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The State of Tamil Nadu, The Collector, Kancheepuram District, The Commissioner, Prohibition and Excise Department, The Assistant Commissioner (Excise) Versus Hotel Mount Heera, The Managing Director, Tamil Nadu State Marketing Corporation Ltd.

2017 (12) TMI 335 - MADRAS HIGH COURT

Renewal of license denied - application received, after the expiry of the licence period - Held that:- Having regard to the orders made in W.P. filed by Harshini Recreation Club, represented by its Secretary against the Commissioner of Prohibition and Excise, Chennai and another, and after, obtaining opinion from the learned Advocate General, the Commissioner of Prohibition and Excise (i/c), Chennai has sought for necessary amendment, to Rule 21 of the Tamilnadu Liquor (Licence & Permit) Rules, .....

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g good and sufficient reasons for the delay and on payment of additional fee of 25% of the prescribed licence fee, ie., an application filed even after 31st March , can be considered. Amendment is yet to be made. Existing rule position, as on today, in Tamilnadu Liquor (Licence & Permit) Rules, 1981, has been understood by the department and therefore, amendment has been sought for. Going through the reasons, assigned by the writ Court, we do not find any merit in the instant writ appeals.Hence, .....

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cence for year 2015-16, with reference to Rule 21 of the Tamil Nadu (Licence & Permit) Rules, 1981 and the objection of the Department of Prohibition and Excise, Chennai, that belated applications submitted for renewal of FL.3 licence cannot be considered, vide common order in W.P.Nos.34214 of 2015 etc., batch of writ petitions dated 10.06.2016, writ Court, at paragraph Nos.5 to 7, has ordered, as hereunder. "5. At this stage, it has to be pointed out that rules of limitation are not me .....

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t has been made in the impugned orders. That apart, the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, has not fixed any outer time limit as found in other tax statutes like Tamil Nadu Value Added Tax, Customs Act or Central Excise Act. Therefore the authority viz., the Commissioner of Prohibition and Excise is empowered to condone the delay by examining the facts. 6. I have carefully examined the facts of each case and found that in no case there is any mala fide intention on the part of t .....

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e delay in filing the application for renewal is condoned. The third respondent is directed to consider the petitioners' application for renewal of FL3 License, in accordance with law, and pass orders within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.Nos.1 to 3 of 2015 are closed." 2. Following the above order, made in W.P.No.34214 of 2015 etc., dated 10.06.2016, similar writ petition in W.P.No.35254 of 2015, has been allowed on .....

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ate, on the sentence but, in no case, after the expiry of the licence, the licencing authority can admit an application' and that the licencing authority, has no authority, to entertain an application submitted, after the expiry of the date on which, the licence, expires. He submitted that an application for renewal, has to be made within 30 days, before the expiry of the licence and the power to condone delay can be exercised, if only an application is submitted, within 30 days, from the la .....

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ons for renewal of FL.3 licence, cannot be sought for, as a matter of right, after the period prescribed and that therefore, rejection of applications filed for renewal of FL.3 licence, submitted beyond the period stated therefor, is valid, and that the writ Court, ought to have sustained the orders of rejection of the said applications, and ought not to have directed Commissioner, Prohibition & Excise Department, Chennai, to consider the applications, submitted for renewal of FL.3 licence i .....

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iry of the licence. The application may be sent to the licensing authority direct. The provisions of rules 18 to 20 shall, as far as may be, apply to an application for renewal of licence as if it were an application for the original grant of a licence, where an application for renewal of the licence has not been made within a period of one month before the expiry as specified herein, but in no case after the expiry of the licence, the licensing authority may admit such application, provided the .....

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to exclude something which prima facie would so fall. Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of two or more possible meanings is the right one to attribute to them............ The words preceding the proviso would prima facie point to the former view. One must, however, read the whole clause before attempting to construe any portion of it, and a perusal of the proviso f .....

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u find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. There are four exceptions in the proviso to Section 4, which are clearly general exceptions to the operative provisions of the section. (iii) In Curtis v. Maloney reported in (1950) 2 All .....

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thin the scope of the preceding words something which prima facie would not fall within it, or to exclude something which prima facie would fall. Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of two or more possible meanings is the right one to attribute to them." Lord Wright (ibid., 477) said thus: "It is said that, where there is a proviso, the former part, which i .....

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he first part of the section deficient in express definition, but also the second part is complementary and necessary in order to ascertain the full intention of the legislature. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest. I do not think that there is any other rule, even in the case of a proviso in the strictest or narrowest sense, and still less whe .....

