N.P. Kuttykrishnan Pillai v. District Collector, Collectorate, Alappuzha; Taluk Supply Officer, Mavelikkara

C.R. IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938 WP(C).No. 8971 of 2009 (N) --------------------------- PETITIONER(S): ------------- N.P.KUTTYKRISHNAN PILLAI, AGED 54 YEARS, S/O.LATE K.NARAYANA PILLAI,, PROPRIETOR, CORAL AGENCIES, PUTHIYACAVU,, MAVELIKKARA-690101, ALAPPUZHA DISTRICT. BY ADVS.SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.ABU MATHEW SMT.LAKSHMI B.SHENOY SRI.SOBHAN GEORGE RESPONDENTS: ------------- ----------- ## 1. THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA. 2. THE TALUK SUPPLY OFFICER, MAVELIKKARA. BY GOVERNMENT PLEADER, SRI SANTHOSH PETER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-012017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8971 of 2009 (N) ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF SHOW CAUSE NOTICE NO CS9.6200/07 DT.20.12.2007 ISSUED BY 1T RESPONDNT TO PETITIONER'S EXT.P2 TRUE COPY OF EXPLANATION DATED 11.2.2008 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT EXT.P3 TRUE COPY OF ORDER NO. C29 6200/07 DATED 3.3.2009 ISSUED BY 1ST RESPONDENT TO PETITIONER. ## RESPONDENT'S EXHIBITS : NIL TRUE COPY PA TO JUDGE C.R. ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - W.P.(C) No.8971 of 2009 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of January 2017 ## JUDGMENT The petitioner was a retail distributor of Liquefied Petroleum Gas. On 26.11.2007, the Rationing Inspector attached to the office of the 2[nd] respondent inspected the godown of the petitioner and in the said inspection, irregularities were detected. On the basis of the above irregularities, the petitioner was served with Ext.P1 notice, for which the petitioner submitted Ext.P2 explanation. Thereafter, Ext.P3 order was passed by the first respondent, after hearing the petitioner and considering the contentions WPC 8971/2009 : 2 : raised by the petitioner in Ext.P2 explanation. It was observed in Ext.P3 order that there was shortage of 103 filled LPG domestic cylinders, twelve empty LPG domestic cylinders and three empty commercial LPG cylinders. Two filled commercial cylinders (19 KG) and twelve empty commercial cylinders (5 Kg.) were found to be in excess in the inspection. The Stock Board and Stock Register were not maintained since 24.11.2007. The Back Log of filled cylinders booking were not shown since 10.10.2007. As per Ext.P3 order, the first respondent directed the petitioner to pay a fine of Rs.1,91,874/- within a period of 7 days from the date of receipt of Ext.P3 order. 2. Heard both sides. 3. It has been argued by the learned counsel for the WPC 8971/2009 : 3 : petitioner that there is no provision under Section 6-A of the Essential Commodities Act, 1955 (for short 'the Act') to award fine for the violation of Section 3 of the Act and in the said circumstances, the order impugned is not sustainable. The learned Public Prosecutor on the other hand supported the order impugned and contended that this revision petition is not maintainable in view of the statutory remedy of appeal under Section 6C of the Act. 4. It appears from Ext.P3 order that the said order was passed under Sections 6A and 6B of the Act. Section 6B of the Act provides for issuance of Show cause notice before confiscation of food grains. Section 6A(1) of the Act is the provision empowering the first respondent to WPC 8971/2009 : 4 : confiscate the essential commodity. The 2[nd] proviso to Section 6A(1) of the Act provides that in case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price as on the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. Section 6A(1) of the Act or its second proviso does not empower the District Collector to give an option to pay in lieu of confiscation of essential commodity, a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized WPC 8971/2009 : 5 : along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by S.6A (2) of the Act is granted. The power conferred by S.6A(2) of the Act to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity. The above view gains support from the decisions of the Honourable Apex Court in Shambhu Dayal Agarwala v. State of West Bengal and another [1990(3) SCC 549] and State of Bihar and another v. Arvind Kumar and another [2012 KHC 4395 : 2012 (12) SCC 395]. 5. In the case on hand, there can be no doubt that the 2[nd] proviso to Section 6A(1) of the Act is not attracted. Therefore, there was no scope for awarding fine as WPC 8971/2009 : 6 : awarded in Ext.P3 order. The first respondent has no power to impose fine in lieu of confiscation of the essential commodity under Section 6A(1) of the Act even if an essential commodity is seized. However, in this case, no essential commodity was seized even though irregularities were detected in the inspection. On going through the provisions of Section 6A of the Act, it is clear that Section 6A of the Act does not contemplate a situation where irregularities are detected and the essential commodity is not seized. Therefore, there can be no doubt that Section 6A of the Act has no application if there is no seizure of essential commodity. The power of the first respondent is only to order confiscation of the Essential Commodity under Section 6A(1) of the Act, if there is any seizure of WPC 8971/2009 : 7 : the Essential Commodity in pursuance to an order made under Section 3 of the Act. In view of the above reasons, there can be no doubt that Ext.P3 order is not legal, proper and correct. 6. Now the question to be considered is as to whether this writ petition is maintainable, in view of the statutory provision for appeal under Section 6C of the Act. 7. It is clear from Section 6C of the Act that any person aggrieved by an order of confiscation under Section 6A of the Act has the power to file appeal. Therefore, it is clear that appeal under Section 6C is provided only against the order of confiscation. In this case, there is no order of confiscation under Section 6A of the Act and in the said circumstances, the question of resorting to Section 6C of WPC 8971/2009 : 8 : the Act does not arise at all. This would mean that there is no alternative remedy by way of appeal when there is no order of confiscation under Section 6A of the Act. Therefore, this writ petition is perfectly maintainable. In the result, this writ petition stands allowed and Ext.P3 order stands quashed. I make it clear that this judgment will not stand in the way of the first respondent in proceeding against the petitioner in accordance with other provisions of the Act. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/7.1..2017_