Ori HC | Executive instruction cannot supersede or override statutory provision; Impugned order being an executive instruction has to yield to R. 51 of Odisha Excise Rules

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and K.R. Mohapatra, J. set aside the impugned order being ultra vires the statutory provisions.

The petitioner is a licensee of Sikula IMFL Shop originally issued under the Bihar and Odisha Excise Act and the Rules made thereunder and later in the year 2017 under Odisha Excise Act 2008. The petitioner has been paying monthly consideration amount along with other statutory dues for issuance of license. While the excise licenses are renewed automatically, the Government made changes in rates and guidelines as applicable. When the petitioner submitted documents along with Solvency certificate for renewal of license as required under Rule 51 read with Rule 150 of the Odisha Excise Rule 2017, the Competent Authority refused to receive the same and required the petitioner to submit the documents along with Bank Guarantee and not the Solvency certificate vide order dated 02-01-2020 directing to phase out the practice of issuing of Solvency certificates and insist on producing IT Returns or Bank Guarantee, etc. for issuance of license by the State Government through its Revenue and Disaster Management Department. Hence the Excise Department of the Government of Orissa accordingly vide impugned letter dated 30-03-2020 directed the authorities to substitute Solvency certificate by Bank Guarantee. Hence, the instant petition has challenged the said letter.

Counsel for the petitioners submitted that the Government of Orissa by the aforesaid letter dated 30-03-2020 cannot supersede or override the statutory provisions contained in Rule 51 and Rule 150 of the Rules of 2017.

Counsel for the respondents Shri Ashok Parija submitted that the Government has taken a uniform decision in respect of all the departments wherever lease/license are issued. It was further submitted that the Government is in the process of incorporating the appropriate amendments in the Rules of 2017 to provide for Bank Guarantee in place of Solvency certificate.

After hearing the submission of both sides the Court held that that the statutory prescription enumerated in the statutory Rules namely; Rule 51 and Rule 150 of the Rules of 2017 and Rule 3 and Rule 4 of the Certificate Rules, cannot be overridden by mere executive order issued by the Revenue & Disaster Management Department dated 02-01-2020.

In view of the above, the impugned letter is quashed and petition disposed off.[Gopinath Sahu v. State of Orissa, 2020 SCC OnLine Ori 565, decided on 03-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

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