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SCA/9032/2010 16/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9032 of 2010
=========================================================
AMRUTLAL
MULJIBHAI THAKKAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ABHAYKUMAR P SHAH for
Petitioner(s) : 1,MR BHASKAR R DAVE for Petitioner(s) : 1,
Ms.
Jirga Jhaveri, AGP for Respondent(s) : 1,
None for Respondent(s)
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 09/08/2010
ORAL
ORDER
Heard
learned Advocate Mr. Abhaykumar P. Shah with learned Advocate Mr.
Bhaskar R. Dave for petitioner and Ms. Jirga Jhaveri, learned AGP
for respondent State Authority.
Brief
facts of present petition are as under:
Petitioner
was holding retail sales license of kerosene bearing NO. 178/82 and
it was renewed till year 2006. Inspection team had inquired and the
Supply Inspector had found following so called irregularities:
(i) Sign
Board has not been maintained.
(ii) Bill
book is not having printed bill number.
(iii) In
the office copy of bill book, signatures of consumers are not being
obtained for having received the stock.
(iv) It
has been found at the time of inspection that 55 liter kerosene has
been misappropriated by not supplying to card holders and without
making entry in the ration card of consumer.
(v) At
the time of checking, it was found exceeding stock of 95 liters
kerosene than the allotted stock and the bills of this exceeding
stock were also prepared.
(vi) At
the time of checking, it was found that petitioner has shown in
card register that card holder is availing services of gas and then
also, stock of 180 liters kerosene was distributed to these persons
and prepared bills on those names which is against the Rules of
Gujarat Essential Articles (Licensing, Control and Stock
Declaration) Order, 1981.
(vii) Though
petitioner had obtained the amount of deposit back after depositing
retail license, however, got restored license of kerosene again
contrary to instructions of the Government which act is found tobe
absolutely contrary to law.
On
the basis of aforesaid allegations, notice dated 21.10.2009 was
served to petitioner to show cause why license should not be
cancelled/suspended and why amount of deposit towards license should
not be forfeited fully or partially which was replied by petitioner
on 30.11.2009 by filing statement of defence in writing wherein it
was submitted by petitioner that sign board has been maintained by
him. In respect to bill book, it was submitted that bill books have
been printed in bulk and after completion thereof, new bill book
will be printed. It was also submitted by petitioner that now
practice has been started to obtain signatures of consumers on the
office copy of bill. It was also submitted that because of rush of
consumers, through mistake, entry of the quantity supplied might not
have been made in the card. It was submitted that henceforth, such
mistake will not be committed and because of such mistake, at the
time of inspection, quantity of 55 liters of kerosene is found not
entered in ration card. It was further submitted that through
mistake, consumers appear to have been supplied quantity second
time. No quantity has been misappropriated. Quantity as per bill has
been distributed to respective card holders. It was also submitted
by petitioner that gas holders have not been distributed any
kerosene but in view of wrong stamp made though not holding gas,
card holders demanded kerosene and, therefore, after making bills
and making entry in the card, quantity has been supplied. No
quantity has been misappropriated. Further, it was also submitted
that in view of the earthquake in the year 2001, his shop and house
at his native place Varahi had fallen down and there was much damage
and because of that reason, he was required to go to his native
place frequently and therefore, defect was remaining in the
distribution system of Government and, therefore, kerosene license
was deposited by him and he had been in his native place Varahi for
getting repaired the house and after completing all work, again had
made demand for continuing license and when the license was
deposited,at that time, it was having renewal upto 31.12.2006 and
because of that reason, his license was again restored and towards
that renewal, license fee of Rs.200.00 and deposit amount of
Rs.2500.00 and Rs.150.00 for duplicate and Rs.1600.00 were paid
towards fine and thereafter, license was renewed again by Mamlatdar
Deesa.
After
considering submissions of petitioner as aforesaid as well as report
of inspection team, the District Supply Officer was of view that the
clarifications made by petitioner are not appearing to be
satisfactory and acceptable. District Supply Officer held that by
committing serious irregularities in the supply of essential
commodity like kerosene, petitioner has committed an illegality of
disturbing public distribution system and after cancellation of
license in the year 2002 after it was deposited, permission for
kerosene license granted by Mamlatdar, Deesa in the year 2005 also
being unauthorized, as Mamlatdar, Deesa has no power to renew such
license. District Supply Officer has ordered to recover the amount
of price of Rs.6600.00 difference of 330 liters quantity of
kerosene found to have been misappropriated at the time of
inspection and also cancelled retail license of kerosene bearing No.
