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Orissa High Court
Sri Bulu Jena vs State Of Odisha on 11 December, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.34137 of 2025
In the matter of an Application under Articles 226 & 227 of
the Constitution of India, 1950
***
Sri Bulu Jena
Aged about 45 years
Son of Ghanasyam Jena
At: Pandia, PO: Purusottampur
District: Ganjam
PIN: 761043
(Licensee in respect of
Seragada O.S. Main Shop
with attached
Branch Shop at Balisahi
In the district of Ganjam). ... Petitioner
-VERSUS-
1. State of Odisha,
Represented by the
Principal Secretary to Government,
Excise Department, Loka Seva Bhawan
Sachivalaya Marg, Bhubaneswar - 751 001
District: Khordha.
2. Excise Commissioner
Odisha, Cuttack Road
Bidanasi, P.O.: Cuttack - 753 014
District: Cuttack.
WP(C) No.34137 of 2025 Page 1 of 15
3. Collector, Ganjam
At/P.O.: Chatrapur
District: Ganjam.
4. Superintendent of Excise
Ganjam,
At/P.O.: Chatrapur
District: Ganjam. ... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Prafulla Kumar Rath,
Senior Advocate
assisted by
M/s. Saibrata Rath,
Adhiraj Behera,
Surajit Kumar Behera,
Shradha Das, Sridhan Chandan,
Gayatri Lenka, Ankit Mohanty,
Indira Priyadarsani Bose,
Swagat Mohapatra and
Adarsh Biswal, Advocates
For the Opposite Parties : Mr. Debasish Tripathy,
Additional Government Advocate
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 11.12.2025 :: Date of Judgment : 11.12.2025
WP(C) No.34137 of 2025 Page 2 of 15
JUDGMENT
MURAHARI SRI RAMAN, J.--
1. Questioning the authority and jurisdiction of the
Superintendent of Excise, Ganjam, Chatrapur-opposite
party No.4 issuing direction in Letter No.2966/Ex., dated
1st November, 2025 (Annexure-1) to the petitioner-Excise
Privilege Holder of Sheregada Out Still Shop to shift the
shop from its current location to an alternative location
stemming on provisions of Rule 26 of the Odisha Excise
Rules, 2017 (for short, "the Rules, 2017"), the petitioner
has approached this Court by way of filing this writ
petition invoking provision under Articles 226 and 227 of
the Constitution of India with the following prayer(s):
"The petitioner, therefore, pray that your Lordship would
be graciously pleased to admit this writ petition, call for the
records and after hearing the parties allow the same, issue
writ/writs in the nature of certiorari/mandamus and/or
any other further writ/direction, quashing the order dated
01.11.2025 passed by Superintendent of Excise, Ganjam,
Chatrapur under Annexure-1 and allow the licensee to
operate the license at the present location.
And for this act of kindness, the petitioner shall as in duty
bound ever pray."
2. Mr. Prafulla Kumar Rath, learned Senior Advocate
appearing for the petitioner submitted that the Sheregada
Out Still Shop at Baramundali Village in Aska Tahasil in
the district of Ganjam has eight numbers of branch shops
including the Balisahi Branch Shop, which is subject
matter of the present writ petition. Though the license
issued in respect of this branch shop stands valid till 31st
March, 2026, on the basis of objection, a communication
has been issued by the Superintendent of Excise,
Ganjam, Chatrapur vide letter dated 1st November, 2025
instructing the petitioner to shift the shop from the
existing location. It is submitted that aforesaid branch
shop has been granted license since 2005 and the same
has been renewed every year. It is contended that the
Superintendent of Excise, Ganjam, Chatrapur misread
the purport of Rule 26 of the Rules, 2017 and on an
erroneous apprehension of the provisions contained in
Section 41 of the Odisha Excise Act, 2008 (for short, "the
Act, 2008") issued letter dated 1st November, 2025.
2.1. He further submitted that in view of the fact that branch
has been operating its business activity in the present site
for more than twenty years and, hence, in view of Section
41 of the Act, 2008, the direction of the Superintendent of
Excise, Ganjam, Chatrapur vide letter dated 1st
November, 2025 is contrary to law. This apart, there is
absence of any proposal by the petitioner for shifting of
said shop from the current location, and Rule 53 of the
Rules, 2017 does not authorize the Superintendent of
Excise, Ganjam, Chatrapur to issue direction for shifting
of the shop.
