 251 and many other decisions, made the following observation with regard to policy of the Government to restrict or prohibit manufacture or sale of country liquor:
“3. Before we consider these contentions, we may State that consumption of liquor has been regarded as injurious to health and a social evil. Liquor, when taken in excess, apart from adversely affecting the health of the person taking it, weakens his morals and many times it becomes a source of crime and misery to society. It not only affects the individual taking it but it also affects the persons connected with him. It leads to neglect of business, waste of property, general demoralisation etc. Therefore, in all civilized countries, there is a demand for restriction on consumption of liquor. In our country, attempts have been made to introduce prohibition on consumption of liquor either wholly or partially from time to time. Article 47 of the Constitution has made it a duty of the State to endeavour to bring about prohibition on consumption of intoxicating drinks and of drugs which are injurious to health, except for medicinal purposes. Prohibition is thus a good thing in itself and it is the duty of every State in our country to endeavour to bring about prohibition on consumption of liquor. Therefore, the Courts have also consistently held that no citizen has an inherent right to sell intoxicating liquors. As observed by the Supreme Court in Cooverjee B. Bharocha Vrs. Excise Commissioner and the Chief, Commissioner, Ajmer, AIR 1954 SC 220, there is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen. As it is a business attended with danger to the community, it may be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. Elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trades which all can carry.
In Krishna Kumar Narula Vrs. State of Jammu and Kashmir, AIR 1967 SC 1368, the Supreme Court struck a slightly different note by observing that acceptance of the broad argument that the dealing in noxious and dangerous goods like liquor is dangerous to the community and subversive to its morals and hence dealing in liquor is not trade or business involves the position that the meaning of the expression “trade or business” depends upon and varies with the general acceptance of the standards of morality obtaining at a particular point of time in our country. Such an approach leads to incoherence in thought and expression. Standards of morality can afford a guidance to impose restrictions but cannot limit the scope of the right. So too, a Legislature can impose restrictions or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining a particular time or place, may hold the restrictions or prohibition as reasonable. The Supreme Court has also observed that dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right in public interests.
The Supreme Court reviewed all its previous decisions in Har Shankar Vrs. Deputy Excise and Taxation Commissioner, (1975) 1 SCC 737 = AIR 1975 SC 1121, and held that there is no fundamental right in a citizen to trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. The wider right to prohibit absolutely would include the narrower right to permit dealings in intoxicants on such terms of general application as the State deems expedient. In Nashirwar Vrs. State of Madhya Pradesh, (1975) 1 SCC 29 = AIR 1975 SC 360, the Supreme Court has held that there are three principal reasons to hold that there is no fundamental right of a citizen to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trade in noxious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor. Third, the history of excise law shows that the State has the exclusive right or privilege of manufacture & sale of liquor.
Again, in State of M.P. Vrs. Nandlal, (1986) 4 SCC 566 = AIR 1987 SC 251, and Doongaji & Co. Vrs. State of M.P., 1991 Supp (2) SCC 313 = AIR 1991 SC 1947, the Supreme Court emphasised that there is no fundamental right in a citizen to carry on trade or business in liquor. As regards the nature and power of the State in this behalf, the Supreme Court in Synthetics & Chemicals Ltd. Vrs. State of U.P., (1990) 1 SCC 109 = AIR 1990 SC 1927, has held that the Indian Constitution does not recognise police power as such. But sovereign power gives the States sufficient authority to enact any law subject to the limitation of the Constitution to discharge its functions. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health; peace, morals, education and good order of the people.
***
*** Moreover, as stated earlier, consumption of liquor and intoxicants is not only a health hazard but a social evil as it ruins the health of the person consuming the same and adversely affects his family members and others with whom he is connected. Prohibition of consumption of liquor is a good thing in itself. The consideration of revenue and difficulties in implementation have made the States reluctant to introduce prohibition. We can safely presume that the Chief Minister was aware of these aspects, as he has held the office for a pretty long period and is otherwise also an experienced political leader.
