D SIDDAPPA Vs. DEPUTY COMMISSIONER EXCISE

JUDGEMENT

(1.) As the stage of preliminary hearing Sri Abdul Khader, learned Government Pleader was directed to take notice on behalf of the respondents. Accordingly learned Government Pleader has received the instructions and argued for the respondents. During the pendency of the Writ Petition the petitioner died. One Sri D. C. Srinivasa S/o D. Chennappa is brought on record, as a successor to the deceased in so far it relates to the subject matter of the writ petition is concerned. The petition is heard on merits.

(2.) In this petition under Article 226 of the Constitution the petitioner has sought for quashing the order dated 24-1-1984 bearing No. DTCR. 162/83-84 passed by the Deputy Commissioner (Excise) Chitradurga, produced as Annexure-F) suspending the C.L. 2 licence granted to the orginal petitioner. This impugned order is passed in the purported exercise of power under Section 29 of the KARNATAKA EXCISE ACT, 1965, 1965 as the Act pending investigation of the case registered against the petitioner. On coming to know that the petitioner had violated the conditions of licence the shop of the petitioner was searched. Certain quantity of non-duty paid liquor was seized A show cause notice dated 25-12-1983 was issued to the petitioner as per Annexure-C listing the irregularities and calling upon him to show cause and explain the same. On receipt of the reply from the petitioner the impugned order suspending the licence pending investigation of the case is passed as per Annexure-F.

(3.) The contention o f Sri Vasudevareddy, learned counsel for the petitioner is that under Section 29 cf the Act it is open to the authority to cancel or suspend the licence if any one of the grounds mentioned in that Section is established and that is possible only after holding an enquiry and recording a finding on the basis of the evidence that comes on record during the course of enquiry, that a certain irregularity falling under one of the clauses of Section 29 is established. Unless such a finding is recorded it is not. permissible for the 1st Respondent to suspend the licence pending the enquiry. Learned counsel submits that if such a power is conceded to the authority it would amount to punishing the licencee without the proof of the alleged irregularity or illegality and such a thing is opposed to very notion of fairplay and justice. It is also further contended that if the legislature intended that the authority may exercise power of suspension pending enquiry a provision to that effect would have been found in Section 29 of the Act. The fact that no such provision is made, whereas the penalty of cancellation and suspens:'on both are provided, would go to show that there is no power to suspend the licence pending investigation. On the contrary, it is contended by Sri Abdul Khadar, learned Government Pleader that the power of suspension pending enquiry is concomitant to the power of cancellation and suspension enjoyed by the authority under Section 29 of the Act, therefore it flows from the main power of cancellation and suspension as it is ancillary to such power. Hence, it is submitted that the 1st Respondent has the power to suspend the licence pending enquiry, that under the circumstances of the case he is justified in suspending the licence pending enquiry. Learned Government Pleader submits that a show cause notice was issued to him enumerating the irregularities as per Annexure-C, and on receipt of his explanation only, the order impugned in this writ petition is passed. Therefore it is submitted that there is no illegality whatsoever committed by the 1st Respondent in suspending the licence.