Research › Browse › Judgment

Gauhati High Court · body

1989 DIGILAW 106 (GAU)

Jiban Chandra Deka, Bjjay Lakshmi Mahanta and Jahur Ali v. Deputy Commissioner, Kamrup

1989-06-08

B.P.SARAF, S.N.PHUKAN

body1989
S. N. Phukan, J.-By this common judgment and order we propose to dispose of Civil Rule Nos. 645, 646 and 1196 of 1982. 2. Licenses of all the petitioners granted in terms of the provisions of Assam Food-stuff (Distribution) Control Order, 1958 for short the Order as retailer of fair-price shops were cancelled by invoking provisions of para 2 -A of the aforesaid Order on the ground that on 15. 6. 82 petitioners did not keep their shops open. 3. On 15. 6. 82 normal work, business and movement were disrupted in the City of Gauhati on account of a call for 'Bundh' given by the leaders of the Assam Movement. It is stated that petitioners went to their shops and made all possible endeavour to open their shops on that day but could not do so due to physical obstruction given by the picketers. Show cause notices were issued on the petitioners for keeping their shops closed and on cause being shown the impugned orders were passed revoking the appointment of petiti­oners as 'appointed retailer'. On perusal of the impugned order it appears that the Deputy Commissioner, Kamrup at Gauhati passed the order for violation of paragraph 22-A of the Order. 4. We have heard Mr. A. Sarma, learned senior counsel for the petitioners and we are satisfied that the impugned orders cannot stand for the reasons which we shall presently state. 5. Sub-para (1) of paragraph 3 of the Order, inter alia, provides that with a view to distributing food-stuffs under the government scheme the Director may appoint in respect of any area, person as a retail dealer in respect of any food-stuff for the purposes of the Order. Sub-para (2) pf said paragraph ,3 of the Order empowers the Director, after giving an opportunity of stating his case and by recording reasons in writing to vary, suspend or revoke the appointment of a retail dealer. The Director may pass such order if in the interest of general public it is, necessary or expedient to do so. Paragraph 22-A runs as follows:- "22-A :-Every appointed retailer to whom any order or direction is issued under any powers conferred by or under this Order shall comply with such order or direction." 6. The above powers of the Director were delegated to the Deputy Commissioners and Sub-Divisional Officers in 1958. Paragraph 22-A runs as follows:- "22-A :-Every appointed retailer to whom any order or direction is issued under any powers conferred by or under this Order shall comply with such order or direction." 6. The above powers of the Director were delegated to the Deputy Commissioners and Sub-Divisional Officers in 1958. Paragraph 22-A does not empower the Deputy Commissioner to cancel a licence. For such cancellation the Deputy Commissioner has to exercise powers under sub-paragraph (2) of paragraph^ of the Order. Reading the said sub-paragraph we are of the opinion that for suspension, revocation etc. of the appointment of a retail dealer appointed under the Order following conditions must be satisfied: - The retailer must be given an opportunity to show cause: in other words the principle audi alteram partem must be observed. The Deputy Commissioner must be satisfied that in the interest of general public it is necessary or expedient so to do and reasons for passing the order must be recorded in writing. 7. We can take judicial notice of the fact that a retail dealer appointed under the Order is a petty trader and if his licence is revoked he will be deprived of his livelihood which is a fundamental right as laid down by the Apex Court in the landmark decision rendered in Olga Tellis and others vs. Bombay Municipal Co­rporation, 1985 (3) SCC 545 . The petitioners cannot be deprived of fundamental right unless there is valid, cogent and compelling reasons and circumstances. 8. The allegation in the case in hand that the petitioners kept their shops closed on the date in question and it was clearly repr­esented by the petitioners before the Deputy Commissioner, Kamrup at Gauhati that there was a general call for "Bundh" and inspite of their best effort the petitioners could not open their shops as they were obstructed physically. On perusal of the impugned order we find that the Deputy Commissioner did not consider at all this aspect of the matter. Following the legal maxim 'lex nori cogit ad impossibilia' we reiterate the settled law that a person cannot be forced to do something which is impossible to do. On perusal of the impugned order we find that the Deputy Commissioner did not consider at all this aspect of the matter. Following the legal maxim 'lex nori cogit ad impossibilia' we reiterate the settled law that a person cannot be forced to do something which is impossible to do. In the case in hand in view of clear statement that it was a 'Bundh' day and that the petiti­oners were obstructed physically, the order of the Deputy Commis­sioner, if any, to keep shops open was illegal inasmuch as by the said order the petitioners were asked to do something which it was impossible on their part. Though in the impugned order the Deputy Commissioner has stated that the revocation was done in the public interest there is absolutely no material either in the record or in the impugned orders that there was any public interest to keep the shops open. As stated earlier according to sub-paragraph (1) of paragraph 3 of the Order appointment of a person as retail dealer in respect of any food-stuff is made with a view to distribute food-stuffs. It is impossible to comprehend how on a 'Bundh' day a card-holder would go to the retail dealer to purchase his food-stuffs. Even if such shops are closed on a 'Bundh' day it will not cause any inconvenience to general public and so the question of public interest does not arise. From the fact of the present petitions we donot find that the petitioners did anything which was against public interest. 9. Paragraph 22-A imposes a duty on a person appointed as a retail dealer to comply with any direction or order. If a person wilfully violates such order or direction there may be an occasion to take action by exercising powers under sub-para (2) of para 3 of the Order. But if such violation is not wilful or it is impossible to obey such direction or order no action can be taken against such person. There was no wilful violation by the petitioners of any order of the Deputy Commi­ssioner and it was also not possible by them to keep the shops open. 10. From what has been stated above, we are of the opinion that the impugned orders are liable to be quashed which we hereby do. In the result, all the petitions are allowed and the impugned orders are quashed. No costs. Dr. 10. From what has been stated above, we are of the opinion that the impugned orders are liable to be quashed which we hereby do. In the result, all the petitions are allowed and the impugned orders are quashed. No costs. Dr. B.P.Saraf, J.- I agree.