If in view of its constitutional obligation, the State Government has decided to introduce partial prohibition, it cannot be said that the State has done so without giving a thought to the desirability of introducing it in the State. Consumption of which type of liquor should be permitted or prohibited is a matter of policy. Generally, liquor tragedies take place as a result of mixing poisonous alcohol with country liquor. IMFL sold in bottles is normally of standard quality and does not lead to death unless taken in excess quantity. Moreover, as a result of consumption of liquor, Adivasi and poor people suffer economically more. They do not have sufficient funds to maintain themselves and their families in a satisfactory manner, and if they divert their limited resources for consumption of liquor, then obviously that will result in a great setback to their upliftment, economically and socially. If on these considerations the State Government has thought it fit to ban manufacture, sale and consumption of country liquor, it cannot be said that the decision of the State Government is arbitrary. Moreover, if a thing is good in itself, or is generally accepted as good, there need not be further consultations on deliberations for taking steps to achieve the same. Again, in matters of policy decision, it is now well settled that the State Government has to be allowed wider discretion and such policy decisions cannot be permitted to be challenged as discriminatory or arbitrary if they have taken in public interest.
***
It is no doubt true, as contended by the learned counsel for the petitioner, that if the Government changes its policy, that it has to do it fairly and not arbitrarily. The following observations made by the Supreme Court in Col. A.S. Sangwan Vrs. Union of India, 1980 Supp SCC 559 = 1981 S.C. 1545, show the correct position of law:
“A policy once formulated with regard to promotion of employees in a cadre of defence forces by the Union of India is not good for ever, it is perfectly within the competence of the Union to change it, re-change it, adjust it and re-adjust it according to the compulsions of circumstances and the imperatives of material considerations. There is no bar to its changing the policy formulated earlier if there are good and weighty reasons for doing so. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up but if it does change its policy it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. Whatever, policy is made subsequently should be done fairly and made known to those concerned.”
What can be regarded as fair and not arbitrary would depend upon the subject-matter of the policy and the manner in which it is taken. Same considerations cannot be applied both in respect of change in the economic policy and change in the policy relating to manufacture, sale and consumption of liquor. What may be regarded as unfair and arbitrary in matters of policy relating to trade or commerce need not be regarded as unfair or arbitrary in matters of public health. Therefore, if the prevailing policy is changed and further steps are taken towards achieving the goal of prohibition, it cannot be said that the State Government is acting in an arbitrary manner even if the steps taken are sudden or partial and not complete. We do not find any material on the basis of which we can say that the policy decision has been taken by the State Government on extraneous considerations. ***”
8.6. Scrutiny of Annexure-5, where the petitioner has enclosed the names of the persons who are granted license for new shops, does not transpire the nature of applications made by such persons and no factual similitude is placed on record except saying that the petitioner is similarly situated person as that of the persons who are issued with license. In the counter affidavit filed by the opposite parties it has been clearly objected to that “The petitioner has only made all assertions that Clause 4.2.3(I) of the Excise Policy, 2023-24 is discriminatory, unconstitutional and violative of Article 14 without any specific averments substantiating the same”. It is also not discernible from Annexure-5 as enclosed to the writ petition by the petitioner that the consideration which weighed for grant of license in favour of persons named therein in exclusion of applications for grant of license qua the petitioner(s) herein. Annexure-5 does not evince that the circumstances under which the named persons found place therein were given license is akin to the circumstance of the petitioner. Another pertinent fact is that glance at application for grant of license by the
petitioner seems that the same is furnished on 17.09.2022 (i.e., six months after introduction of Excise Policy, 2022-23). It is also noteworthy that even on 20.01.2023 (as stated in convenience compilation filed by the petitioner) the petitioner had not completed its renovation of Lodging and Restaurant. The enquiry and compliance of deficiency pointed out appears to have taken some time. The application could not be disposed of on or before 31.03.2023. However, despite the fact that Government of Odisha had extended the period beyond said date, new Excise Policy, 2023-24 came into force with effect from 01.04.2023 and slated to remain valid till 31.03.2024.
