Judgment:
ORDER
1. This writ application is directed against the order of the Sub-Divisional Controller, Food and Supply, Basirhat placing the Kerosene Oil dealership of the petitioner under suspension and cancelling the licence after giving opportunities to show-cause and also personal hearing. The dealer-ship licence of the petitioner was temporarily suspended by the respondent No. 1, the Sub-Divisional Controller, Food and Supply Basirhat by his order dated 27-6-91 under the provision of para 9 of the West Bengal Kerosene Control Order, 1968 on the ground of several irregularities alleged to have been committed by the petitioner as enumerated in the said order. By the said order the respondent No. 1 also directed the petitioner to show-cause in writing within seven days from the date of receipt of the notice as to why his licence should not be cancelled. It was also mentioned therein that in the event of failure on the part of the petitioner to comply with the same an ex parte decision might be taken in the matter without any further reference.Subsequently, by order dated 4-10-91 conveyed under Memo No. 1631(6) the respondent No. 1 cancelled the kerosene oil dealership of the petitioner. It was stated by the respondent No, 1 in the order of cancellation of dealership that the reply of show-cause notice submitted by the petitioner had been considered unsatisfactory and the grounds advanced by the petitioner during personal hearing was also considered unsatisfactory. The order of cancellation was passed under para-9 of the West Bengal Kerosene Control Order, 1968.
2. The order of cancellation cannot be sustained for two reasons. The first reason is that the order does not deal with the reply submitted by the petitioner in response to the show-cause notice served on him. It was incumbent on the respondent No. 1 not only to consider the points raised by the petitioner in his reply to show-cause notice but also to indicate in his order of cancellation of licence as to why the reply was considered unsatisfactory. Such an order which neither is a speaking order nor is an order indicating as to why the petitioner's reply to show-cause notice was considered unsatisfactory is not tenable. It may be mentioned here that an order of cancellation of the licence of dealership which may be passed under para 9 of the West Bengal Kerosene Control Order, 1968 is an appealable order and an appeal against such order lies to the appropriate authority under para 10 thereof. Apart from the question of natural justice, or application of mind by the authority passing the order of cancellation it goes without saying that an order which is appealable must be a speaking order indicating the plea raised and giving reasons for passing the order including the reason as to why the plea taken by the person against whom the order is passed is not acceptable. Otherwise the appellate authority will not be in a position to judge the merit of the order appealed against. However even if it were not an appealable order, yet an order of this nature cancelling dealership must be a speaking order indicating the plea taken by the dealer and the reason why the same was considered unsatisfactory. The impugned order of cancellation in the present case notindicating any reason as to why the petitioner's reply to the show-cause notice was considered unsatisfactory is therefore had on that ground alone and cannot he sustained.
3. It is true that instead of filing any appeal against the impugned order the petitioner has come up before this Court in its writ jurisdiction. It has been submitted in this connection by the earned Advocate for the petitioner that the impugned order itself is without jurisdiction inasmuch as the same was passed long after 30 days from the date of the order of suspension. Para 9 of the West Bengal Kerosene Control Order, 1968 reads thus :
'9. 'Cancellation or suspension of licence
If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this Order or any condition of the licence or any direction given under para 12 of this Order, he may forthwith temporarily suspend the licence :
Provided that the agent or the dealer whose licence has been so suspended shall be given an opportunity of being heard before cancellation of the licence or revocation of the order of suspension of the licence finally by an order in writing to be made within 30 days from the date of suspension of the licence. The order shall be passed ex parte if the dealer whose licence has been so suspended fails to appear at the hearing.'
The paragraph shows that the concerned authority has a discretion to forthwith suspend the licence of a dealer temporarily if it appears that the dealer has indulged in any malpractice, etc. as is indicated by the word 'may'. It is also implicit in the said para 9 read as a whole that the appropriate authority may, instead of forthwith suspending the licence of the concerned dealer on the grounds of malpractice etc. direct him to show-cause as to why his licence should not be cancelled for any such reason. But once the concerned authority puts the licence of the dealer under suspension under the first part of the para 9, it becomes incumbent upon him to follow the provisions contained in the proviso to the saidpara 9. The proviso requires that when a dealer's licence is placed under suspension on ground of malpractice etc. certain consequences must follows, viz. (i) the dealer shall be given an opportunity of being heard, (ii) the order of suspension must be followed by an order of cancellation of the licence or revocation of suspension, and (iii) such an order which will be a final order must be passed in writing, after giving the dealer an opportunity of hearing, within 30 days from the date of suspension of the licence.
4. The question now raised is whether the provision requiring the passing of a final order under para 9 either cancelling the licence or revoking suspension within 30 days from the date of suspension of the licence is mandatory. In deciding this question we are to take into consideration the purpose of fixing a time limit of 30 days within which an order of cancellation of licence will have to be passed after giving an opportunity of hearing to the dealer or the suspension order will have to be revoked within that time. The purpose is clear that the suspension order or for that matter the proceeding in which the suspension order has been passed must not be continued beyond a period of 30 days from the date of suspension so that the dealer concerned may not be left to the freak or uncertainty of whims of the concerned authority for an indefinite period. The concluding sentence of the para 9 which says that the order 'shall' be passed ex parte if the dealer fails to appear at the hearing clearly indicates the intention and the mandate of the provision that the order will have to be passed within 30 days and if necessary even ex parte where the dealer fails to appear at the hearing. Therefore the provision regarding the time within which the order of cancellation or for that matter the order terminating the proceeding will have to be passed is clearly mandatory. The order of suspension or for that matter the proceeding in which the order of suspension was passed cannot be continued beyond the prescribed period of 30 days and the continuation of the proceeding as well as the suspension without cancellation beyond the said period is not tenable. That being so any order of cancellation of thelicence if not passed within the period of 30 days from the date of temporary suspension will also be untenable and bad in taw as well as without jurisdiction. This is a fit ground for quashing the impugned order by passing an order on this writ application. The provision of appeal will not necessarily stand in the way of the aggrieved person in approaching this court in its writ jurisdiction against an order which is passed without jurisdiction. Accordingly the writ application is allowed and the impugned order cancelling the kerosene Oil licence of the petitioner is hereby quashed. The suspension order is also quashed. The respondent No. 1 is directed to restore supply of kerosene oil to the petitioner, as licensed dealer. No order is passed regarding costs.
5. Petition allowed.