N. KUNHAMBU NAIR Vs. REGISTERING AUTHORITY FOR THE STATE OF KERALA
HIGH COURT OF KERALA
N. Kunhambu Nair
Registering Authority For The State Of Kerala
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GEORGE VADAKKEL,J. -
(1.) THE petition as originally framed was for a writ of certiorari quashing Ext.P5 order of suspension of the petitioner's registration certificate.Subsequently the original petition was amended whereby the petitioner now prays for a writ of certiorari quashing Ext.P8 cancellation order as well.The petitioner avers that on 27th November 1973 at about 9 a.m.the 3rd respondent conducted a surprise inspection of the petitioner's shop at a time when the petitioner had not yet reached his shop for the day's work.It is averred that the salesman had only just opened the shop when the 3rd respondent inspected it.By Ext.P5 dated 2 -12 -1973 the 2nd respondent suspended the petitioner's registration certificate.The reasons stated are that during the time of the inspection the 3rd respondent noticed that the petitioner had stored fertilisers in an unauthorised room,No.APW.IV 220 - -the copy Ext.P5,in the paper book shows 'VI 'instead of 'IV but it is agreed that the correct number is 'IV ' - - and that there was difference between the book value and actual stock of fertilisers.The second respondent therefore seems to have drawn an inference that these facts show that the petitioner was 'conducting sales improperly ' ;.By Ext.P5 the petitioner was also asked to submit his explanation within seven days of receipt of that as to why his certificate of regisration should not be cancelled.Even earlier on 28 -11 -1973 itself the petitioner had put in certain representations before the 3rd respondent regarding the inspection conducted on 27 -11 -1973 by the latter.Ext.P4 in the paper book is a true copy of these representations.Those representations were with reference to certain defects noted by the third respondent in the stock register maintained in the depot.Therein the petitioner stated that the goods noted as shortage were stocked in the adjacent room,that the third respondent could verify this,and that the petitioner was not present on the previous day at the time of the inspection to point out this fact.He therefore requested the third respondent to condone the defect,if any,and to verify the facts by him in those representations.On receipt of Ext.P5 the petitioner filed Ext.P7 in compliance with the direction in Ext.P5 to show cause.The petitioner denied that he was using the room referred to in Ext.P5 as a storage,that he was only keeping his tables and chairs therein and that the fertilisers were stored in the room mentioned in Ext.P3,the registration Ext.P7 is dated 17 -12 -1973.On 3 -1 -1974 the second respondent passed Ext P8 order cancelling the registration certificate.The petitioner has therefore approached this Court to quash Exts.P5 and P8.
(2.) WHEN C M.P.No.1506 of 1974 seeking to stay the operation of Ext.P8 order came up before me on 25 -1 -1974 the original petition itself was directed,at the request of counsel,to be posted to 11 -2 -1974,No interim relief was granted to the petitioner.The original petition was accordingly posted on 11 "2 "'74 at the top of the list as agreed to by the counsel on both sides.However,no counter -affidavit is filed in this original petition and I will therefore proceed on the basis of the averments made by the petitioner in his affidavits and petition.
Clause 17 of the Fertiliser(Control)Order,1957 is the relevant provision that has to be examined.Clause 17 as substituted by Notification No.16 - 19/68 -M dated 1 -11 -69 reads: œ17.Power to cancel registration certificate, - A registering authority may.after giving the holder of a certificate of registration,an opportunity of being heard,cancel or suspend the certificate of registration,on any of the following grounds,namely:"
(a)that the certificate of registration had been obtained by misrepresentation as to a material particular;and
(b)that any of the provisions of this Order or any condition of the certificate of registration has been contravened."
It is therefore clear that the registering authority can suspend or cancel the certificate of registration only after giving the holder of the certificate of registration an opportunity of being heard.The complaint before me is that no opportunity was given to the petitioner as contemplated by clause 17 before Ext.P5 order of suspension was passed.It is also contended that though by Ext.P5 he was called upon to explain as to why the certificate should not be cancelled and though he filed his representations even earlier to it before the 3rd respondent and after receipt of Ext.P5 before the second respondent,Ext.P8 order of cancellation has not adverted to the facts raised therein.Obviously the learned counsel is referring to Ext.P4 and Ext.P7 representations already referred to.It is also contended that the petitioner has not violated any provision of the Order or any one of the conditions attached to the certificate of registration.The submission is that there is no provision in the Order,and no condition attached to the certificate of registration prohibiting change of premises.
(3.) IN my view both the contentions stated above are well -founded.Under clause 17 before suspending the certificate the authority will have to give an opportunity of being heard to the holder of the certificate of registration.Ext.P6 does show that any opportunity was given to the petitioner before his certificate of registration was suspended.Though it is dated 2nd December,1973 and though the very next day after the day of inspection the petitioner put forward certain representations with reference to the defects noted by the 3rd respondent in the stock register,Ext.P5 does not refer to any of these facts,Ext.P8 also is laconic.The contentions raised by the petitioner in Exts.P4 and P7 have not been noticed by the second respondent in passing Ext.P8.The only statement in Ext.P8 concerning the petitioner's explanation regarding the deficit is:"Your contention that there was no deficit where deficit was actually noticed on physical verification cannot also be accepted."It should be remembered that his objection in Ext.P4 was that some of the goods were stored in the adjacent room.This aspect has not been adverted to by the second respondent.;
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