8.7. This Court in Laxmipriya Kar Vrs. State of Odisha, W.P.(C) No.4152 of 2024, vide Order dated 04.03.2024 held as follows:
“7. We do not find any merit in the submission advanced on behalf of the petitioner that clause 4.2.3(I) violates any of the provision of the Rules of 2017 or the Act of 2008. The provision in the policy that no “ON” shop license shall be granted in rural area is apparently in public interest. The State Govt. does have the jurisdiction to make an apposite policy for regulating grant of licenses under the provisions of the Act of 2008 and the Rules of 2017. The policy dated 30.03.2023 for the excise year 2023-24 does not suffer from such legal infirmity warranting this Court’s interference exercising writ jurisdiction under Article 226 of the Constitution of India. In any view of the matter, the term of the policy is coming to an end by 31st March, 2024.”
8.8. It is trite that there is a presumption in favour of constitutionality of a statute and the burden of showing that it is arbitrary or discriminatory lies upon the petitioner, because it must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. (See, Bachan Singh Vrs. State of Punjab, (1982) 3 SCC 24.
8.9. In the case of Beg Raj Singh Vrs. State of U.P., (2003) 1 SCC 726, as relied upon by the learned Senior Counsel for the petitioner, the Hon‟ble Supreme Court of India laid down that “the ordinary rule of litigation is that the rights of the parties stand crystallised on the date of commencement of litigation and the right of the parties should be decided by reference to the date on which the petitioner entered into the portals of the Court.” Nonetheless, in the present case, special circumstance has intervened that unlike the application for grant of “ON” Shop licence was accepted during 2022-23, during 2023-24 the same is prohibited and such prohibition is regulatory in nature and in order to curb the growth of “ON” Shops. At this fag end of the year when the Excise Policy, 2023-24 is going to be ended on 31.03.2024, possibly no effective writ can be issued for “grant of license” as suggested by the learned Advocate(s) for the petitioner.
8.10. It may be apt to have regard to the following observations contained in Kuldeep Singh Vrs. Government of NCT of Delhi, (2006) 5 SCC 702 with reference to change in excise policy vis-à-vis Article 14 of the Constitution of India:
“15. The appellants filed applications for grant of licence pursuant to the policy decision adopted by the State. They might have invested a huge amount, but did not thereby derive any accrued or vested right. The matter relating to grant of license for dealing in liquor is within the exclusive domain of the State. If the State had the right to adopt a policy decision, they indisputably had a right to vary, amend or rescind the same. The effect of a policy decision taken by the State is to be considered having regard to the provisions contained in Article 47 of the Constitution of India as also its power of regulation and control in respect of the trade in terms of the provisions of the Excise Act.
***
Here, however, the State had made a change in its policy decision of opening the doors to the private entrepreneurs evidently with a view to earn more revenue. It represented to the applicants that their cases would be considered on their own merits. Such consideration was, thus, required to be fair and reasonable. Although dealing in liquor as has rightly been submitted by the learned Additional Solicitor General is not a fundamental right, but indisputably the equality clause contained in Article 14 of the Constitution of India would apply.
In State of M.P. Vrs. Nandlal Jaiswal, (1986) 4 SCC 566 whereupon the learned Additional Solicitor General himself relied upon, this Court stated: (SCC p. 604, para 33) “No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14.” (See also Ashok Lanka Vrs. Rishi Dikshit, (2006) 9 SCC 90.)
Moreover, if the equality clause applied, the State could not have adopted different procedures for different applicants. (See Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489 (SCC para 10).
The learned Additional Solicitor General furthermore failed to give any satisfactory answer to a query made by us as to how on the face of such policy decision, which according to the State was strictly adhered to, licenses had been granted to six other persons. We would, however, like to place on record the statements made by the learned Additional Solicitor General that the State would take action for cancellation of the licenses of the said licensees.
The State had adopted a policy to grant license on a first-come, first-served basis. It had in terms of the public notice dated 07.02.2005, intended to grant licenses for 70 vends. Not only the terms and conditions for grant of such licenses have been specified, the mode and manner in which such applications were to be filed had also been specified. As noticed hereinbefore, even time-frame therefor was fixed.