178/82 by order dated 31.12.2009. Against that order, appeal was
preferred by petitioner before District Collector Banaskantha at
Palanpur where again written explanation was submitted on 24.2.2010
by petitioner and thereafter, District Collector has also considered
appeal memo and relevant original record and then, considering
irregularities and defects found on the basis of report submitted by
Supply Inspector Team and explanation which has been tendered by
petitioner which is not found to be satisfactory because in
explanation almost all the allegations made against petitioner are
indirectly admitted by petitioner and no genuine reasons or bona
fide has been shown by petitioner before appellate authority.
District Collector held that if such type of activity is continued,
then, purpose of public distribution system cannot be maintained and
petitioner has, by misappropriating essential commodity available to
card holders, deprived card holders from the essential commodities
available under public distribution system. It was also held by
appellate authority that the appellant has, after depositing his
retail kerosene license and getting refund of the amount of deposit,
again got started kerosene license contrary to instructions of the
Government. Such an act of petitioner is contrary to law and,
therefore, based upon such conclusions, dismissed appeal of
petitioner and confirmed order of District Supply Officer, Palanpur
at Banaskantha dated 31.12.2009 by order dated 10.3.2010.
Thereafter, revision was preferred by petitioner and he was
personally heard by revisional authority on 22nd April,
2010 in revision application No. 26 of 2010. Same explanation was
given by petitioner before revisional authority and considering his
same explanation, revisional authority has come to the conclusion
that because of earthquake in the year 2001 in Gujarat, petitioner
had deposited retail license of kerosene and thereafter got started
license contrary to policy of the Government. Revisional authority
also came to the conclusion that the petitioner has not been able to
give any satisfactory explanation or any evidence in his favour in
respect of irregularities found at the time of inspection and if
such activity of petitioner is continued, then, Public Distribution
System of PDS Kerosene cannot be maintained. Revisional authority
also came to conclusion that petitioner has deprived card holders
from quantity of kerosene in public distribution by committing
irregularities and, therefore, there is no any reason to interfere
with order of District Collector, Banaskantha dated 10.3.2010 and,
therefore, revisional authority rejected revision application no. 26
of 2010 and confirmed order of Collector Banaskantha dated 10.3.2010
by order dated 25.5.2010. Therefore, petitioner has filed this
petition before this Court.
Learned
Advocate Mr. Shah and Dave for petitioner has submitted that all the
three authorities have committed gross error in not considering
reply submitted by petitioner and also not properly appreciating
explanation given by petitioner. According to them, proper
explanation was given by petitioner in respect of irregularities
which have been alleged against petitioner and, therefore, orders
passed by all three authorities are required to be set aside by
allowing this petition.
As
against that, learned AGP Ms. Jirga Jhaveri appearing for respondent
State Authority has submitted that this being serious irregularities
which has disturbed entire arrangement made for PDS Kerosene Public
Distribution, it amounts to loss caused to card holders and Public
Distribution System and card holders have remained without
Government quota of kerosene. She submitted that if such activities
are permitted to continue, then, it amounts to giving encouragement
to such illegal activities carried out by petitioner and, therefore,
in such circumstances, serious view has been rightly taken by all
three authorities and there are concurrent findings of fact based on
record and no sufficient or cogent evidence has been produced on
record by petitioner in support of his explanation and, therefore,
according to her submission, three authorities have rightly examined
the matter and not committed any error which would require
interference of this court.
I
have considered submissions made by both learned advocates. I have
also perused orders passed by three subordinate authorities.
Considering irregularities committed by petitioner as per report
submitted by Supply Inspector Team and reasoning given by District
Supply Officer, Collector and revisional authority, according to my
opinion, indirectly, whatever allegations made against the
petitioner have been admitted by him because in explanation, report
submitted by Supply Inspector has not been disputed by petitioner.
According to my opinion,considering explanation given by petitioner,
all three authorities have rightly held that petitioner has not
given any satisfactory explanation in respect to allegations made
against him, therefore, this being finding of fact decided by each
authority which cannot be considered to be baseless or perverse
finding, it would not require interference of this court in exercise
of powers under Article 226/227 of the Constitution of India.