2.2. Added to the above, learned Senior Advocate arduously
submitted that flagrant violation of principles of natural
justice is apparent on the face of record. Inasmuch as,
the Superintendent of Excise, Ganjam, Chatrapur has
never disclosed the nature of objection and source of
objection received and consideration of such objection
beyond the periods stipulated under Rules 31 to 33 of the
aforesaid Rules vitiates the contemplated action vide
letter dated 1st November, 2025.
3. In pursuance of Order dated 4th December, 2025, learned
Additional Government Advocate appearing for the
opposite parties furnished copy of instruction as received
in the Office of the learned Advocate General of Odisha,
wherefrom it is revealed that "the Collector, Ganjam orally
raised objection and directed to shift the shop on the
ground of existence of the shop in close proximity
approximately 30 meters to the Balisahi Out Still Shop at
Shergarh".
3.1. It is, therefore, submitted by the learned Additional
Government Advocate appearing for the State-opposite
parties submitted that the Collector, Ganjam has been
apprised such fact by raising oral objection by the public
of the locality and the Collector having collected
information from the locality, felt that the continuance of
aforesaid shop in the present place is not conducive.
Having received such instruction from the Collector,
Ganjam, the letter dated 1st November, 2025 has been
issued, which is in consonance with the
restrictions/conditions imposed under Rule 26 of the
Rules, 2017. He fervently prayed for dismissal of the writ
petition in limine.
4. Heard Mr. Prafulla Kumar Rath, learned Senior Advocate
appearing for the petitioner and Mr. Debasish Tripathy,
learned Additional Government Advocate appearing for
the State-Opposite parties.
5. On perusal of record, it reveals that the Superintendent of
Excise, Ganjam, Chatrapur issued letter dated 1st
November, 2025 from the District Excise Office, Ganjam
with the following text:
"Sub: Regarding shifting of Bali Sahi O.S. Branch Shop
under Sheregada Main Shop.
This Notice is to bring to your attention that as per
the allegation received by the Collector, Ganjam,
alleging that the Bali Sahi Govt. U.P. School is
situated in close proximity (approximately 30 meters)
to the Bali Sahi O.S. Branch Shop at Sheregada,
thereby contravening Rule 26 of the Odisha Excise
Rules, 2017.
Hence, you are hereby instructed to shift the said
shop from its current site to an alternative,
unobjectionable location, ensuring the smooth
operation of the shop within 2 (two) weeks from the
date of receipt of this notice."
5.1. The instruction as received in the Office of the learned
Advocate General, Odisha from the said Superintendent
transpires the following fact:
"initial license was granted in favour of the licensee Sri
Ranka Sahu vide license No.43 of 2005-06. The said
Ranka Sahu transferred the license in favour of the present
petitioner vide order dated 08.10.2021. Thereafter the
licensee is operating the shop generating revenue for the
State. The said license is being renewed from time to time
as per Excise Rules and Excise Policy framed by the
Government from time to time. That the Shop in question in
running on the basis of renewal since last 20 years".
5.2. It is thus discernible that the Superintendent of Excise,
Ganjam, Chatrapur has not controverted the basic
foundational fact pleaded in the writ petition.
5.3. As has already been stated hereinabove that the license to
carry on business is renewed and allowed to remain valid
till 31st March, 2026, which fact is evident from License
Form No.XLV (O.S.1) issued under the seal and signature
of the Superintendent of Excise, Ganjam on 8th April,
2021, upon being approved by the Collector on the said
date. Thus being the undisputed fact, the provisions of
Rule 53 of the Rules, 2017 in no ambiguous terms
postulates that the Superintendent of Excise, Ganjam,
Chatrapur has no jurisdiction to issue direction for
shifting of the shop.
5.4. For proper comprehension of the legality of exercise of
power to issue direction to shift the shop by the
Superintendent of Excise, as contended by the learned
Senior Advocate for the petitioner, the provisions of Rule
53 of the Rules, 2017 are reproduced hereunder:
"53. Fixing and shifting of shop premises.--
(1) Any person intending to obtain a license under the Act
or a person selected for grant of license for retail vend
of any intoxicants shall specify about the locality of
vend a village, sahi or in town, a Mahala, street or
certain street or word to the authority competent to
grant such license.
(2) If the details given under sub-rule (1) are considered
vague or insufficient the Collector shall specify a
particular distance from some fixed spots, from the
premises where the shop is intended to be opened.
(3) The details of the whole locality be fixed and notified
before the settlement is made.
(4) The site of the shop shall be subject to the approval of
the Collector.
(5) In case of shifting of shop for any reason, the
details as mentioned in sub-rule (1) shall be
furnished to the Collector, who, on being
satisfied refer to the Commissioner for his
approval."