It is, however, difficult for us to accept the contention of the learned Senior Counsel Mr Soli J. Sorabjee that the doctrine of “legitimate expectation” is attracted in the instant case. Indisputably, the said doctrine is a source of procedural or substantive right. (See R. Vrs. North and East Devon Health Authority, ex p Coughlan, 2001 QB 213). But, however, the relevance of application of the said doctrine is as to whether the expectation was legitimate. Such legitimate expectation was also required to be determined keeping in view the larger public interest. Claimants‟ perceptions would not be relevant therefor. The State actions indisputably must be fair and reasonable. Non-arbitrariness on its part is a significant facet in the field of good governance. The discretion conferred upon the State yet again cannot be exercised whimsically or capriciously. But where a change in the policy decision is valid in law, any action taken pursuant thereto or in furtherance thereof, cannot be invalidated.
***
It is not in dispute that the State received a large number of applications. It was required to process all the applications. While processing such applications, inspections of the proposed sites were to be carried out and the contents thereof were required to be verified. For the said purpose, the applications were required to be strictly scrutinised. (See Ashok Lanka, (2006) 9 SCC 90).
Unless, therefore, an accrued or vested right had been derived by the appellants, the policy decision could have been changed.
***
In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.09.2005 not to grant L-52 license, no license could have been granted after the said date.
In any event the period for which licenses could be directed to the appellants has since expired. This Court, thus, cannot direct grant of license for the next year only because some licenses had been granted after 09.03.2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. (See State of U.P. Vrs. Rajkumar Sharma, (2006) 3 SCC 330). We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licenses of those licensees who had been granted license after the said date. We do not intend to make any further observation in regard thereto.
It is true that some licenses had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof.”
8.11. It is not out of place to refer to following observation made by this Court in Kishori Prasad Sahu Vrs. State of Odisha, 79 (1995) CLT 204:
“21. *** We have already pointed out earlier that the petitioners have failed to establish that the State Government was actuated by extraneous consideration or by ulterior motives. It cannot be said that the State Government has effected the change not bona fide but as a pretence for achieving some other object. Even the plea of giving reasonable time to the petitioners cannot be accepted for the simple reason that any restriction or prohibition, so far as consumption of liquor is concerned, deserves to be introduced as early as possible. It is the duty of the State Government to prohibit consumption of liquor and step taken in that direction at any point of time deserves to be upheld and appreciated. We are of the opinion that the new policy decision has been taken by the State Government in public interest.”
8.12. In Sumita Dutta Vrs. The Principal Secretary of Excise, 2018 SCC OnLine Cal 2381 a question that fell for consideration of the Calcutta High Court was, whether an application for grant of such license should be considered with regard to the Rules as they existed when the application was made or in accordance with Rules in force on the date of consideration. It is held as follows:
“13. Thus only one issue which arises for consideration on the contentions urged by the parties in this appeal, runs as follows:—
Whether an application for grant of such licence should be considered with regard to the Rules as they existed when the application was made or in accordance with Rules in force on the date of consideration?
The said question is no longer res intrega as an identical issue which was raised before the Supreme Court in the case of State of Kerala Vrs. Six Holiday Resorts Private Limited reported in (2010) 5 SCC 186 was decided by the Hon‟ble Supreme Court holding that, “where licence sought related to the business of liquor, as the State has exclusive privilege and its citizens had no fundamental right to carry on business of liquor, there was no vested right in any applicant to claim such licence and all applications should be considered with reference to the law prevailing as on date of consideration and not with reference to the date of submission of the application.”
It was further held therein that whether the issue relates to amendment to Rules or change in policy, there will be no difference in principle.
Identical view was expressed by the Hon‟ble Supreme Court on the same issue in the case of Somdev Kapoor Vrs. State of West Bengal reported in (2014) 14 SCC 486 wherein it was held that it would be significant to state that as per the law laid down by this Court, the Rules which are prevalent on the date when the application is considered are to be applied and not the Rules in force on the date when the application was made.
Thus, if we apply the said principle laid down by the Hon‟ble Supreme Court to the instant case, we have no hesitation to hold that the learned Single Judge of this Court was absolutely justified in passing the impugned order in the facts of the instant case.”
