Orissa High Court: A Division Bench of S. Panda, ACJ and S.K. Sahoo, J. did not entertain the writ petition because the petitioners had suppressed material facts and approached the court with unclean hands.
In the present case, the petitioners are the representatives of the villagers of Matha Sahi who have applied for grant of license to open a new IMFL ‘ON’ liquor shop at Hotel Florence under Bhadrak Municipality. On enquiry by Inspector of Excise, Bhadrak Range revealed that the proposed building for the liquor shop violates Rule 26 of the Odisha Excise Rules, 2017 and is at a distance of 103 mtrs. away from Dream India School, 330 mtrs. from Presidency College, 380 mtrs. from State Highway, 550 mtrs. from National Highway and 514 mtrs. of NH service lane. The violation was subject to relaxation by the State Government under Special Circumstances. The Collector, Bhadrak invited objection from the public and after inquiring the objections, the Inspector reported that Saraswati Sishu Mandir is at the back side of the proposed shop and such shop had been constructed as per planning with approval of Town Planning Authorities as some local people demanded opening of the proposed shop.
Hence a writ petition was filed under Article 226 of the Constitution to direct the opposite parties to cancel the license granted in favor of OP-5.
In the face of protests by the people at large, the Inquiring Inspector submitted the opinion of two persons demanding opening of proposed shop reveals the malafide intention and the Government still chose to grant license to open the liquor shop at the objectionable site.
The opposite party averred through counter affidavit that the petitioners have no cause of action to file the writ application and they have no locus standi to file the writ application and they are not residents of the ward where the ‘ON’ shop is functioning. It was further stated that the petitioners have not approached the Court with clean hands and as such, the writ application is liable to be dismissed.
It was further stated that the Collector, Bhadrak after receiving all objections pursuant to Form-VIII notice, submitted the entire papers to the Commissioner of Excise for onward recommendation to the Government for grant of license and the Collector, Bhadrak has suggested relaxation of the restrictions in exercise of power conferred under Rule-26 of the Odisha Excise Rules, 2017. The Superintendent of Excise, Bhadrak filed a counter-affidavit on behalf of OPs- 1, 2 and 3 wherein it stated that the Government after considering the objection petitions have relaxed the restrictions mentioned in Rule 26(1) of Odisha Excise Rules, 2017.
It was further stated that the school building of Saraswati Sishu Vidya Mandir is under construction and is non-functional presently and has no direct connection to the proposed ‘ON’ shop.
The Court held that IMFL ‘ON’ shop of the is functioning after obtaining necessary permission from the Government and the petitioners-institution has not yet been made functional and the petitioner has suppressed material facts and hence it is not inclined to entertain the writ petition.
In view of the above, the writ petition stand dismissed.[M.M. Saraswati Sishu Vidya Mandir v. State of Odisha, 2020 SCC OnLine Ori 56, decided on 24-02-2020]
