P L D 1976 Lahore 919 (PLP)

This order will dispose of four Writ Petitions, bearing Nos. 2608 ,of 1975, 2609 of 1975, 2794 of 1975 and 2879 of 1975, as the contention urged .in their support is the same.

2. The petitioners are depot‑holders having been granted authorisations under paragraph 4(1) of the West Pakistan Wheat, Wheat Atta. Maize, Rice .and Sugar Distribution Order, 1967 (hereinafter referred to as the Distribution Order). Raids were conducted by Magistrates, who inspected" the Ration Depots and detected the commission of serious irregularities. On, the basis of their reports criminal cases under the West Pakistan Foodstuffs (Control) Act 1958 have been registered against the petitioners, Meanwhile, the District Food Controller suspended their authorisations pending final' action with regard to the cancellation of the authorisations, . .

3. Although in the Writ Petitions several matters were raised, during the course of arguments before me challenge has been thrown by the petitioners only to the action of the District Food Controller to suspend their authorisations.

4. Only one ground has been urged in this connection, namely, that only an "Inspector" within the meaning of clause (k) of paragraph 2 of the Distribution Order could enter into the premises of the petitioners to carry out a search in order to ascertain whether any contravention of the Order has been committed. As the Magistrates who conducted the search of the depots of the petitioners could not be "Inspectors", the action taken against. the petitioners, suspending the authorisations of their depots. was without lawful authority.

5. The term "Inspector" has been defined in clause (k) of paragraph 2: of the Distribution Order as follows :‑ "Inspector" means the District Magistrate, any Gazetted Officer of the Food Department, Assistant Food Controller, Assistant Ward Rationing Officer, Inspectors of Food Department within their respec tive jurisdiction and any other official as may be appointed as such by the Government or the District Magistrate or the Director for the purpose of this Order." In these cases the search into the premises of the petitioners was conducted, by Mr. Gulzar Ahmad Bhatti, Magistrate, First Class, Kasur (respondent No. 1 to W. P. 2609 of 1975 and also in W. P. 2794 of 1975). Syed Anwar Hussain, M. I. C., Kasur (respondent No. i in W. P. 2608 of 1975) and Sardar Bashk Ahmad Dogar, M I. C., Kasur (respondent No. 1 in W. P. 2879 of 1975). The learned counsel appearing on behalf of the respondents placed on record on order of the District Magistrate, Lahore, dated 4‑9‑1975, whereby the above‑noted persons were appointed as Inspectors for inspection of Ration Depots. The said order is in the following terms "The Assistant Commissioner, Kasur, and Messrs Bashir Dogar, Gulzar Bhatti, Anwar Hussain and Fazal Mahmood, E. A. Cs., are hereby appointed under section 2(k) of the West Pakistan Foodstuffs Distribution Order, 1967 to inspect the Ration Depots."

6. The learned counsel for the petitioners expresses: some doubt as to the authenticity of this order, especially with regard to the point of this order having been issued on 4‑9‑1975. According to him the raids were conducted on 19‑9‑1975 and the above order was presumably issued thereafter and anti‑dated. In order to satisfy myself on this point the original records were sent for and I have no doubt that the above order was in fact passed, on 4‑9‑1975, much before the raids were conducted on the depots of the petitioners.

7. The learned counsel for the petitioners, however, submitted that the District Magistrate could not farther delegate his power to Magistrates and, therefore, the raids conducted by the Magistrates concerned were= unauthorized. In this connection he referred to section 3 of the West Pakistan Foodstuffs (Control) Act, 1958, which, to the relevant extent, is in the following terms :‑ "