8.13. In the wake of aforesaid observations and having regard to the fact that the restriction contained in Clause 4.2.3(I) of the Excise Policy, 2023-24 being in the larger public interest, the decision taken by the State Government cannot be faulted with. In such view of the matter, this Court dispels the contention advanced by Sri Prafulla Kumar Rath, learned Senior Counsel.
During the course of hearing realizing that no effective writ of mandamus can be issued for (re)consideration of application for grant of “ON” Shop license, Sri Prafulla Kumar Rath, learned Senior Advocate for the petitioner advanced his last limb of submission stemming on Order dated 18.08.2020 passed in W.P.(C) No.13514 of 2020 (Arabinda Senapati Vrs. State of Odisha). He argued that the State Government can be directed to consider the application afresh, though it related to 2022-23. Such a contention of the learned Senior Counsel is only to be rejected for the reason that restriction has been clamped in Clause 4.2.3(I) of the Excise Policy, 2023-24 to the effect that “no new application for “ON” Shop license shall be accepted for rural areas in 2023-24. In urban areas new “ON” Shop license can be granted for only star hotels and other hotels having such minimum number of rooms to be decided by Excise Department”. Said Policy, 2023-24 having come into force with effect from 01.04.2023, and without saving the action to be taken in respect of application pending consideration under Excise Policy, 2022-23, there appears no infirmity in the decision of the State Government in the present case on the issue of license.
9.1. In the case of Arabinda Senapati (supra), this Court directed for consideration of application with the observation that “the opposite party No.1-Principal Secretary to Government, Excise Department is yet to take a view on the application of the petitioner including the question whether license for IMFL „ON‟ Shop should be granted or not to the petitioner for the year 2020-21 instead of 2019-20”. Said decision is clearly distinguishable as in the said case which was relied on by the learned Senior Counsel proceeded on the basis that the no final decision was taken when the matter was heard. In the instant case, the State Government has already considered and rejected the application for grant of license for proposed “ON” Shop.
SCOPE OF JUDICIAL REVIEW OF POLICY OF THE GOVERNMENT:
The Supreme Court of India in the case of State of Tamil Nadu Vrs. National South Indian River Interlinking Agriculturist Association, (2021) 7 SCR 479, observed as follows:
“9. The State of Tamil Nadu has raised a preliminary contention that the Court cannot review the scheme since it is a fiscal policy decision of the State. Before we proceed with the arguments on Article 14, it is imperative that we discuss the law down by this Court relating to the ambit and extent of judicial review of policy. An examination of this issue must begin with the primary question of the meaning of the phrase „policy‟. A policy is the reasoning and object that guides the decision of the authority, which in our case is the State of Tamil Nadu. Statutes, notifications, ordinances, or Government orders are means for the implementation of the policy of the State. Therefore, it is not possible to completely appreciate the law without reference to the policy behind the law. The judicially evolved two-pronged test to determine the validity of the law vis- à-vis Article 14 of the Indian Constitution, refers to the objective of the law because the “policy” behind the law is never completely insulated from judicial attention.
However, it is settled law that the Court cannot interfere with the soundness and wisdom of a policy. A policy is subject to judicial review on the limited grounds of compliance with the fundamental rights and other provisions of the Constitution. [Asif Hammed Vrs. State of Jammu & Kashmir, 1989 Supp (2) SCC 364; Sitaram Sugar Co Ltd. Vrs. Union of India, (1990) 3 SCC 223; Khoday Distilleries Ltd. Vrs. State of Karnataka, (1996) 10 SCC 304; Balco Employees Union Vrs. Union of India, (2002) 2 SCC 333; State of Orissa Vrs. Gopinath Dash, (2005) 13 SCC 495].
