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Writ Petition No. 119 of 1976, decided on 14th April 1975.
‑‑.‑ Pares. 2, 4 & 6‑ Cancellation of authorisation‑Additional Deputy Commissioner (General) or Additional District Magistrate granted powers of District Magistrate‑Cannot be considered as District Magistrate competent to cancel "authorisation" under Order.
A scrutiny of the provisions of the,. Distribution Order shows that 'District Magistrate' is defined in clause (e) of para. 2 of the Order to mean "the District Magistrate of the District concerned". This definition is in sharp contrast with the definition of "Commissioner" given in clause (b) of para. 2, which has been defined to mean "the Commissioner of the Division concerned and Includes the Additional Commissioner". This shows that where an authority in addition to the named authority may also exercise the powers of the said named authority, mention of the said authority is made specifically. In this context, the failure to include the Additional Deputy Commissioner or the Additional District Magistrate in the definition of "District Magistrate" is, therefore, significant.
This conclusion is also supported by other provisions of the Order.
Similarly, it is the District Magistrate who can pass an order suspend ing or cancelling an authorization under para. 6 of the Distribution Order. Obviously the person who can pass orders for cancellation or suspension under this para. must be the same person who is to grant the "authorization under para. 4 of the Order. This person, as already observed, appears to be the District Magistrate of the District himself and no other person.
Since para. 6 of the Order lays down that only the District Magistrate could pass an order of cancellation, therefore, any order passed by any other authority would be a nullity and the order arming the same is also of no avail.
Neither an Additional Deputy Commissioner (General) nor an Addi tional District Magistrate who is granted the powers of a District Magis trate can be considered as the District Magistrate who is competent to cancel an "authorization" under the West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order of 1967.
Abdul Kader v. Chairman, Dacca Municipality P L D 1958 Dacca 425 ; Shaheen Flour & General Mills v. The Province of West Pakistan W. P. No. 925 of 1967 ; Atta Muhammad Qureshi v. Settlement Commissioner P L D 1971 S C 61 and Yousaf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104 ref.
S. M. Zafar (not appeared on 20‑3‑75) with Syed ABid Hussain for Petitioners.
M. M. Screed Beg for A: G. for Respondents. Sh. Bashir Ahmad Assistant Food Controller, Rawalpindi also present.
Dates of hearing : 13th, 14th, 17th, 20th March and 14th April 1975.
The petitioners were granted authorizations to distribute wheat, wheat atta, maize, rice and sugar under pare. 4 of the West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order, 1967 (hereinafter referred to as the Distribution Order of 1967) by the District Magistrate, Rawalpindi. These authorizations were cancelled by Mr. Shahzad Hassan Pervaiz, Additional District Commissioner (General), Rawalpindi, exercising the powers of District Magistrate, Rawalpindi, by a separate order passed in the ease of each petitioner, on 10‑1‑1975. The grounds for the above orders were that they did not posses licences under the Punjab Sugar Licensing Control) Order, 1972 and the West Pakistan Foodgrains (Licensing Control) Order, 1957 and that they were guilty of commission of certain irregularities. The appeals directed against the said orders by the petitioners were dismissed by the learned Additional Commissioner, Rawalpindi, by separate orders passed by him on 15‑1‑1975. This single Writ Petition has been preferred against the above orders whereby the authorizations granted in favour of the petitioners were cancelled and the appeals preferred against the said orders were dismissed, as the validity of these orders has been questioned on common questions of law.
2. Three contentions have been raised in support of this petition :‑
(1) The authorization could legally be cancelled only by the District Magistrate of the District and not by an Additional Deputy Commis sioner, exercising powers of the District Magistrate ;
(2) that as the petitioners had been granted authorizations under para. 4 of the Distribution Order, 1967, they were not bound to take out either the sugar licence or the foodgrain licence ; and
(3) that the orders passed suffer from mala fides.
After hearing the learned counsel for the parties, I have come to the conclusion that there is force in the first contention raised on behalf of the petitioners and, therefore, the orders of cancellation of the authorizations cannot be upheld.
3. Under paragraph 6 of the Distribution Order, the District Magistrate may for reasons to be recorded in writing pass an order cancelling an authorization. In this case the orders cancelling the authorizations of the petitioners have been passed by the learned Additional Deputy Commis sioner (G), Rawalpindi. However, the said officer was granted the powers of the District Magistrate, through Notification No. 8(10)SO(B&C)/70 dated 13th April 1974. This notification is in the following terms
"In exercise of the powers conferred by subsection (2) of section 10 of the Code of Criminal Procedure, 1898, the Governor of the Punjab is pleased to appoint Mr. ShaHzad Hassan Parvez, Additional Deputy Commissioner (General), Rawalpindi District, exercising the powers of the Magistrate First Class, as Additional District Magistrate and to further direct that he shall exercise all the powers of District Magistrate under the said Code or under any law for the time being in force, in the said District, from the date of taking over charge."