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oner of Income-Tax v. Indo Mercantile Bank Ltd., reported in AIR 1959 SC 713, the Hon'ble Supreme Court, held as follows: "The proper function of a proviso is that it qualifies the generality of the main enactment, by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dea .....

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dinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other ". (10) Lord Macmillan in Madras & Southern Mahratta Railway Co. v. Bezwada Municipality [(1944) L.R. 71 I.A. 113] laid down the sphere of a proviso as follows :- " The proper function of a proviso is to except and deal with a case .....

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therwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Corporation of The City of Toronto v. Attorney-General for Canada [1946 AC 32])." (vi) In S.B.K.Oil Mills v. Subhash Chandra reported in AIR 1961 .....

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perly construed without attributing to it that effect." ....... 9. The law with regard to provisos is well-settled and well- understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled b .....

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this purpose the rule of Constiuction referred to by learned counsel will not be infringed.' 29. In the West Derby Union v. Metropolitn Life Assurance Co.. [(1897) A.C. 641, 652], Lord Watson observed: "......... I perfectly admit that there may be and are any cases which the terms of ail intelligible proviso may throw considerable light on the ambiguous import of the statutory words." (viii) In Kedarnath Jute Manufacturing Co. Ltd., v. The Commercial Tax Officer reported in AIR 1 .....

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sub-cl. (ii) alone are complied' with, the proviso becomes redundant and otiose. To accept the argument of the learned counsel for the appellant is to ignore the proviso altogether, for if his contention be correct it will lead to the position that if the declaration form is furnished, well and good; but, if not furnished, other evidence can be produced. That is to rewrite the clause and to omit the proviso. That will defeat the express intention of the Legislature." (ix) In Dwarka Pra .....

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, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. "The proper course is to apply the broad general rule of construction which is that a section .....

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pe of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactme .....

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which but for the proviso would be within it...The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject- matter of the proviso." 29. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients: P. 317 "Provisos-These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment wh .....

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oviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is sub .....

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metimes contain a substantive provision." 31. In the case of Local Government Board v. South Stoneham Union [(1909) A C. 57] Lord Macnaghten made the following observation: "I think the proviso is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate." 32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai [(1966) 1 SCR 367], it was held that the main object of a proviso is merely to qualify the main enactment. In Madras and So .....

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of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha [[1962] 2 SCR 159], Hidayatullah, J, as he then was, very aptly and succinctly indicated the parametres of a proviso thus: "As a general rule, a proviso is added to an enactment to .....

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ord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co. ([1909] AC 253.), where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. 36. While interpreting a proviso care must be taken that it is used to remove special cases from the genera .....

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and adumbrated the various shades; aspects and elements of a proviso. In State of Rajasthan v. Leela Jain ([1965]1 S C.R. 276) the following observations were made: "So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part." 39. In the case of Sales Tax Officer, Circle 1, Jabalpur v .....

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n exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself" 41. In Dwarka Prasad v. Dwarka Das Saraf ([1976]1 S.C.R. 128), Krishan Iyer, J. speaking for the Court observed thus: "There is some validity in submission but if, on a fair construction, the principal provision is clear, a proviso can not expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, .....

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hough the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." 42. In Hiralal Rattanlal etc. v. Staie of U.P. and Anr. ([1973] 1 S.C.C.216), this Court made the following observations: "Ordinarily, a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have ar .....

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hange the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem .....

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It carves out an exception to the main provision to which it has been enacted as a proviso and to no other." 10. The same view was reiterated in Abdul Jabar Butt v. State of Jammu & Kashmir, [1957] SCR 51, where it was held that a proviso must be considered with relation to the principle matter to which it stands as a proviso." (xii) In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal reported in 1991 (3) SCC 442, the Hon'ble Supreme Court, held as follows: "6. It .....

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xplicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and it the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment .....

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sion. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a cause which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication wh .....

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words of the proviso are such that it is its necessary effect." (xiv) In Kerala State Housing Board v. Ramapriya Hotels (P) Ltd., reported in 1994 (5) SCC 672, the Hon'ble Supreme Court, held as follows: "6. In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal [1991 (3) SCC 442], this Court held that the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to be confine .....

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ear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says, nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect." (xv) In J.K.Industries Ltd., v. Chief Inspector of Factories and Boilers reported in 1996 (6) SCC 665, the Hon'ble Supreme Court held as follows: "30. In Reserve Bank of India Etc. Etc. Vs. Peerless General Finance .....

