Sudevan V. v. District Collector Palakkad & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.2839 OF 2018(D)** ## **PETITIONER:** **SUDEVAN V. AGED 64 YEARS S/O.VELLAPPAN, MANAGING PARTNER, NANDHINI TRADERS,RICE MERCHANT, VALIYANGADI, PALAKKAD,RESIDING AT: NANDHINI HOUSE, VRINDAVAN STREET,OPP.TO BALAJI HOSPITAL, PALAKKAD - 1.** **BY ADVS.** **SRI.SAJAN VARGHEESE K. SRI.ABE RAJAN SRI.LIJU. M.P** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR PALAKKAD-678001. 2 THE DISTRICT SUPPLY OFFICER PALAKKAD - 678001.** **3 THE TALUK SUPPLY OFFICER PALAKKAD - 678001** ## **SMT.RASHMI.K.M,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.2839 OF 2018(D) 2 **CR** ## **J U D G M E N T** The question emerges for consideration in this writ petition is, whether the District Collector is vested with powers under section 6A of the Essential Commodities Act, 1955 to impose fine without confiscation of essential commodity ? Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner is a rice merchant in Palakkad. An inspection was conducted by the 3[rd] respondent i.e., the Taluk Supply Officer in the shop of the petitioner on 26.8.2014 and shortage was found as per the statement maintained by the petitioner. On account of that, Ext.P1 notice was issued, which was replied by the petitioner as per Ext.P2. According to the petitioner, it was specifically stated in the reply that, by an accidental slip one bill was omitted to be incorporated in the account and the same had been included in the succeeding bill. However, invoking power under sections 6A and 6B of Essential WP(C).No.2839 OF 2018(D) 3 Commodities Act, 1955, an amount of Rs.3,21,300/- was imposed as fine against the petitioner, evident from Ext.P3. It is the case of the petitioner that, there is no power vested with the District Collector for imposition of fine without any confiscation. Anyhow, petitioner has preferred Appeal 142/2015 before the District Court, Palakkad, as per section 6C of the Act, 1955, but the same was rejected as per Ext.P5 holding that, since there was no confiscation under section 6A of Act, 1955, the appeal is not maintainable under section 6C of the Act, 1955. These are the basic background facts projected by the petitioner. It is also pointed out, a learned single Judge had occasion to consider the very same issue as per Ext.P5 judgment in **Kuttikrishan Pillai v. District Collector** [2017(1)KLT 941] and has held that, if there is no confiscation, the appeal is not maintainable as per section 6C of Act 1955 and since there is no alternative remedy, the writ petition is maintainable under law. 3. A detailed counter affidavit is filed by the 2[nd] respondent justifying the stand adopted in Ext.P3 order imposing the fine. WP(C).No.2839 OF 2018(D) 4 4. I have heard learned counsel for petitioner, Sri.Sajan Varghese, learned Government Pleader, Smt.Reshmi.K.M., and perused the pleadings and documents on record. 5. The subject issue revolves around section 6A which read thus: [(1)] Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of - (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity: Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the WP(C).No.2839 OF 2018(D) 5 seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section: Provided further that in the 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 at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.] (2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may (i) Order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or (ii) Where no such price is fixed, the same to be sold by public auction: Provided that in case of food grains, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such food grains to the public." Sub-section (3) of the section provides: WP(C).No.2839 OF 2018(D) 6 "3 Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall (a) Where no order of confiscation is ultimately passed by the Collector, (b) Where an order passed on appeal under subsection (I) of S.6C so requires, or (c) Where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized. ## 6. This is the scheme under Act, 1955 for seizure and confiscation of the essential commodity and other articles. On a reading of the second proviso thereunder, what I could gather is that, if ultimately confiscation is made, on being satisfied of the contravention, then the owner of the confiscated article shall be given an option to pay in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried out by such animal, vehicle, vessel or other conveyance. Therefore, the power conferred on the District Collector is very restricted, and fine can only be imposed in lieu of the confiscation of the articles. In this context, it is WP(C).No.2839 OF 2018(D) 7 relevant to note, section 6B dealing with issue of show cause notice before confiscation of foodgrains etc. Sub- section(1) thereunder stipulates that no order confiscating any essential commodity, package, covering, receptacle or other conveyance shall be made under section 6A unless the owner of such essential commodity, package, covering, receptacle, animal, vehicle or other conveyance or person from whom it is seized (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance;(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. 7. Therefore, on a conjoint reading of Sections 6A & 6B of Act, 1955, it is clear that, there is no power vested with the District Collector to impose fine without confiscation of the articles as is required under the law. Now, on a reading of Ext.P3, it is categoric and clear that, in the case on hand, there was no seizure and confiscation of essential commodity or other articles at WP(C).No.2839 OF 2018(D) 8 all and instead, the District Collector has imposed a fine of Rs.3,21,300/-, which according to me, is an illegal order. In that view of the matter, District Judge was correct in dismissing the appeal preferred by the petitioner under section 6C holding that, without confiscation, there can be no appeal under section 6C of Act, 1955, because it is clearly stipulated under section 6C that, any person aggrieved by an order of confiscation under section 6C alone may prefer an appeal to any judicial authority appointed by the State Government concerned. 8. Therefore, it is quite explicit that, the basic requirement of entertaining the appeal under section 6C is the order of confiscation. Since there is no order of confiscation, there was no power vested with the District Judge to entertain the appeal preferred by the petitioner. Therefore, the only alternative available to the petitioner was to file writ petition invoking the writ jurisdiction under Article 226 of the Constitution of India. This was exactly the law laid down by the learned Single Judge in Ext.P5 judgment and I am in respectful agreement with the said judgment. It was also found thereunder that, in the absence of any WP(C).No.2839 OF 2018(D) 9 confiscation, the fine imposed by the District Collector cannot be sustained under law. 9. Taking into account the aforesaid legal and factual circumstances, I am of the considered opinion that, Ext.P3 order passed by the District Collector suffers from the vice of arbitrariness and illegality liable to be interfered with by this court under Article 226 of the Constitution of India. Accordingly , I quash Ext.P3 order passed by the District Collector, Palakkad dated 13.7.2015, but, making it clear that, the respondents are at liberty to take appropriate action against the petitioner in accordance with the provisions of the Act, 1955. I am also informed by learned Government Pleader that, prosecution is pending against the petitioner under section 12 of Act, 1955. Therefore, the writ petition is allowed, however, quashment of Ext.P3 would not stand in the way of the Judicial Authority proceeding with the prosecution against the petitioner in accordance with law. ## **Sd/-** ## **SHAJI P.CHALY** Smv ## **JUDGE** 9.8.2019 WP(C).No.2839 OF 2018(D) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE NOTICE DATED 17.01.2015 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXHIBIT-P2: TRUE COPY OF THE REPLY DATED 25.05.2015 SUBMITTED BY THE PETITIONER. EXHIBIT-P3: TRUE COPY OF THE ORDER DATED 13.07.2015 PASSED BY THE FIRST RESPONDENT. EXHIBIT-P4: TRUE COPY OF THE JUDGMENT DATED 28.11.2017 PASSED IN CMA NO.142/2015 ON THE FILE OF HONOURABLE DISTRICT COURT, PALAKKAD. EXHIBIT-P5: TRUE COPY OF THE JUDGMENT RENDERED IN KUTTIKRISHNAN PILLAI V.DISTRICT COLLECTOR [2017(1) KLT 941]. EXHIBIT-P6: TRUE COPY OF THE COMMUNICATION DATED 03.04.2017 ISSUED FROM THE DIRECTORATE OF CIVIL SUPPLIES.**