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1985 DIGILAW 460 (ALL)

Gopal Das Kapoor v. State Of U. P.

1985-04-22

S.K.DHAON, S.K.MUKHERJEE

body1985
JUDGMENT S. K. Dhaon, J. 1. The petitioner, an appointee for sale of Government foodgrains, challenges the legality of an order passed by the District Supply Officer, suspending his appointment as an "authorised retail distributor" by means of this writ petition under Article 226 of the Constitution. 2. In exercise of the powers conferred by the provisions contained in Section 3 read with Section 5 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) the State Government enforced the U. P. Foodgrains and other Essential Articles Distribution Order, 1977 (hereinafter referred to as the distribution order of 1977). Clause 2 (b) of the Distribution Order of 1977 reads thus 5- ' Authorised retail distributor " means a person appointed as agent (Retail) by the District Magistrate, City Magistrate or Sub-Divisional Magistrate for sale of Government foodgrains and other essential articles. " The basis of invoking the writ jurisdiction of this Court is that the petitioner holds a statutory appointment having been appointed an authorised distributor under and in pursuance of clause 2 (b) of the Distribution order of 1977. In our opinion the very premise is unfounded. In Writ petition no. 77 of 1981 decided on 29th January 1981 and in the case of Raj Kumar Sheo Kumar v. Additional District Magistrate (Civil Supplies), 1981 ALJ 261 it was held., that the appointment of retailers as authorised distributors for selling essential commodities was governed by the terms and conditions of the agreement under which the appointment was made and consequently the rights claimed by such retailers were essentially contractual in nature. Both these Division Benches relied on a Supreme Court decision in the case of S. Chandra Shekharan v. The Government of Tamil Nadu, AIR 1974 SC 1543 and a Full Bench decision of this court in Shital Prasad v. M. Saidullah, 1975 AWC 529 . Some of the petitioners in Writ petition no. 77 of 1984 and the other connected writ petitions assailed the correctness of the view taken by the Division Bench of this court in those cases before the Supreme Court by preferring Special Leave Petition No. 2052-2053 of 1981. On 6th March, 1981, the Supreme Court dismissed the Special Leave Petitions and affirmed the decision of this court in the aforementioned writ petitions. On 6th March, 1981, the Supreme Court dismissed the Special Leave Petitions and affirmed the decision of this court in the aforementioned writ petitions. Furthermore, in paragraph 1 of the writ petition there is a clear admission that the agreement arrived at between the District Magistrate and the petitioner was a contractual one. The said paragraph reads thus :- "That this instant writ petition arises out of impugned order dated 29-9-1984 passed by the District Supply Officer Farrukhabad suspending the contractual agreement and thereby the Fair Price shop of the petitioner was also suspended holding that he misused the sugar quota and failed to produce stock register and other government record." Therefore, the petitioner does not possess any legal right so as to entitle him to claim relief under Article 226 of the Constitution. 3. Learned counsel for the petitioner vehemently urged that in the case of Prashchan Srivastava v. State of U.P., 1983 ALJ 1139 a Division Bench of this Court examined the contentions raised there in on merits on the assumption that the appointments of the petitioners in those cases were statutory in character being relatable to clause 2 (b) of the Distribution Order of 1977. Without entering into any controversy we shall also examine the merits of the submissions made on behalf of the petitioner. 4. Four submissions have been made on behalf of the petitioner. They are : (1) Neither the terms of the Distribution Order of 1977 nor the terms of the agreement confer any power in any authority to suspend the authorisation given in clause 2 (b) of the Control Order of 1977. (2) The appointment having been made by the District Magistrate, no other officer except him could pass the impugned order of suspension. (3) In any case, the District Supply Officer could not exercise the powers of the District Magistrate as he had not been authorised in writing by the District Magistrate to do so; and (4) the petitioner was not afforded any opportunity of showing cause before the impugned order was passed. In order to appreciate the submissions, we may have a quick look at the few averments made in the Writ petition as well as the relevant terms of the agreement. The petitioner has not produced before us either the original or a true copy of the agreement. In order to appreciate the submissions, we may have a quick look at the few averments made in the Writ petition as well as the relevant terms of the agreement. The petitioner has not produced before us either the original or a true copy of the agreement. Instead, he has contented himself by filing the proforma of the agreement as Annexure III to the writ petition. Paragraph 1 of the proforma provides that it shall come into force on a specified date and shall continue till a specified date "unless otherwise terminated earlier by the said District Magistrate or the DSO/TRO/SDO under the provisions hereafter contained." Paragraph 16 of the proforma provides that the District Magistrate/TRO/SDO shall have the right to terminate the agreement at any time without assigning any reason therefor. 