3. Powers to control supply, distribution etc., of foodstuffs.‑(1) The Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair price may by notified order provide for regulating or prohibiting the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by subsection (1) an order made thereunder may provide :‑ (a) .. (b) . (c) . (d) (e) (g) .. (h) (i) for any incidental and supplementary matters including, in particular,l the entering and search of premises . . . . the seizure by a person authorized to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be committed . . . . ." The argument, in brief, is that section 3 of the Foodstuffs (Control) Act empowers the issuance of a notified order with a view to control the supply and distribution etc. of foodstuffs and to ensure compliance with its provisions and see that its provisions are not contravened. A notified order has been defined in the Act to mean an order notified in the official Gazette (See section 2(c) of the Foodstuffs (Control) Act, 1958). Irc pursuance of the powers conferred by section .3 of the Foodstuffs (Control) Act, 1958, the Governor of West Pakistan made the Distsibution Order of 1967, which was published in the official Gazette and paragraph 2(k) of the said Order defines the word "Inspector" to mean, inter alia, the District Magistrate. Consequently, the District Magistrate could not, thereafter, appoint any other person to be an Inspector, as this would amount to further delegating his powers, which could not be done in view of the established legal principle "delegatus non potest delegare (A delegate cannot delegate). Since under paragraph 17 of the Distribution Order it is only an Inspector who may enter any premises, ask any person all necessary questions and search any person, or premises in case he has reason to believe that a contravention of any provisions of this Order has been committed, the action taken by the Magistrate in all these cases was unauthorised, in so far as the subsequent action of suspension of their authorisation is based on the said illegal action. The said action of suspending the authorisation is founded on something which is itself bad and will also necessarily be of no legal validity (See Yousof Ali v. Muhammad Aslam Zia (PLD1958SC(Pak.)104).

8. Thus the short question is whether the appointments of the ‑Magistrates, who inspected the depots were illegal or not.

9. It is to be noted, in the first instance, that the Foodstuffs (Control) Act, 1958 does not define who is an Inspector. It is only the Distribution xOrder of 1967 which defines the term "inspector" in paragraph 2(k) whereof. A perusal of the said provision shows that an Inspector means "the District Magistrate and . . . . any other official as may be appointed as .such . ... by . . . . or the District Magistrate . . . . for the purpose of this Order." Thus in this case the Distribution Order itself defines the person who can act as Inspector for the purpose of the Order and they are, inter alia, the District Magistrate and any other official as may appointed by him. Therefore, in the instant case, there is no delegation by the District Magistrate to some other authority of his own authority. He continues to remain an Inspector along with a large number of other persons, who can be termed as Inspectors and he is authorized to appoint other . officials to be Inspectors for the purpose of this Order by the Order itself. In the famous case of Huth v. Clarke ((1890)25QBD391) it was laid down that the person to whom an office or a duty is delegated cannot lawfully devolve the duty upon another, unless he be expressly authorised so to do. The same principle has been mentioned by S. A. de Smith in his Book "Judicial Review of . Administrative Action" while discussing the principle elicited from cases . dealing with the maxim delegatus non potest delegare as follows :‑ "Where the exercise of a discretionary power is entrusted to a named officer‑e.g., a Chief Offcer of Police, a Medical Officer of Health, a town clerk or an inspector‑another Offcer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the adminis trative convenience of allowing a deputy to act as an authorised agent clearly outweighs the desirability of maintaining the principle that the Officer designated by statute should act personally. (See Judicial Review of Administrative Action by S. A, de Smith, pages 179‑180, 1959 Edition). In this case, clause (k) of paragraph 2 of the Distribution Order makes express provisions for the District Magistrate to appoint any other official ‑to act as Inspector and, therefore, his order dated 4‑9‑1975, appointing the Magistrates who conducted the raids upon the depots of the petitioners was within the meaning of the Distribution Order.

10. It was lastly suggested that the appointments of the Inspector should have been by a notified order.

11. There is no basis for this plea. Section 3 of the Foodstuffs (Control) Act no doubt requires that any order issued to carry out its purpose must be through a notified order and the Distribution Order is ,an example in point, as it was duly notified in the Gazette of West Pakistan .Extraordinary, dated 16th August 1967, but the provisions of the Distribution .Order nowhere require that the orders passed by the persons designated to carry out the purposes of the said orders should also be made by notification in the offcial Gazette.

12. No other point was raised in this Writ Petition. Since the only ;‑poirt urged ix without force, this Writ Petition cannot succeed.

13. W. P. 2608 of 1975 is also liable to be dismissed on the further ground that the petitioner therein has moved a revision petition before the Government against the impugned order and succeeded in getting a stay order from the Government. He has thus successfully invoked another remedy. As a petition under Article 199 of the Constitution is competent only if no other adequate remedy is available for the redress of the wrong challenged therein, this Writ Petition is not maintainable.

14. The over‑all result is that these Writ Petitions fail and are accordingly dismissed, but the parties are left to bear their own costs since a question of law of some complexity arose for determination. s. Q. Petition dismissed.