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V. Kuppusamy Vs. State of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P. No. 1285 of 1982
Judge
Reported inAIR1983Mad222
ActsTamil Nadu Prohibition Act - Sections 23(1), 23(3) and 23(4); Constitution of India - Articles 14 and 226
AppellantV. Kuppusamy
RespondentState of Tamil Nadu and ors.
Appellant AdvocateG. Gopinath, Adv.
Respondent AdvocateAdvocate General assisted by N.R. Chandran, Addl. Govt. Pleader
Cases ReferredSukhwinder Pal Biran Kumar v. State of Punjab
Excerpt:
constitution - licence - section 23 (4) of tamil nadu prohibition act and article 14 of constitution of india - suspension of licence pending enquiry and disposal of charges against petitioner for violation of conditions of licence - suspension followed issuing of show cause notice - impugned order passed pending enquiry into charges under section 23 (4) - nothing to show violation of article 14 - petition against suspension order liable to be dismissed. - - it has been clearly stated that suspension is pending enquiry and disposal of the charges against the petitioner. and that the like should be treated alike......attention to the entirety of section 23 of the act and would submit that under section 23 (3) the power of suspension could be exercised only after giving an opportunity to the holder of the licence to state his objection within a reasonable time, not ordinarily exceeding 14 days and after considering such representations. in contrast, learned counsel would state section 23 (4) while empowering the authority concerned to suspend the licence, denies an opportunity to the holder of the licence to state his objections.3. to appreciate and consider the submissions of the learned counsel for the petitioner, it becomes necessary to extract section 23 of the act as whole. that section reads as follows -(a) if any fee payable by the holder thereof be not duly paid ; or (b) in the event of any.....
Judgment:
ORDER

1. The petitioner is a licensee for run-in a retail liquor shop in Kumbakonam town. The petitioner challenges the order of the second respondent in ROC B. Spl 8330-A/82 dated 5-2-1982, in the present writ petition. That order was passed by the second respondent under Section 23 (4) of the Tamil Nadu Prohibition ACt X of 1937, hereinafter referred to as the Act. The order of the second respondent has set forth the irregularities found at the time of the inspection of the shop of the petitioner on 27-1-1982, by the Assistant Commissioner (Excise) Thanjavur, and opining that a prima facie case for violation of the provisions of the Act and certain Rules 1981, and condition No.4 of the licence, the second respondent suspended the licence of the petitioner. It has been clearly stated that suspension is pending enquiry and disposal of the charges against the petitioner.

2. Mr.G.Gopinatha learned counsel for the petitioner, would attack subsection (4) if Section 23 of the ACt, under which the impugned order has been passed, by stating that the said provision is violative of Art 14 of the Constitution of the India. He has not urged any other point before me. In substation of his submission, the learned counsel draws my attention to the entirety of Section 23 of the Act and would submit that under Section 23 (3) the power of suspension could be exercised only after giving an opportunity to the holder of the licence to state his objection within a reasonable time, not ordinarily exceeding 14 days and after considering such representations. In contrast, learned counsel would state Section 23 (4) while empowering the authority concerned to suspend the licence, denies an opportunity to the holder of the licence to state his objections.

3. To appreciate and consider the submissions of the learned counsel for the petitioner, it becomes necessary to extract Section 23 of the act as whole. That section reads as follows -

(a) if any fee payable by the holder thereof be not duly paid ; or

(b) in the event of any breach by the holder of such licence or permit or by his servants or by any one acting with his express or implied permission on his behalf of any of the terms or conditions of such licence or permit; or

(c) if the holder thereof is convicted of any offence against this Act, or of any cognisable and non-bailable offence; or

(d) if the condition of such licence or permit provide for its cancellation or suspension at will ; or

(e) if the purpose for which the licence or permit is granted ceases to exist.

(2) The State Government may cancel or suspend any such licence or permit issued by the Collector or the prescribed authority for any of the aforesaid reasons;

(3) Before any licence or permit is cancelled or suspended under sub-section (1) or sub-section (2) the holder of the licence or permit shall be given an opportunity to state his objections within a reasonable time, not ordinarily exceeding fourteen days and any representation made by him in this behalf shall be duly taken into consideration before final orders are passed.

(4) Notwithstanding anything contained in sub-section (3), in so far as it relates to suspension of any such licence or permit where a prima facie case has been made out, the State Government or the Collector or the prescribed authority, as the case may be, may, at anytime and for reasons to be recorded in writing suspend any such licence or permit and in such a case, it shall not be necessary to tive an opportunity to the holder of the licence or permit to state his objections'.

