Andhra HC (Pre-Telangana)
K. Srinivasa Reddy And Anr. vs Superintendent, Prohibition And ... on 11 December, 2001
Equivalent citations: 2002(1)ALT108
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, C.J.
1. W.P.No. 23805 of 2001, was filed seeking to declare the Proceedings No. 507/2001/C2, dated 23-10-2001, passed by the 1st respondent-Prohibition and Excise Superintendent, as illegal and contrary to the proviso appended to Section 31(1) of the A.P. Excise Act, 1968 (for short 'the Act'), consequently quash the same and direct the 1st respondent to permit the petitioners to run the business of sale of liquor in the name and style of M/s. Madras Wines at Devarakonda, till 31-3-2001 (sic. 2002) in terms of the licence issued on 31-3-1990.
2. The learned single Judge holding that against the impugned order, petitioners have an effective alternative remedy by way of appeal to the Deputy Commissioner, under Section 63 of the Act, dismissed the writ petition.
3. The correctness or otherwise of the above order, passed by the learned single Judge is questioned in this writ appeal.
4. We have heard the learned Counsel for the petitioners as well as the learned Government Pleader for Prohibition and Excise for the respondents.
5. The learned Counsel for the appellants submits that the 1st respondent without giving the appellants an opportunity to make their representation, has straightaway passed the impugned order, which is against the principles of natural justice and contrary to the statutory provisions as embodied in the Act. On the other hand, the learned Government Pleader contended that even assuming that the impugned order is a final adjudication of the rights of the parties, the said order is an appealable one before the Deputy Commissioner under Section 63 of the Act. The appellants without exhausting the efficacious remedy of appeal available to them under the Act, have filed the writ petition, which the learned single Judge rightly dismissed.
6. We have perused Section 31 of the Excise Act. A plain reading of Section 31 of the Act would disclose that the authority thereunder is given power to cancel or suspend the licence irrespective of the period for which the licence or permit relates. The proviso appended to Section 31(1) of the Act says that no licence or permit shall be cancelled or suspended unless the holder thereof is given an opportunity of making his representation against the action proposed. Section 63 of the Act deals with appeals. Any person aggrieved by an order passed by an Officer, other than the Commissioner or Collector, may within 45 days from the date of communication of such an order, appeal to the Deputy Commissioner, and any person aggrieved by an order passed by the Deputy Commissioner, may within 60 days from the date of communication of such order, appeal to the Commissioner.
7. We have also perused the impugned order. Though the impugned order indicates that an enquiry was conducted, but it nowhere states that an opportunity of hearing and/or making representation, was given to the appellants before passing the impugned order suspending the licence of the appellants, which is a mandatory requirement. The impugned order reads as if it is a final order under Section 31(1) of the Act. In our opinion, such an order cannot be treated as a final adjudication of the rights and contentions of the parties.
8. As already noticed, the proviso appended to Section 31(1) of the Act clearly states that no licence or permit shall be cancelled or suspended unless the holder thereof is given an opportunity of making his representation against the action proposed. In the instant case, the 1st respondent neither gave any notice to the appellants nor gave them any opportunity to make their representation against the action proposed. The 1st respondent, instead of proposing the action of suspending the licence, has passed a final order suspending the licence of the appellants, which, in our opinion, is illegal and against the provisions of Section 31(1) of the Act.
9. We, therefore, in the interest of justice, treat the impugned order dated 23-10-2001, passed by the 1st respondent, as a provisional order, and direct him to issue notice to the appellants, to submit their representation against the action proposed. The 1st respondent shall issue notice to the appellants, as above, within a period of ten days from to-day, and within ten days of receipt of such notice, the appellants shall make their representation in writing. The 1st respondent upon affording opportunity of hearing to the appellants shall decide the matter finally on merits within two weeks thereafter.
10. With the observations, as above, the writ appeal is disposed of. No costs.