4. It is true that the Distribution Order of 1967 is included in the phrase "any other law for the time being in force" referred to in sub section (2) of section 10 of the Code of Criminal Procedure. Under this provision of the law the Provincial Government is empowered to appoint any Magistrate of the 1st Class to be an Additional District Magistrate and to direct such Additional District Magistrate to exercise the powers of a District Magistrate under the Code "or under any other law for the time being in force". "Pakistan Law" means, inter alts, an Order, which has the force of law vide clause (45) of section 2 of the West Pakistan General Clauses Act, 1956. Hence the Distribution Order of 1967 comes within the scope of the phrase "any other law for the time being in force". Nevertheless the other aspect that has to be seen while considering whether an Additional District Magistrate can exercise the powers of the District Magistrate under any other law, is to scrutinize whether the said law does not contain any indication to the contrary. The following passage occurring in a judgment of a pre‑Partition Indian High Court and quoted with approval in Abdul Kader v. Chairman, Dacca Municipality P L D 1958 Dacca 524 enunciate this principle with clarity as follows :‑
"Section 10(2), Criminal P. C., which authorises Additional District Magistrates to exercise all the powers of a District Magistrate under "any other law", clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's power under some special law which enacted that the District Magistrate alone and no other person or authority should be empowered to do a certain Act. The matter is obvious when there is an express prohibition but the result is the same when a prohibition is implied."
The contention is that although there is no express prohibition in the Distribution Order, forbidding an Additional District Magistrate from exercising the powers of the District Magistrate such a prohibition can be read into the provisions of the Distribution Order of 1967 by necessary implication, if it is read as a whole and on so doing it becomes clear that the Distribution Order empowers the District Magistrate alone to exercise the relevant power. It is, therefore, necessary to minutely scrutinise the provisions of the Distribution Order of 1967 in order to determine whether its provisions read as a whole intend to give exclusive jurisdiction in this respect to the District Magistrate.
5. A scrutiny of the provisions of the Distribution Order shows that 'District Magistrate' is defined in clause (e) of para. 2 of the Order to mean "the District Magistrate of the District concerned". This definition is in sharp contrast with the definition of "Commissioner" given in clause (b) of para. 2, which has been defined to mean "the Commissioner of the Division concerned and includes the Additional Commissioner". This shows that where an authority in addition to the named authority may also exercise the powers of the said named authority, mention of the said authority is made specifically. In this context, the failure to include the Additional Deputy Commissioner or the Additional District Magistrate in the definition of "District Magistrate" is, therefore, significant. I am fortified in this conclusion by the view taken by a Division Bench in Shaheen Flour and General Mills v. The Province of West Pakistan (W. P. 925 of 1967), the head note whereof is reproduced in the Law Notes 1968 Lah. (N. U. C.) 2(a) and the relevant part of the judgment is as follows :‑
"District Magistrate" is defined in the Order in clause 3 of section 2 as follows :‑
"District Magistrate means the District Magistrate of a District.
It is obvious that under this definition it is the District Magistrate of the District alone, as contemplated by the proviso to clause 10 to whom an appeal will lie against the cancellation of a licence by the licensing authority and not to any other officer who may also be invested with the powers of a District Magistrate under the Criminal Procedure Code."
Although this decision was given while considering the provisions of the West Pakistan Foodgrains (Licensing Control) Order, 1957. The above dictum is fully applicable as the provisions of this Order are in pari materia with the Distribution Order.
6. This conclusion is also supported by other provisions of the Order. For example in clause (h) of para. 2 'District Allotment Board' is defined to mean 'a Board composed of such officers as the District Magistrate may appoint for the selection of suitable persons for appointment as retail distributors in the District'. Under para. 4 of the Order the District Magistrate may authorize any person to distribute wheat, wheat atta etc. for consumption, on the recommendation of the District Allotment Board. The intention appears to be to empower the District Magistrate, as the Chief Executive Administrator of the district, alone to appoint the members of the District Allotment Board, whose recommendations can be taken into account while granting authorizations to persons to distribute wheat, wheat atta, maize, rice and sugar, under the Distribution Order. Similarly, it is the District Magistrate who can pass an order suspending or cancelling an authorization under para. 6 of the Distribution Order. Obviously the person who can pass orders for cancellation or suspension under this C para. must be the same person who is to grant the "authorization under para. 4 of the Order". This person, as already observed, appears to be the District Magistrate of the District himself and no other person.
7. Learned counsel for the respondents also argued that even if the above argument was to be accepted, it should be noted that an appeal had been preferred against the order of respondent No. 1 which was dismissed by the competent authority. Hence the irregularity, if any, in the matter of the cancellation of the authorisation should be deemed to have been cured.
8. This argument is without force, because when a mandatory requirement of the statute is contravened, the order is a nullity (vide Atta Muhammad Qureshi v. Settlement Commissioner P L D 171 S C 61. Since para. 6 of the Order lays down that only the District Magistrate could pass an order of cancellation, therefore, any order passed by any other authority would be a nullity and the order affirming the same is also of no avail (vide Yousaf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104. On this view of the matter, the impugned orders passed by the respondent No. 1 as well as the order passed by the Additional Commissioner must be declared to have been passed without lawful authority and to be of no legal effect. In this view of the matter, it is not necessary to give my considered view on the other two contentions raised in support of the petition.
9. The operative part of this order was announced at the conclusion of the hearing as follows :‑
"For reasons to be recorded separately, I am of the view that neither , an Additional Deputy Commissioner (General) nor an Additional District Magistrate who is granted the powers of a District Magistrate can be considered as the District Magistrate who is competent to cancel an "authorization" under the West Pakistan Wheat, Wheat Atta, Maize, Rice and Sugar Distribution Order of 1967. Consequently, the impugned orders passed by Mr. Shahzad Hassan Parvez, Additional Deputy Commissioner (G), Rawalpindi as District Magistrate, are without lawful authority.
The result is that the authorizations granted to the petitioners by the District Magistrate, Rawalpindi, shall be treated to be operative, until cancelled by the competent authority, fn accordance with the law.
The Writ Petition succeeds, but parties shall be left to bear their own coats."
The above are the reasons for the above conclusion.
S. A. H. Petition allowed.
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