5.5. Scrutiny of the impugned Letter dated 1st November, 2025
issued by the Superintendent of Excise, Ganjam,
Chatrapur, directing the petitioner to shift his shop from
the present location apparently does not seem to have
emanated from the competent authority conferred with
power by and under Rule 53(5) of the Rules, 2017. It also
does not spell out that the Superintendent of Excise has
adhered to the modality envisioned in Rule 53 of the
Rules, 2017. Therefore, the impugned letter in question
with direction cannot be held to be tenable in the eye of
law, being without authority.
6. With respect to contention of the petitioner that in
absence of adherence to Rules 31 to 33, particularly sub-
rule (2) of Rule 33, there is no scope for directing the
petitioner to shift the shop during currency of the license,
which is renewed to remain valid till 31.03.2026. It is
asserted by the petitioner that the business has been
carried from the Balisahi Branch shop since 2005 without
any objection or demur. The license being renewed from
time to time, the direction contained in the impugned
letter dated 1st November, 2025 issued by the
Superintendent of Excise, Ganjam, Chatrapur cannot
withstand judicial scrutiny in view of Section 41 of the
Act, 2008.
6.1. For better understanding, Section 41 of the Act, 2008 is
quoted hereunder:
"41. Grant of licenses by Collector and submission of list,
objections and suggestions of Excise Commissioner.--
(1) After the date prescribed for receipt of objections and
suggestions, the Collector shall consider all the
objections and suggestions submitted under section 40
and if necessary, revise the said list, and shall decide
for which places licenses for the retail sale of spirit
shall be granted:
Provided that no objections shall ordinarily be
entertained for shops continuing in an area for
more than three years, unless there are special
reasons to be recorded in writing.
(2) The Collector shall thereupon submit the said list, as
so revised, and the said objections and suggestions
and his own opinion and recommendations, if any, to
the Excise Commissioner."
6.2. Rule 31 of the Rules, 2017 provides that before the
Government decides to grant license, the Collector shall
affix the public notice in Form-VIII both in Odia and
English languages as required under sub-section (1) of
Section 20 and Clause (a) of Section 38 by giving fifteen
days' time to receive objections, if any, and shall also
proclaim the same in the locality as mandated therein.
Rule 32 of the said Rules further provides that the head
of the concerned local body shall cause a copy of the
extract sent to it under Clause (a) of Rule 31 to be affixed
at the office notice board of the local body which must be
put in a conspicuous part of the said building for a period
not less than seven days.
6.3. The aforesaid provisions have their applicability in case of
permitting the shifting of the license/shop from the
existing site to another location. Once the aforesaid
exercise is undertaken, the authority is to take a
conscious decision as contemplated in the first proviso to
clause (a) of Rule 311. Sub-rule (2) of Rule 332 of the said
Rules creates a complete embargo in entertaining any
objection or the suggestion after the lapse of the said
period.
1 Rule 31(a) stands as follows:
"31. Notice of the proposals for grant of licences or exclusive privilege to be given
to certain authorities.--
Before the 1st November or such other date as the State Government may
decide, the Collector shall,--
(a) affix the public notice both in Odia and English in Form No. VIII as required
under sub-section (1) of Section 20 and clause (a) of Section 38 giving fifteen
days' time therein for receiving objections, if any, and proclaim the same in
the locality by beat of drums as required under clause (b) thereof or by mike
announcement in the locality, or by hosting of notice in the concerned district
Website:
Provided that the Collector shall indicate the local area of the shop for retail
sale which shall be same as the location of the shop containing a list of Police
Station limits, Grama Panchayats, Wards of Municipal Corporation,
Municipality or Wards of Notified Area Council or village(s), as the case may
be, convenient in each case so as to indicate the local area within which the
exclusive privilege is proposed to be granted:
Provided further that in the Scheduled Areas, no such licence or exclusive
privilege shall be granted without giving thirty days time as required under
Section 27."
2 Rule 33 stands as follows:
"33. Objection to the proposal to be sent to the Collector.--
(1) All objections and suggestions referred to in rule 31 with respect to proposals
contained in the list prepared under rule 30 shall be sent to the Collector
within fifteen days from the date of expiry of the period of notice given in
Form VIII and in case of cantonment, the Commanding officer shall inform the
Collector within the said period whether he consents to the proposals.
(2) Any objection and suggestion received after the said period shall be
summarily rejected.
