JUDGMENT
C.K. Thakker, J.
1. Admitted, Mr. M. A. Bukhari, learned A.G.P. appears and waives service of notice of admission on behalf of the respondents. In the facts and circumstances of the case, the matter is taken up for final hearing today.
2. This appeal is filed against an order of summary dismissal of S.C.A. No. 4409 of 1996 passed by learned single Judge on July 3, 1996. The said order reads thus :
Heard learned counsel for the petitioner. The authorities having found that explanation is partly acceptable, has reduced the penalty in part. In view of this, no interference is called for.
3. The case of the appellant was that he was having Producers Licence as well as Wholesalers Licence issued under the provisions of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 (hereinafter referred to as ‘the Order’ for short) issued under the provisions of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’ for short). On June 27, 1994, the District Supply Officer inspected the business premises of the appellant and certain irregularities were found. A show cause notice under Section 6B of the Act was issued and the stock of rayado and rayado oil was seized. A written reply was submitted by the appellant. The Collector was not satisfied about the explanation put forward by the appellant and he ordered confiscation of the entire goods worth Rs. 67,668.50.
4. Being aggrieved by the order passed by the first authority, the appellant preferred an appeal before the State Government. The appellate authority was satisfied that the appeal filed by the appellant was required to be partly allowed. Accordingly, it partly allowed the appeal and modified the order passed by the Collector and instead of 100% confiscation, 50% of the goods were ordered to be confiscated.
5. Being aggrieved by the said order, the appellant approached this Court by filing the above petition. The petition was summarily dismissed. In LPA, notice was issued on August 13, 1996. Today we have heard the parties.
6. Ms. Shah, learned advocate for the appellant, contended that looking to the allegations as well as the finding recorded by the Collector as also by the State Government, it cannot be said that there was anything on the part of the appellant from which it could be said that he was indulging in hoarding and/or black-marketing activities. There is neither allegation nor finding that in past, the appellant had indulged in similar activities. In fact, the grievance of the appellant is that though sufficient explanation was put forward before the authorities, it was not considered in its proper perspective and the order was passed. She, therefore, submitted that the order is required to be quashed and set aside in its entirety.
7. Mr. Bukhari, learned A.G.P., raised a preliminary objection that the petition was filed by the petitioner under Article 227 of the Constitution. The learned single Judge has passed order in exercise of supervisory jurisdiction under Article 227 of the Constitution and hence LPA would not lie.
8. On merits, he submitted that the authorities, considering the facts and circumstances in the light of explanation put forward by the appellant, have passed the orders and the learned single Judge did not think it proper to exercise discretion in favour of the appellant. There is no error of law apparent on the face of the record which can be corrected by the appellate Court.
9. So far as the maintainability of the petition is concerned, it is clear that the petition was filed under Articles 226 as well as 227 of the Constitution with prayer to issue “writ of certiorari or any other writ, order or direction”. As held by the Supreme Court in Umaji Keshao v. Radhikabai AIR 1986 SC 1272, if a petition is filed by the petitioner under Articles 226 and 227 of the Constitution, a party cannot be deprived the right I of appeal if otherwise intra-Court appeal is available to him. A Full Bench of this Court in Dilavarsinh Khodubha v. State of Gujarat (1995) 1 GLH 110 : AIR 1995 Guj 54 held that whenever a writ is sought, such a relief can be granted only under Article 226 of the Constitution as Article 227 does not contemplate issuance of any writ by a High Court. In view of this fact, in our opinion, the preliminary contention raised by Mr. Bukhari has no substance and cannot be upheld. The LPA is clearly maintainable.
10. So tar as merits are concerned, prima facie, the learned counsel for the appellant is right that no finding regarding black-marketing or hoarding has been recorded nor such allegation was made. As observed by a learned single Judge in Govind Karsan & Co. v. State (1983) 24 (1) GLR 145, if there is no intention of black-marketing or hoarding on the part of the person committing breach of the provisions of the Order, the Court may exercise discretion by reducing the penalty.
11. In the facts and circumstances of the case, therefore, in our opinion, ends of justice would be met if instead of 50% confiscation ordered by the State Government, 25% of the goods are ordered to be confiscated.
12. The appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.