It is true that under Section 23 (4), which came to be introduced by the Tamil Nadu Prohibition (Second Amendment) Act 51 of 1981, the authority concerned is empowered to suspend the licence to state his objections. if Section 23 (4) is taken to be a taken substantive provision, in addition to Section 23 (3), s empowering the concerned authority to suspend the licence, the argument of the learned counsel for the petitioner may merit consideration. But, a reading of Section 23 (4) does not convey to the mind of this court that the power under that provision is intended to be exercised as a substantive one part from the power under Section 23(3). The very language used in Section 23 (4) indicates that the power under Section 23(4) is intended to be exercised pending an enquiry under Section 23 (3). It is true, no express words are used to that effect, but Section 23(4) contemplates the exercise of power where a prima facie case has been made out. The prima facie case could have relevance only to the contingencies contemplated under Section 23(1). If a prima facie case has been made out within any of the Cls. (a) to (e) under Section 23 (1), the power under S. 23 (4) may have to be invoked. The learned Advocate General representing the respondents, wants to subscribed support only to this view and construction of the said provision. The power under Section 23(4) could be invoked only where a prima facie case has been made out. The order of suspension to be passed under Section 23 (4) could not be a final order of suspension. The prima facie case has got to be further probed into after affording an opportunity to the holder of the licence to state his objections and the ultimate order will necessarily have to be passed under Section 23 (3). The power under Section 23 (4) is that it is meant for being exercised pending an enquiry under Section 23 (3). The power under Section 23 (4) cannot be taken to be a substantive power to impose the substantive punishment of suspension without affording an opportunity to the holder of the licence to state his objections. One other aspect that should not be omitted to be taken note of in this context, is, while Section 23 (3) contemplates cancellation of the licence also after considering the objections of the holder of the licence, there is no power of cancellation under S. 23 (4). This makes a vast and potent distinction in the areas of operation between the two provisions. Section 23 (40 could not be availed of only for the purpose of passing an order of suspension and on a proper construction of the said provision, that power is available only pending an enquiry where a prima facie case has been made out. Equality before law means that among equals or among persons facing same and similar contingencies, law should be equal and should be equally administered; and that the like should be treated alike. It does not mean that things which are place differently shall be treated as though they were the same, - But, Section 23 (4) is not and could not be construed as a substantive provision for punishment, in addition to Section 23 (3), so that it can be stated that one provision contemplates imposition of a punishment after giving an opportunity to the person concerned, and the other provision also contemplates imposition of a punishment, by denying an opportunity to the person facing the same or similar contingencies. S.23 94) is meant to serve a different purpose, namely suspension pending an enquiry. In this connection, I feel obliged to refer to a recent pronouncemnt of the Supreme Court in Messrs, Sukhwinder Pal Biran Kumar v. State of Punjab, : [1982]2SCR31 , wherein the Supreme Court dealt with the second proviso to Clause 11(1) of the Punjab Food Grains Dealers Licensing and Price Control Order (1978). The said proviso reads as follows -

'Provided further that the licensing authority may suspend a licence without giving a reasonable opportunity to the licencee of stating his case for a period not exceeding ninety days during the pendency or in contemplation of the proceedings for cancellation of his licence'.

The Supreme Court held that the proviso is not violative of Art. 14 of the Constitution of India and the following observations of the Supreme Court are elucidative and the reasoning found therein provides and answer to the contention raised herein-

'The dealers are free to carry on their trade or business in foodgrains, subject to their complying with the terms and conditions of their licence and the provisions of the order. But, if they commit a breach they must face the consequence that their licence may be cancelled or suspended under sub-clause (1) of Cl. 11 of the Order. They must face the further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for cancellation of the licence, if the breach is of such a nature that it must result in the cancellation of a licence. As already stated, the power of suspension is a necessary adjunct of the power to grant a licence. In view of the acute shortage of foodstuffs in the country, the Government is bound to take all effective steps to implement the provisions of the Essential commodities Act (1955) and the various orders issued under S.E thereof from time to time. The conferral of the power of suspension of the licence of a foodgrain dealer under the second proviso to sub-cl. (1) of cl. 11 of the Order during the pendency or in contemplation of the proceedings for cancellation of his licence, is an important step taken by the Government to subserve the object of the legislation and is in public interest.'

4. Coming to the facts of the present case, the impugned order states without ambiguity that the suspension is only pending enquiry and disposal of the charges against the petitioner. Admittedly, this has been followed up by issuing the show cause notice on 13-2-1982. Learned counsel for the petitioner admits the receipt of the show cause notice by the petitioner on 24-2-1982. This leaves no room for ambiguity that the impugned order has come to be passed pending an enquiry into the charges in exercise of the power under Section 23 (4), which power as rightly conceded by the learned Advocate General, is available only to the authorities concerned for the purpose of suspending the licence pending enquiry. Viewed in this light, there is no possibility to spell out any discrimination, which would come within the mischief of Art. 14 of the Constitution of India. In this view, this writ petition deserves dismissal and accordingly, the same is dismissed. There will be no order as to costs.

5. Petition dismissed.


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