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1971 DIGILAW 16 (GAU)

Naresh Chandra Sen v. Deputy Commissioner (Supply) United Khasi and Jaintia Hills, Shillong

1971-03-09

D.M.SEN, P.K.GOSWAMI

body1971
GOSWAMI, C. J:- This application under Article 226 of the Constitution of India is directed against an order of the Deputy Commissioner (Supply), United Khasi-Jaintia Hills, Shillong, dated 14th March, 1969, cancelling the appointment of the petitioner as a retail dealer in respect of foodstuffs under the Assam Foodstuffs (Distribution) Control Order, 1958, herein­after called 'the order', and forfeiting his security deposit. 2. The petitioner was appointed as a retail dealer on 29th November, 1962 on certain terms and conditions mentioned in the letter of appointment (Annexure 1). On 11th December, 1968 the respondent No. 2, who was the Sub-divisional Officer (Supply) under the Deputy Commissioner (Respon­dent No. 1) found shortage of 69.100 grams of sugar in the course of checking his shop. The licence was later suspended by an order dated 17th December, 1968 and he was asked to explain why the same should not be cancelled and the security money be forfeited. The petitioner submitted his ex­planation stating that since he was personal­ly not present in the shop, the employee concerned could not inform the officer that a portion of the sugar was in his godown nearby, where it had been removed earlier on account of the shop premises being under repairs. The respondent No. 1 did not ac­cept the explanation and cancelled the licence and forfeited the security deposit by the impugned order. 3. The impugned order is passed under Clause 3 (2) of the Order, which may be read: "The Director may, after giving an appointed retailer an opportunity of stating his case and for reasons to be recorded in writ­ing, amend, vary, suspend or revoke his appointment whenever, in the opinion of the Director, it is in the interest of the general public necessary or expedient so to do, and in every such case the appointed retailer shall be bound to surren­der, on demand, to the Director the order of appointment for endorsement or cancel­lation, as the case may be." The impugned order (Annexure 4) does not disclose any reasons. This order, however, may be considered as one communicating the order of cancellation and forfeiture of security deposit The original records are produced before us by the learned counsel appearing for the respondents and we find that the Deputy Commissioner agreed with the reasons given by the Enquiry Officer for cancellation of the appointment. This order, however, may be considered as one communicating the order of cancellation and forfeiture of security deposit The original records are produced before us by the learned counsel appearing for the respondents and we find that the Deputy Commissioner agreed with the reasons given by the Enquiry Officer for cancellation of the appointment. Al­though, therefore, the reasons were not communicated to the petitioner, we may assume in this case that reasons have been recorded by the Deputy Commissioner. It is also not denied that he is authorised to perform the functions of the Director. From a perusal of the reasons, we find that a Sub-Inspector of Supply had gone to the shop of the petitioner on 23rd December, 1968 for seizing his stock-book and sale-register of rice, sugar etc., but that he re­fused to handover the same. This fact was brought to the notice of the Deputy Com­missioner on 28th December, 1968 when he made an endorsement in these words, name­ly- "This will go against him." Indeed, this did go against the petitioner, as we find, on a perusal of the reasons for cancell­ing the licence, the fact of the petitioner's refusal to handover the account books was relied upon by the authority. When he had been earlier asked to show cause, this ground was not a basis of the charge; yet, without giving any reasonable opportunity to the petitioner to explain this subsequent fact of refusal by him to handover the ac­count books, the impugned order was based, inter alia on this fact. Even in an adminis­trative order of this kind, it is necessary that reasonable opportunity should be afforded to a party against whom an order of can­cellation of the kind is sought to be made. The order is therefore invalid for violation of the principles of natural justice. 4, There is yet another serious in­firmity in the order. Under Clause 3 (2) of the Order, the Director may revoke the appointment whenever in his opinion, it is in the interest of the general public neces­sary or expedient to revoke the same. On a perusal of the reasons in the original re­cords, we do not find any expression of opi­nion of the Deputy Commissioner that the revocation, in his opinion, was necessary or expedient in the interest of the general pub­lic. On a perusal of the reasons in the original re­cords, we do not find any expression of opi­nion of the Deputy Commissioner that the revocation, in his opinion, was necessary or expedient in the interest of the general pub­lic. The words "Whenever, in the opinion of the Director, it is in the interest of the general public necessary or expedient so to do", are not a surplusage as urged by the learned Counsel for the respondents. There is a presumption against surplusage or re­dundancy in a statute. If we read Cl. 3 (2), without the above-quoted words, the sub­mission of the learned counsel that it is not necessary to express any opinion bearing on the interest of the general public, may be correct. But the presence of these words has got to be given its appropriate effect. In passing an order of this kind, the Director has to record his reasons and pass any one of the following orders, namely amend­ing, varying, suspending or revoking the appointment. It is in this background that he is required to form an opinion as to which particular order will be necessary or expe­dient in the interest of the general public. Revocation of licence under Clause 3 (2) is not automatic. Besides, giving the appoint­ed retailer a reasonable opportunity of de­fending his licence, the Director has to con­sider the interest of the general public in passing the final order in a given case. If this important consideration, which is pro­vided under Clause 3 (2) is kept in mind, it Stands to reason that the authority concern­ed will have to consider all relevant aspects of the matter before a final order is passed. It is therefore, necessary that in the order giving the reasons for cancellation of the licence, the authority concerned gives its opinion whether it is necessary or expedient in the interest of the general public to pass the particular order. The order is, there­fore, bad in law in absence of any expres­sion of the opinion of the Deputy Commis­sioner that it is in the interest of the general public necessary or expedient to cancel the licence. The order is, therefore, liable to be quashed even on this ground. 5. In the result, the impugned order is quashed. The petition is allowed. We will, however make no order as to costs. D. M. Sen, J.:- 6. I agree. Petition allowed.