5. Paragraphs 2, 5 and 7 of the writ petition may also be extracted :- "That the fact remains that neither the District Supply Officer was competent to pass impugned order nor he was competent to suspend the agreement or fair price shop and there existed no such powers of suspension of the agreement or the Fair price shop and petitioner was afforded no opportunity of being heard prior to passing the impugned order and thereby the order so passed is violative of principles of natural justice." "5. That the District Magistrate is defined under Section 2 (c) of the Order as District Magistrate includes an officer authorised in writing by the District Magistrate to perform all or any of his business under this Order, but the District Magistrate Farrukhabad did not authorise in writing the District Supply Officer to exercise his powers under the order." "7. That earlier to 11th March 1977 after authorisation of retail Distributor under the order District Magistrate/or the DSO/TRO/SDO used to sign agreement on behalf of State with the Authorised retail distributors, but vide G.O. no. 243/29-A-6 dated 11-3-1977 the word DSO and TRO were deleted from the proforma of the agreement containing terms and conditions and thereafter vide another G.O. no. 3181/29 AF 6-10-57 (20/77 dated August 20, 1977) deleted the words DSO and TRO from para no. 16 and para no. 19 of the said agreement and thus DSO and TRO were not competent either to enter into agreement or terminate the same." 6. The learned standing counsel was granted time thrice to file a counter affidavit. 3181/29 AF 6-10-57 (20/77 dated August 20, 1977) deleted the words DSO and TRO from para no. 16 and para no. 19 of the said agreement and thus DSO and TRO were not competent either to enter into agreement or terminate the same." 6. The learned standing counsel was granted time thrice to file a counter affidavit. In particular, he was directed to file a reply to the coments of paragraph 5 of the Writ petition. However, no counter affidavit has been filed. We have, therefore, to proceed on the assumption that the averments made in the writ petition are correct. We are also proceeding to dispose of this writ petition finally. The first submission stands answered by the decision of this Court in Prakash Chandra Srivastava's case (supra). This Court held that the terms and the conditions laid down in the agreement were an integral part of the appointment of an agent (retail), if the appointment was statutory in character, the terms and conditions specified in the agreement under which agents were appointed would also assume a statutory status. Clause 16 of the agreement, which provides for the termination of the appointment of the authorised distributors was clearly available to the Government for putting an end to the appointments at any time. In paragraph 13 their Lordships observed :- "The same conclusion is reached by another process of reasoning. The Distribution Order of 1977 does not, as mentioned above, contain any provision as to how the appointment of the agents shall be terminated. Section 16 of the General Clauses Act provides that where by any Central Act power to make an appointment is conferred, then unless a different intention appears, the authority competent to make the appointment shall have power to suspend or dismiss any person in exercise of that power. Consequently, the District Magistrate was clearly empowered as the appointing authority to terminate the appointment, as we find nothing in the Distribution Order of 1977 which might disclose a different intention. We, therefore, find no merit in the first contention raised on behalf of the petitioners." Therefore, the power to suspend the appointment of the petitioner under clause 2 (b) of the Distribution order of 1977 as agent flows from the provisions contained in Section 16 of the General Clauses Act. 7. We, therefore, find no merit in the first contention raised on behalf of the petitioners." Therefore, the power to suspend the appointment of the petitioner under clause 2 (b) of the Distribution order of 1977 as agent flows from the provisions contained in Section 16 of the General Clauses Act. 7. The second submission too stands answered by the provisions contained in Section 16 of the General Clauses Act. Clause 2 (b) of the Distribution order of 1977 has already been extracted above. It clearly authorised the District Magistrate to appoint an ' agent' (retail). Sub-clause (c) provides that a District Magistrate includes an officer authorised in writing by the District Magistrate to perform all or any of his functions under this order. This shows that the scheme of the Distribution order of 1977 is that the District Magistrate does not act as a persona designata while exercising powers under the order. 8. For the purposes of the distribution order, any officer authorised by the District Magistrate to perform all or any of his functions will be deemed to be a District Magistrate. Section 16 of the General Clauses Act provides that where by any Central Act a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power (emphasis ours'). These provisions make it clear that even if the District Magistrate, in the instant case, made the appointment of the petitioner, the District Supply Officer, while performing the functions of the District Magistrate could pass the impugned order of suspension. In Lekhraj Satram Dass Lalvani v. N. M. Saba Deputy Custodian cum-Managing Director Bombay, AIR 1966 SC 334 section 16 of the General Clauses Act came up for consideration. Section 2 (c) of the Administration of the Evacuee Property Act, 1950 defined Custodian to mean 'the custodian of the estate, include additional, Deputy or Assistant Custodian of evacuee property appointed in that behalf. In the case before the Supreme Court the Custodian appointed the appellant therein as the Manager of a certain business and the Deputy Custodian passed an order removing him from the office of the Manager. In the case before the Supreme Court the Custodian appointed the appellant therein as the Manager of a certain business and the Deputy Custodian passed an order removing him from the office of the Manager. The Supreme Court held that under section 16 of the General Clauses Act the Deputy Custodian could pass the order of removal even though the order of appointment had been