P L D 1982 Lahore 166 (PLP)

The‑ dispute in this case relates to the cancellation of depot/authorization by an order dated 22‑1‑1981 of the District Magistrate, Sheikhupura, in the exercise of his power under section 3 of the Foodstuffs and Fertilizers (Cancellation of Authorization and Dealerships) Ordinance, 1978 (hereinafter called the Ordinance).

2. Briefly the facts of this case are that the petitioner was allotted a depot for village Ghulla, Circle Feroze Wattuan, Tehsil and District, Sheikhupura under the provisions of the West Pakistan (Foodstuffs) Distribution Order, 1967 by an order of District Magistrate, Sheikhpura on the recommendation of the District Allotment Board. Later, the allotment of the depot was suspended by an order dated 3‑i2‑1980 of the District Food Controller, Sheikhupura. The petitioner being aggrieved with the aforesaid order successfully challenged the same in appeal before the Deputy Director Food, Lahore, who by his order dated 24‑12‑1980, accepted the appeal. Subsequently, the District Magistrate. Sheikhupura, vide his order dated 21‑1‑1981, in the exercise of his powers under section 3 of the Ordinance, cancelled the authorization of the depot.

3. The impugned order has been assailed, mainly, on the ground that the termination of authorization was not simpliciter but there were allegations of irregularities and mal-practices, .particularly on the basis of the same material as bad been considered in the earlier proceedings but the petitioner was exonerated of the charges by the Deputy Director Food and, therefore, the petitioner was entitled to an opportunity to show cause against the same alleged irregularities and mal-practtces committed by him. He, however, submits that apparently. no objection can be taken to the cancellation of authorization simpliciter but if the cancellation is on account of mal-practices and irregularities committed by the petitioner and there is a stigma attached to the order of cancellation, then he is entitled to a reasonable opportunity to show cause against the action proposed on account of a stigma.

4. The decision in this case merely turns on the interpretation of section 3 of the Ordinance which reads thus; "

3. Power to cancel Authorizations and Dealerships.‑(I) Notwithstand ing anything contained in any other law for the time being in force or in any contract, agreement, order or notification, the Government. may terminate, without notice, any authorization or dealership. (2) No compensation shall be payable for the termination of any authorisation or dealership under subsection (1)."

5. Mr. Dilawar Mahmood, the learned counsel for the petitioner has frankly conceded before me that in view of the phraseology used in section 3 of the Ordinance, a naked power is available with the Government for terminating/cancelling any authorisation or dealership without notice and, therefore, ordinarily, the question of issuing any show‑cause notice before terminating the authorisation or dealership does not arise. The learned counsel for the petitioner, however, submits that if an order passed under section 3 of the Ordinance is an order of termination simpliciter of authori sation or dealership, a. show‑cause notice is not required but if an order is passed mala fide or the order contains stigma to the petitioner on account of alleged irregularities and malpractices committed by him then he is entitled to opportunity to show cause against the proposed action. In support of his contention, the learned counsel for the petitioner has referred to the Secretary, East Pakistan Industrial Development Corporation, Dacca v. M. D. Siraj ul Haq (1) and Muhammad Azhar v. The Commissioner Karachi (2).

6. There appears to be great force in the submissions made by the learned counsel for the petitioner and the learned Additional Advocate General, is unable to rebut the contention that section 3 of the Ordinance, merely contemplates that the Government may terminate without notice any authorisation or dealership and this termination envisages a termination simpliciter and not by way of stigma. I am, therefore, inclined to agree with the submissions made by the learned counsel for the petitioner.

7. In terms of section 3 of the Ordinance, the Government has the legal authority to terminate an authorization or dealership without any show- cause notice and it may do so without assigning any reason whatsoever. But if the termination is intended by way of stigma or if the order of termination of authorisation or dealership is made mala fide, the Courts will strike it down not because no show‑cause notice was given, but on the ground that the authority concerned has abused the power vested in the Government to terminate the authorisation or dealership. The Ordinance is undoubtedly penal in nature and is, therefore, to be strictly construed. It gives naked powers to the Government and or its delegated to terminate authorisation or dealership of a depot without notice. This power, however. cannot be enlarged so as to empower the District Magistrate to condemn A unheard a depot‑holder and attach a stigma to his name or goodwill without giving an opportunity of hearing to him. This is clearly not permissible) in law and such an unjust intention could never be imputed to the legislature.

8. Be that as it may, it appears that the petitioner is not, directly, aggrieved with the cancellation of the depot but with the allegations attributed to him without providing him an opportunity to rebut the same. (1) (1970) S C M R 398 (2) P L D 1966 S C 253

9. In view of the above, the allegations attributed to the petitioner are quashed and the case is remanded to the District Magistrate, Sheikhupura, for passing an order afresh in accordance with law.

10. It may be pointed out that during the pendency of the writ petition, the authorisation of the depot; in question, has already been given/attached to some other person who is not a party to these proceedings. In these circumstances, this order will not have the effect of automatically restoring the depot to the petitioner.

11. With these observations, the writ petition is accepted with no order as to costs. s. G. D. Petition allowed.