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Bhanwarlal Dugar and Sons Vs. District Magistrate, Kamrup and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 163 of 1984
Judge
ActsAssam Shops and Establishments Act, 1971 - Sections 2(4), 11(2), 25(1) and 33
AppellantBhanwarlal Dugar and Sons
RespondentDistrict Magistrate, Kamrup and ors.
Appellant AdvocateO.P. Bhati, Adv.
Respondent AdvocateD.N. Choudhary, Sr. Govt. Adv.
DispositionPetition allowed
Excerpt:
- - the learned senior government advocate, assam, failed to bring to our notice any such notification issued by the government of assam appointing the district magistrate, kamrup as 'inspector' under 'the act'.in order to salvage this position, the learned sr......'inspector' means 'an inspector appointed under this act'. section 25 of the act empowers the state government to appoint such officer or persons or class of persons to be inspectors for the purpose of the act within such limits as may be assigned to such inspectors specifically. we have, therefore, to consider whether shri s. k. agnihotri, district magistrate, kamrup, gauhati was appointed 'inspector' under section 25( 1) of the act. in order to satisfy ourselves we called upon mr. d. n. choudhary, senior government advocate, assam to place before us any notification of the government of assam appointing the district magistrate, kamrup, gauhati as 'inspector' to exercise powers and functions under the aforesaid act. the learned senior government advocate, assam, failed to bring to.....
Judgment:

Lahiri, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner, a registered firm carrying on the business of General Merchants and Commission Agents of Gauhati has approached this Court challenging the legality and validity of the order dated 24-2-1984 made by Shri S. K. Agnihotri, District Magistrate, Kamrup, Gauhati under Section 11(4) of the Assam Shops and Establishments Act, 1971, directing the shops and establishments of the Greater Gauhati Area to keep them closed on certain days of the week as specified in the aforesaid order marked Annexure-B to the petition.

2. The petitioner-firm is an establishment which attracts the provisions of the Assam Shops and Establishments Act, 1971, hereinafter 'the Act'. The main attack on the impugned order is on the ground that the District Magistrate had no jurisdiction vested in him by law to make the order. In order to appreciate the contention of the petitioner, let us read the provision of Section 11(4) of the Act : --

'11(4). The day on which shop shall be closed in each week under the provisions of Sub-section (1) shall be such day as may be specified by the employer in a notice, which shall be displayed in a conspicuous place in the shop :

Provided further that the Inspectors may, by a written order, require the shops in a particular area within their respective jurisdiction, to be kept closed on a particular day as specified in the order.'

It is apparent that the Legislature in their wisdom conferred power on the Inspectors to require the shops in a particular area within their respective jurisdiction to be kept closed on a particular day. The power can be exercised by the Inspectors 'by a written order'. In the instant case, this has been done by a written order which has been impugned in this petition. Now the question posed before us is that whether this has been done by the Inspector within the meaning of the Act Section 2(4) of the Act defines 'Inspector'. 'Inspector' means 'an Inspector appointed under this Act'. Section 25 of the Act empowers the State Government to appoint such officer or persons or class of persons to be Inspectors for the purpose of the Act within such limits as may be assigned to such Inspectors specifically. We have, therefore, to consider whether Shri S. K. Agnihotri, District Magistrate, Kamrup, Gauhati was appointed 'Inspector' under Section 25( 1) of the Act. In order to satisfy ourselves we called upon Mr. D. N. Choudhary, Senior Government Advocate, Assam to place before us any Notification of the Government of Assam appointing the District Magistrate, Kamrup, Gauhati as 'Inspector' to exercise powers and functions under the aforesaid Act. The learned Senior Government Advocate, Assam, failed to bring to our notice any such Notification issued by the Government of Assam appointing the District Magistrate, Kamrup as 'Inspector' under 'the Act'. In order to salvage this position, the learned Sr. Government Advocate produced before us a Notification issued by the State Government in exercise of the powers under Section 33 of 'the Act' which empowers all District Magistrates and Sub-Divisional Officers (Civil) to exercise all the powers vested in the State Government under the Act except those mentioned in Section 34 of the said Act. Under Section 33 of the Act the State Government may by notification in the Official Gazette authorise any officer or authority subordinate to them to exercise all or any of the powers vested in it by or under this Act except the powers mentioned in Section 34 subject to such restrictions and conditions if any as may be specified in the notification. Thus, the State Governments can delegate all or any of the powers vested in them by or under the Act. The State Government has various powers under the Act, including the power of appointment of Inspectors. If we read Section 11(2) of the Act we find that the State Government, by notification, may direct every shop or any specified class of shops to be kept closed between such hours in the afternoon of such days in each week, as may be specified in the notification in addition to closure of one day in each week as required under Section 11(1). All the powers which the State Government had under the provisions of this Act were delegated to the officers mentioned in the notification produced before us by the learned Senior Government Advocate. Now, the star question is whether by virtue of such delegation the delegatees became 'Inspectors' under Section 25(1) of the Act. In our opinion, the State Government has been conferred certain powers under the Act and all these powers are now delegated to its officers. However, the Legislature created certain class of persons styled as Inspectors, who being so appointed, could exercise some powers and perform certain functions and one such function is what is provided under Section 11(4), which is to require the shops in a particular area within their respective jurisdiction to be kept closed on a particular day, in addition to the day chosen by the employer as provided therein. No other person can make any order under Section 11(4) except the Inspector appointed under the Act as per provisions of Section 25 by the State Government. The State Government having not done so by issuing Notification in the Official Gazette as required under 'the Act', the impugned order made by the District Magistrate, Kamrup, Gauhati, is void being rendered by an incompetent authority and the same is liable to be quashed, which we hereby do.

3. In the result, the petition is allowed, but we make no order as to costs.


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