made by the Custodian. This submission, therefore, fails. The failure of the respondents to give a reply to the averments made in paragraph 5 of the writ petition has enabled the petitioner to make a capital and press hard that the District Supply Officer acted without jurisdiction in passing the impugned order as he was at no stage, authorised by the District Magistrate to perform his functions. Section 13 of the Act may be read :- "13. Where an order purports to have been made and signed by an authority in exercise of any power conferred by or under this Act, a court shall presume that such order was so made by that authority within the meaning of the Indian Evidence Act, 1872." The crucial word in the afore quoted provision is " purports " as the District Supply Officer has evidently exercised the power under paragraph 16 of the agreement the terms of which according to the petitioner, have statutory force. In Azimunnissa v. The Deputy Custodian of Evacuee Properties, AIR 1961 SC 365 the provisions of section 8 (2-A) as inserted in the Administration of Evacuee Property Act, 1950 by Act No. I of 1960 came up for consideration. In Azimunnissa v. The Deputy Custodian of Evacuee Properties, AIR 1961 SC 365 the provisions of section 8 (2-A) as inserted in the Administration of Evacuee Property Act, 1950 by Act No. I of 1960 came up for consideration. This provision was in the following terms :- "(2-A) Without prejudice to the generality of the provisions contained in sub section (2) all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall notwithstanding any defect in or the invalidity of, such law or any judgment, decree, order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken." The argument pressed into service on the basis of the word " purport '' was that the vesting of any evacuee property which purported to have vested as evacuee property in the Custodian was validated notwithstanding any defect or invalidity of any law and on the commencement of the Act no. 1 of 1960 the property which purported to have vested in the Custodian which was deemed to have been declared evacuee property as such within the meaning of the Administration of Evacuee Property Act, 1950 and any order made or action taken by the Custodian must be deemed to have been validly made or taken. The Supreme Court m paragraph 20 observed :- "The word 'purport' has many shades of meaning. It means fictitious, What appears on the face of the instrument ; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the powers is not exercisable; Dicker v. Angerstein, 3 Ch. D. 600 at P. 603. Purporting is therefore indicative of what appears on the face of it or Vs apparent even though in law it may not be so. D. 600 at P. 603. Purporting is therefore indicative of what appears on the face of it or Vs apparent even though in law it may not be so. " Their Lordship opined that section 8 (2-A) made the vesting valid, because it gave validity to the vesting which purported to have taken place as a result of Ordinance No. XXVII of 1949 even though it was only apparently so and was not so in law, because that is what "purported" implies. The position, therefore, is that assuming the District Magistrate had not authorised the District Supply Officer to pass the impugned order even then apparently the order would be treated to have been passed as if he had been authorised to do so. by the District Magistrate. 9. Let us for the time being concentrate on the word “shall presume” as used in Section 13 of the Act and ignore the reference to the Indian Evidence Act made in the provision. The implication of a rebuttable presumption is not inextricably bound up in the expression "shall presume". In the words “shall presume” the words " until the contrary is proved " are not implicit or implied. The later words can be imported only either by a definition or by the context and the setting in which the words “shall presume” are used. The definition of “shall presume” in the Evidence Act cannot be extended to the other statutes unless the statute says so either expressly or impliedly. In the case at hand, however, section 13 makes a clear reference to the Evidence Act, and, therefore, we have to turn our immediate attention to the provisions contained in Section 4 of the Evidence Act wherein the word “shall presume” have been defined as " whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. " A combined reading of the provisions of section 13 of the Act and section 4 of the Evidence Act immediately indicates that there is a legal presumption that the District Supply Officer, has passed the impugned order on being authorised by District Magistrate to do so. " A combined reading of the provisions of section 13 of the Act and section 4 of the Evidence Act immediately indicates that there is a legal presumption that the District Supply Officer, has passed the impugned order on being authorised by District Magistrate to do so. In view of section 4 of the Evidence Act this presumption is a rebuttable one because the Legislature has in the same provision drawn a distinction between may presume, shall presume and conclusive proof. The words "unless and until it is disproved" in the definition of the words “shall presume” make the Legislative intent clear and unequivocal that the legal presumption is a rebuttable one. The question, therefore, is whether the unrebutted averments made in paragraph 5 of the Writ Petition read with the provisions as contained in section 106 of the Evidence Act which provide that " when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him " constitute a rebuttal to the legal presumption. To put it differently, has the petitioner succeded in rebutting the legal presumption. In State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61 the Supreme Court considered the provisions as contained in Section 4 of the Prevention of Corruption Act 1947, the relevant words of which were " Where in any trial of an offence punishable under section 161.........it is proved that any accused person has accepted.........any gratification (other than legal remuneration).........from any person, it shall be presumed unless the contrary is proved that he accepted.........that gratification.........as a motive or reward such as is mentioned in the said Section 161 ". Their Lordships held that the language employed in section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e. g. presumptions and, therefore, should have the same meaning. Their Lordships further held that in section 4 of the Evidence Act a presumption of law has been created and, therefore, it is obligatory on the Court to raise this presumption in every case brought under section 4 of the Prevention of Corruption Act, because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence. 10. 