ROPAN SAHOO & ANOTHER versus ANANDA KUMAR SHARMA & OTHERS

Citation: [2013] 3 S.C.R. 1129 · Decided: 22-01-2013 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2013] 3 S.C.R. 1129 
ROPAN SAHOO & ANOTHER 
V. 
ANANDA KUMAR SHARMA & OTHERS 
(Civil Appeal No. 615 of 2013) 
JANUARY 22, 2013 
[K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] 
A 
B 
Orissa Excise Rules, 1965 - r.34(1) proviso - Grant of 
IMFL licence - By relaxing the rules - Challenged - High 
Court quashed the grant of licence on the ground that there 
C 
was no order relaxing the rules - On appeal, plea that order 
granting licence was in consonance with proviso to r.34(1) -
Held: It is evident from the Note-sheet in the file that every 
authority was aware of the restrictions on the distance from the 
preferred site and recommended for relaxation - Non-
D 
mentioning of rule does not tantamount to non-passing of an 
order - Thus the order of granting licence was in consonance 
with proviso to r.34(1) - Therefore, if cannot be said thatthere 
was no order relaxing the rules. 
Licence in respect of IMFL 'ON' shop, was granted 
E 
in favour of the appellants in C.A.No.615 of 2013. 
Respondent No.1 filed writ petition under Art. 226 of the 
Constitution, challenging the grant of the licence. High 
Court entertained the writ petition and quashed the grant . F 
of exclusive privilege and the licence, holding that there 
was no order relaxing the restrictions on the minimum 
distance as mentioned in clauses (d) and (e) of r.34 of 
Orissa Excise Rules, 1965 relating to the proposed shops 
in exercise of powers of the said Rule. Hence the present 
appeals by the affected persons as well as the State. The 
G 
State referred to the Note-sheet in the file to highlight that 
the order had been passed in consonance with proviso 
to r.34(1) of the Rules. 
1129 
H 
1130 
SUPREME COURT REPORTS 
[2013] 3 S.C.R. 
A 
Allowing the appeals, the Court 
HELD: 1. The reasons ascribed by the High Court 
that there was no order whatsoever relaxing the Orissa 
Excise Rules, 1965 before the order of grant of exclusive 
8 privilege was passed, is not correct. On a keen ~crutiny 
of the entire note-sheet it is evident that the 
Commissioner-cum-Secretary had accepted the 
recommendations of the Collector and the Excise 
Commissioner, and upon perusal of the note-sheet, the 
C Joint Secretary had recommended for consideration and 
approval by the Minister of Excise and Tourism. The 
Minister has signed and thereafter, the file had travelled 
back for communication. After the Minister had signed on 
the file on the basis of the recommendations sent by the 
Commissioner-cum-Secretary which was founded on the 
D recommendations of the Joint Secretary who had 
concurred with the recommendations of the Collector 
and the Excise Commissioner, communications were 
made· by the Joint Secretary. The note-sheet clearly 
indicated application of mind to the relevant facts which 
E pertain to the restrictions on the distance from the 
proposed site and the endorsement by the Minister. [Para 
18] [1141-B-F] 
Tafcon Projects (I) (P) Ltd. v. Union of India and Ors. 
F (2004) 13 sec 788 - relied on. 
Narmada Bachao Ando/an v. State of Madhya Pradesh 
AIR 2011 SC3199: 2011 (12) SCR 84; State of U.P. and Ors. 
v. Pradhan Sangh Kshettra Samiti and Ors. AIR 1995 SC 
1512: 1995 (2) SCR 1015; Shamsher Singh v. State of 
G Punjab and Anr. AIR 1974 SC 2192: 1975 (1) SCR 814; 
Sethi Auto Service Station and Anr. v. Delhi Development 
Authority and Ors. (2009) 1 sec 180: 2008 (14) SCR 598; 
State cf West Bengal v. M. R. Monda/ and Anr. AIR 2001 SC 
3471: 2001 (2) Suppl. SCR 531 - referred to. 
H 
. ROPAN SAHOO v. ANANDA KUMAR SHARMA 
1131 
2. The cumulative effect of the note-sheet goes a 
A 
long way to show that every authority was aware of the 
distance and recommended for relaxation of clauses (d) 
and (e) of sub-rule (1) of Rule 34 and the concerned 
Minister had endorsed the same. Non-mentioning of the 
Rule or sub-rule does not tantamount to non-passing of 
B 
an order. The dominant test has to be the application of 
mind to the relevant facts. The second part of the order, 
if properly appreciated, conveys that no reasons have 
been ascribed. The proviso to Rule 34(1) lays a postulate 
that the distance as mentioned under clauses (d) and (e) ·c 
may be relaxed by the State Government in special 
circumstances. The recommendations made by the 
Collector refers to the circumstances, namely, that there 
is a demand for consumption of liquor within the hotel 
premises; that illegal liquor cases have been booked in 
the nearby area; and that the proposal is in the inter
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