It is also settled that the Courts would show a higher degree of deference to matters concerning economic policy, compared to other matters of civil and political rights. In RK Garg Vrs. Union of India, (1981) 4 SCC 675, this Court decided on the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act 1981. The challenge to the statute was on the principal ground that it was violative of Article 14 of the Indian Constitution. Rejecting the challenge, the Constitution Bench observed that laws relating to economic activities must be viewed with greater latitude and deference when compared to laws relating to civil rights such as freedom of speech:
“8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Now here has this admonition been more felicitously expressed than in Morey Vrs. Doud, 351 US 457 = 1 L Ed 2d 1485 (1957) where Frankfurter, J., said in his inimitable style: “In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events— self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.”
The respondent has placed reliance on BALCO Employees Union Vrs. Union of India, (2002) 2 SCC 333. A Constitution Bench considered a challenge to the decision of the Union of India to disinvest and transfer 51% shares of Bharat Aluminum Company Limited. Rejecting the challenge, it was observed that that the wisdom of economic policies is not subject to judicial review:
"92. In a democracy it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se interfered with by the Court.
Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the Courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the Courts. Here the policy was tested and the motion defeated in the Lok Sabha on 01.03.2001”
Economic policies broadly comprise of policies on taxation, expenditure, and allocation. The State and its agencies often endeavor to make economically feasible decisions. The implementation of every policy of the State involves expenditure. Merely because the policy involves the expenditure of funds, it cannot be termed as an economic policy. The core feature of the policy and the targeted area needs to be determined to identify the nature of the policy. The impugned loan waiver scheme is, in essence, a social policy in pursuance of the Directive Principles of State Policy, introduced with an object to eliminate inequality in status, income, and facilities.
In Subramaniam Balaji Vrs. State of TN, (2016) 9 SCC 659, the scheme of gifts in the State of Tamil Nadu was under challenge. One of the arguments was that the distribution of colour television sets, laptops and mixer-grinders violates Article 14 of the Constitution as unequals are treated equally since the gifts were distributed irrespective of the income level. The contention was rejected on the ground that the distribution of the gifts relates to the implementation of the Directive Principles of State Policy. It was held that the Article 14 principle would only be applicable when State action imposes a burden on the citizens:
“78. With regard to the contention that distribution of State largesse in the form of colour TVs, laptops, mixer-grinders, etc. violates Article 14 of the Constitution as the unequals are treated equally. Before we venture to answer this question, we must recall that these measures relate to implementation of the Directive Principles of State Policy. Therefore, the principle of not to treat unequals as equal has no applicability as far as State largesse is concerned. This principle applies only where the law or the State action imposes some burden on the citizen either financial or otherwise. Besides, while implementing the directive principles, it is for the Government concerned to take into account its financial resources and the need of the people. There cannot be a straitjacket formula. If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State. All welfare measures cannot at one go be made available to all the citizens. The State can gradually extend the benefit and this principle has been recognised by this Court in several judgments.”
The loan waiver scheme is also in pursuance of the Directive Principles of State Policy. In view of the observations in Subramaniam Balaji (supra), the scheme cannot be held to breach Article 14 since it does not impose a burden but affords a benefit. We, however, deem it imperative to determine if the scheme violates the fundamental rights, in particular Article 14 of the Indian Constitution.
The equality code in Article 14 of the Indian Constitution prescribes substantive and not formal equality. It is now a settled position that classification per se is not discriminatory and violative of Article 14. Article 14 only forbids class legislation and not reasonable classification. A classification is reasonable, when the twin tests as laid down by Justice SR Das in State of W.B Vrs. Anwar Ali Sarkar, (1952) SCR 284 are fulfilled:
(i) The classification must be based on an intelligible differentia which distinguishes persons or things that are grouped, from others left out of the group; and
(ii) The differentia must have a rational relationship to the object sought to be achieved by the statute.
Justice Das in Anwar Ali Sarkar (supra) held that there must be some yardstick to differentiate the class included and the others excluded from the group. The differentia used for the classification in the scheme is the total extent of landholding by every individual. Therefore, there is a yardstick used for constituting the class for the purpose of the scheme.