10. In Huyton-with-Roby Urban District Council v. Hunter, 1955 2 All ER 398 Lord Justice Denning drew a distinction between a legal burden imposed by law and a provisional burden raised by the state of the evidence. Legal burden rests throughout on the party concerned. As the case proceeds, the evidence may first weigh in favour of one view and then against it, thus producing a burden-sometimes apparent, sometimes real-which may shift from one party to the other, or may remain suspended between them. That is not a legal burden, however, but only a provisional burden-a burden raised by the state of the evidence from which the court may draw an inference one way or the other, but is not bound to do so. At the end of the case the court has to decide the fact in issue. If it can come to a determinate conclusion no question of the legal burden arises. His Lordships concluded :- "If it can come to a determinate conclusion, no question of the legal burden arises, but, if at the end of the case the evidence is so evenly balanced that the court cannot come to a determinate conclusion, the legal burden comes into play and requires the court to say that the local authority have not proved the case." In Sayed Akbar v. State of Karnatka, AIR 1979 SC 1848 it was emphasised that presumptions are of three types (i) permissive presumptions or presumptions of fact (ii) compelling presumptions or presumptions of law (rebuttable and Irrebuttable presumption of law or conclusive proof. '' Cls. (i) (ii) and (iii) are indicated in clauses (1). (2) and (3) of Section 4 of the Evidence Act. Their Lordships held that section 114 of the Evidence Act deals with presumptions of fact. Their Lordships further held that in case of a " presumption of law " no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. In paragraph 23 their Lordships observed :- "The distinction between the effect of the first and the second kind of presumption on the burden of proof is important. Presumptions of fact merely affect the " burden going forward with the evidence. In paragraph 23 their Lordships observed :- "The distinction between the effect of the first and the second kind of presumption on the burden of proof is important. Presumptions of fact merely affect the " burden going forward with the evidence. " Presumptions of law, however, go so far as to shift the legal burden of proof so that, in the absence of evidence sufficient to rebut it on a balance of probability a verdict must be directed, (Fleming)." The presumption of fact which arises on account of the failure of the respondents to give a reply to the averments made in paragraph 5 of the writ petition viewed in the light of the provisions contained in Section 114 of the .Evidence Act cannot defeat the presumption of law which has come into existence by combination of the provisions of section 13 of the Act and section 4 of the Evidence Act. Applying the principle laid down in the aforementioned cases of the Supreme Court and by Lord Justice Denning in Huyoton-with Roby Urban District Council's case (supra) it cannot be said that merely by the operation of the provisions of section 106 of the Evidence Act without more the presumption of law as created in section 13 of the Act stands destroyed. The conclusion, therefore, is irresistible that the petitioner cannot get any relief from this Court in proceedings under Article 226, on the ground that the District Supply Officer did not have the legal authority to pass the impugned order. 11. The last submission too stands answered by the language used in paragraph 16 of the agreement which provides that the District Magistrate shall have the right to terminate an agreement at any time without assigning any reason therefor. The crucial words are "at any time without assigning any reason therefor." In our opinion, the observance of the principles of natural justice stands excluded by necessary implication in the words emphasised by us. Moreover, it is clear from the averments made in paragraph 16 of the petition that subsequent to 29th September, 1984, when the. impugned order was passed, the petitioner made a representation to the District Magistrate and upon that representation the District Magistrate passed the following order :- "The whole matter has been called and is being investigated by Food Cell in the Government. impugned order was passed, the petitioner made a representation to the District Magistrate and upon that representation the District Magistrate passed the following order :- "The whole matter has been called and is being investigated by Food Cell in the Government. Therefore pending enquiry by Food Cell it will not be possible to consider this case at this level." This contention, therefore also fails. No other submission has been made before us. 12. In sum, the petitioner's appointment as an Agent (Retail) being contractual he cannot invoke the jurisdiction of this Court under Article 226 of the Constitution. Even on merits, he is not entitled to any relief. This petition fails and is dismissed. There shall be no order as to costs. Petition dismissed.