(3) The list prepared and recommended by the Collector and submitted to the
Excise Commissioner in accordance with sub-section (2) of Section 41 shall be
submitted before the State Government for approval under Section 42."
6.4. At this juncture, it is pertinent to take note of a decision
of Division Bench of this Court rendered vide judgment
dated 8th September, 2025 in the case of Sri Sandeep
Raiguru Vrs. State of Odisha, WP(C) No.23046 of 2025 as
referred to and relied upon by the learned Senior
Advocate for the petitioner. In the said judgment, this
Court having taken into consideration the effect and
applicability of Rules 31 to 33 and Rule 53 of the Rules,
2017 read with Section 26 of the Act, 2008 came to hold
as follows:
"6.2.*** Since the issue whether any order can be passed
for shifting the shop from the existing site to another
site on the basis of the objection raised by the villagers
has been discussed hereinabove and we find that
such objection cannot be entertained after the
statutory period expires and the renewal of the
license is granted."
6.5. This Court takes cognizance of the fact surfaced from
License Form No.XLV (O.S.1) that being renewed, it
remains valid "from 1st April, 2025 to 31st March, 2026".
The renewed licence has been issued by the
Superintendent of Excise, Ganjam, Chatrapur on the
approval by the Collector, Ganjam on 8th April, 2025. As
is admitted by the Superintendent of Excise, Ganjam,
Chatrapur in his instruction imparted to the learned
Additional Government Advocate, it remains no disputed
fact that the shop in question has been running in the
current location for last twenty years. Hence, in view of
proviso to sub-section (1) of Section 41 of the Act, 2008,
power could not have been exercised by the
Superintendent of Excise contrary to what has been spelt
out in Section 41 of the Act, 2008 read with Rule 53(5) of
the Rules, 2017.
6.6. As is revealed from the copy of written instructions
handed over to this Court by the learned Additional
Government Advocate on the basis of objection raised by
the public, the impugned letter dated 1st November, 2025
has come to be issued by the Superintendent of Excise,
Ganjam, Chatrapur. Said instruction does not exposit as
to compliance of procedure prescribed under Rules 31 to
33 of the Rules, 2017. Nothing surfaces from such
instruction that the objection was received by the
competent authority within stipulated period as envisaged
in Rule 33(2) of the Rules, 2017. Objection received
beyond the period stipulated is liable to be summarily
rejected. This view is fortified by aforesaid judgment of
this Court rendered in Sri Sandeep Raiguru (supra). In
judgment dated 11.12.2025 rendered by this Court in
Satya Sankar Samantaray Vs. The Principal Secretary,
Department of Excise, Govt. of Odisha and others (WP(C)
No.33555 of 2025), this Court held that if the authorities
proceeded to grant the license, it cannot be said that they
are unaware of the rigour of the legal provisions; rather in
the present case on approval of the Collector, the
authority concerned renewed the license. As Rule 33(2) of
the Rules, 2017 posits complete embargo, any objection
subsequent to such grant shall be rejected summarily.
Hence, no sanctity can be attached to the direction
contained in the impugned Letter dated 01.11.2025
issued by the Superintendent of Excise.
7. On the aforesaid factual matrix as discussed hereinabove
and in view of provisions of the Odisha Excise Act, 2008
and the Odisha Excise Rules, 2017 referred to
hereinbefore and keeping abreast of the interpretation set
forth in Sri Sandeep Raiguru (supra), this Court is of the
firm view that the Superintendent of Excise, Ganjam,
Chatrapur has transgressed authority and jurisdiction by
issue of letter dated 1st November, 2025 directing the
petitioner to shift the shop from the current location. In
view of Rule 53(5) of the Rules, 2017 coupled with explicit
interdiction contained in Section 41 of the Act, 2008 and
Rule 33(2) of the Rules, 2017, said direction in the
impugned letter cannot be sustained.
8. In the aforesaid premises, the direction vide Letter dated
1st November, 2025 issued by the Superintendent of
Excise, Ganjam, Chatrapur-opposite party No.4
(Annexure-1) from the District Excise Office, Ganjam,
Chatrapur is set aside.
9. In the result, the writ petition stands disposed of. As a
result of disposal of the writ petition, pending
Interlocutory Application(s), if any, shall stand disposed of
(HARISH TANDON)
CHIEF JUSTICE
(MURAHARI SRI RAMAN)
JUDGE
High Court of Orissa, Cuttack
The 11th December, 2025/Laxmikant
Designation: Senior Stenographer
Location: High Court of Orissa,
Cuttack
Date: 17-Dec-2025 13:46:36