***
One of us (Dr DY Chandrachud) in Navtej Singh Johar Vrs. Union of India, (2018) 10 SCC 1 accentuated the inadequacies of the two-pronged test which seeks to elevate form over substance. The over-emphasis on the „objective‟ of the law, instead of its „effect‟— particularly when the objective is ostensible— was observed not to further the true meaning of the equality clauses under the Indian Constitution. The traditional two pronged classification test needs to be expanded for the Courts to undertake a substantive review of Article 14 violations, away from the formalistic tendency that the twin test leans towards. Within the broad parameters of the two-pronged test, we find it imperative to undertake a much more substantive review by focusing on the multi axle operation of equality and non- discrimination.”
10.1. There being limited scope of interference with the policy decision of the State Government, which is taken on consideration of larger public interest, vis-à-vis Article 14 of the Constitution of India, this Court in view of decision taken by this Court in Laxmipriya Kar (supra) finds no good ground of attack to allow the writ petitions.
CONCLUSION & DECISION:
Having taken note of factual matrix of the case, discussed the nature of claim set out in the writ petition as also agitated by way of arguments, this Court is not inclined to issue writ of mandamus inasmuch as barely seven working days are left for the Excise Policy, 2023-24 to lapse from the date of hearing of this matter. Furthermore, there being no right in the petitioner to claim grant of such license and the application was rightfully considered with reference to the law prevailing as on the date of consideration and not with reference to the date of submission of the application. No merit being perceived in the writ petition, the same is liable to be dismissed.
As discussed and for the reasons stated above supported by ratio of Judgments referred to herein, this Court is of the opinion that on the date of consideration of application for grant of license since the Excise Policy, 2023-24, introduced in the larger public interest, has come to be implemented, there is justification for the State Government to take aid of said Policy and no discrimination is perceived attracting vice of Article 14 of Constitution of India.
After conclusion of hearing of the matter on 18.03.2024, a last ditch attempt has been made by Sri Prafulla Kumar Rath, learned Senior Advocate and other Advocates appearing for different parties in the present batch of matter, by contending that huge amount of money to the tune of Rs.1,10,000/- was deposited as fee along with application for grant of license, and during the pendency of such application, the petitioner(s) was under impression that the same would be allowed in view of recommendation being made to the State Government by the Commissioner of Excise. It is urged alternatively, in the event the writ petition does not find favour with, a direction to the opposite parties for refund of fee would mete out to the petitioner(s) in the ends of justice.
13.1. Sri Lalatendu Samantaray, learned Advocate for the opposite parties, at this stage, objected to such proposal and submitted that there is no provision envisaged for refund of application fee in the event the same is rejected. It is known to all concerned that such fee is non-refundable, which fact is acknowledged by the counsel for the petitioner(s); nevertheless, learned Additional Government Advocate conceded that if direction is granted to the State Government, such refund of fee would be considered in its own perspective.
13.2. Considering the fact that the State Government in Excise Department has extended the “time for disposal of new “ON” Shop proposals received during 2022-23” for a period of three months till 26.06.2023 vide Letter No.2407— EXC-POL-POL-0009-2023/Ex., dated 27.03.2023, and the new Excise Policy, 2023-24 restricting grant of “ON” Shop license came into force with effect from 01.04.2023 during subsistence of said extended period, it is open for the petitioner(s) to approach the opposite party No.1-Principal Secretary to Government, Excise Department, by placing claim for refund within a period of fifteen days hence. If such approach is made, said opposite party shall consider the grievance of the petitioner(s) for grant of refund of such application fee of Rs.1,10,000/- stated to have been deposited during the period 2022-23, when the Excise Policy, 2022-23 was in vogue, and take a decision keeping in view the peculiar circumstance prevailed in the present matter at the earliest preferably within a period of three months after receipt of aforesaid claim for refund of fee. It is clarified that this Court has not expressed any opinion in this regard.
Having found no substance in the contentions raised on behalf of the petitioners, but for the observation made in foregoing paragraphs taking into account the peculiar factual position of the matter with regard to deposit of huge amount of money towards application fee, with the aforesaid observation, this Court disposes of W.P.(C) No.19873 of 2023 (The Lotus Restaurant Vrs. State of Odisha) along with other writ petitions tagged therewith.
In the circumstances, there shall be no order as to costs.
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