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y it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Ac .....

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n rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary." {Emphasis supplied} ..... 33. A proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the .....

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st be construed as a whole each portion throwing light, if need, be, on the rest. A proviso is normally used to remove special cases from the general enactment and provide for them specially. 34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a pro .....

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er without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity. 36. While dealing with proper function of a proviso, this Court in The Commissioner of Income-Tax. Mysore & Ors. Vs. The Indo Mercantile Bank Ltd. & Ors. [AIR 1959 (SC), 713] opined: "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an .....

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out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. (See: Kedarnath Jute Manufacturing Co. Ltd., v. C.T.O. AIR 1966 SC 12). Since the natural presumption is that but for the PROVISO, the enacting part of the section would have included the subject matter of the PROVISO , the enacting part has to be given such a construction which would make the exceptions carved out by the PROVISO necessary and a construction which .....

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v. Haryana State Cooperative Land Development Banks Employees Union reported in 2004 (1) SCC 574, the Hon'ble Supreme Court, held that, "9. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj S .....

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preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v .....

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5 SCC 672], "This word (proviso) hath divers operations. Sometime it worked a qualification or limitation; sometime a condition; and sometime a covenant" (Coke upon Littleton 18th Edition, 146) "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, .....

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.B.D. 285). 10. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206). 11. The above position was noted in Ali M.K. and Ors., v. State of Kerala and Ors., (2003 (4) SCALE 197)." (xviii) In Maulavi Hussein Haji Abraham Umarji v. State of Gujarat reported in AIR 2004 SC 3947, the Hon'ble Supreme C .....

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ccountants of India v. M/s.Price Waterhouse and Anr., AIR 1998 SC 74). The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner, [1846] 6 Moore PC 1, Courts, cannot a .....

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stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans, [1910] AC 445 HL, quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors., AIR (1962) SC 847). 20. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as the .....

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ion of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 22. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deem .....

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corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd o .....

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obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC, [1966] AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges". 24. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law inten .....

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inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones v. Smart, I.T.R. 52, "can in no case be supplied by a court of law, for that would be to make laws." 25. The go .....

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t;golden rule" must, however, be applied with much caution. "If', remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, .....

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R 2009 SC 187. 9. Though Mr.M.Elumalai, learned Government Advocate has emphasised on one portion of the Rule 21 of Tamil Nadu Liquor (Licence & Permit) Rules, 1981, we are of the view that the latter portion of the rule, enables submission of an application, for renewal, even after the period of expiry of licence. 10. Letter dated 20.04.2017 sent by the Commissioner of Prohibition and Excise (i/c), Chennai to the Additional Chief Secretary to the Government, Home, Prohibition and Excise (VI .....

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oked - Supply of liquor to the licensee - Renewal of the FL2 licence for the year 2015-2016 - Opinion called for - Opinion received - Amendment proposal sent - after vetting by Advocate General - Regarding. Ref: 1. This Office letter No.P&E2(2)/6840/2015, dated: 17.10.2016 2. Advocate General, High Court of Madras Opinion dated 02.12.2016. 3. This office letter No.P&E2(2)/6840/2015, dated 15.02.2017. - I invite kind attention to the references cited and I wish to state that necessary ame .....

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ly. The provisions of Rules 18 to 20 shall, as far as may be, apply to an application for renewal of licence as if it were an application for the original grant of licence, where an application for renewal of the licence has not been made within a period of one month before the expiry as specified herein, but in no case after the expiry of the licence, the licencing authority may admit such application, provided there are good and sufficient reasons for the delay on payment of an additional fee .....

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plication for the original grant of licence, where an application for renewal of the licence has been made after the last day of February of the year in which the licence would expire, but on or before 31st March of the year in which the licence would expire of twenty five per cent of the prescribed licence fee. Rule 21: Renewal of licence - A licence holder desiring to renew the licence shall make an application in the prescribed form (the same as for the original grant of the licence) along wi .....

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ut on or before 31st March of the year in which the licence would expire, the licencing authority may admit such application, provided there are good and sufficient reasons for the delay, on payment of an additional fee of twenty five per cent of the prescribed licence fee. However, an application for renewal of licence which is received after the expiry of the licence period i.e. 31st March of the concerned year, will not be considered and the licence already granted will be deemed to be cancel .....

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