This
Court in case of Jaipalsinh Pratapsinh Solanki versus State of
Gujarat and others, reported in 2008 (2) GLH (UJ) observed as under
in para 4 and 5:
4. It appears that on
30.6.1994 and also on 1/2.7.1994, there was a surprise checking of
the fair price shop of the present petitioner and the Checking Squad
had found number of irregularities, i.e. about 21 irregularities.
The petitioner was asked to tender his explanation and to appear
for hearing on 16.8.1994. The written explanation given by the
present petitioner to the District Supply Officer is also on record
vide Annexure-‘D’. On careful reading of the reply, it is clear
that the same is substantively vague and unconvincing. Initially,
the District Civil Supply Officer had suspended the license of the
present petitioner for 90 days and after hearing the present
petitioner, his license was cancelled and deposit of Rs.750/- was
ordered to be confiscated. The Collector, thereafter, held that the
findings of the District Civil Supply Officer are absolutely legal
and irregularities noticed are serious in nature and the Collector
ultimately held that the petitioner has disposed of the stock of
kerosene in large scale without issuing bills to the consumers-
card holders. The account of stock received and sold to the
consumers was also not found to be maintained properly. On
careful reading of the order passed by the State Government as
Revisional Authority, it is clear that the findings arrived at by
the Deputy Secretary of the Department of Food and Civil Supply are
absolutely logical and legal. There are three findings of
different authorities. Merely because the petitioner was holding the
license since 12 to 13 years by itself would not pose him to be
innocent and honest trader/ fair price shop license holder. For
example, at one place, the petitioner has accepted that against
the receipt of 7000 Ltrs. of kerosene, he has shown sale of 7200
Ltrs. of Kerosene and this, according to the petitioner, was
nothing but slip of pen. This layman excuse normally should not be
accepted by any authority so far as the public distribution system
is concerned. In the same way, at one place, he has shown 200 Ltrs.
of kerosene more than the actual, meaning thereby, the dealing of
the present petitioner was not found to be transparent. Mistakes
were not bonafide and, therefore, the authorities have reached to
the findings.
5. The law, at present,
is settled that party who feels that he has not been given an
opportunity of being heard, can be heard at any stage. The
petitioner could have convinced this Court from the strength of
papers, including the written explanation given by him, that
non-supply of papers has resulted into serious prejudice and
injustice to him.
9.
In case of Gujarat Ship Breakers’ Association v. State of Gujarat
reported in 2007(3) GLR page 2150, this Court observed as under in
para 15:
15. I
am at a loss to understand that why in case like present, the State
Government has not taken resort to Section 3 read with Section 7 of
the Essential Commodities Act. Once the Collector or the appellate
authority holds that particular person being a dealer had committed
breach of the Control Orders, then, such person is liable to be
prosecuted under Section 7 of the Essential Commodities Act. For the
benefit of the State, I will refer to Section 3 of the Essential
Commodities Act,1955 which provides that if the Central Government
is of opinion that it is necessary or expedient so to do for
maintaining or increasing supplies of any essential commodity or for
securing their equitable distribution and availability at fair
prices, or for securing any essential commodity for the defence of
India or the efficient conduct of military operations, it may, by
order, provide for regulating or prohibiting the production, supply
and distribution thereof and trade and commerce therein. Section 4
of the Essential Commodities Act provides that an order made under
section 3 may confer powers and impose duties upon the Central
Government or the State Government or officers and authorities of
the
Central Government or the State Government, and may contain
directions to any State Government or to officers and authorities
thereof as to the exercise of any such powers or the discharge of
any such duties. Section-7 of the Act provides that if any person
contravenes any order made under Section 3, he shall be punishable
and would be liable to be sentenced to different periods if he
commits offenses under particular provisions of Section 3. In the
present case, the moment Collector held that the petitioners have
committed breach of 1981 Control Order, then, at least, the
authorities should have opened their eyes and could take appropriate
steps for prosecution of the office bearers of the petitioner
Association. The State Government, it appears, is afraid of big
fishes, its net cannot catch those who are beyond the size of their
net. I will simply put a question to myself, [not to find an
answer] that in case of an ordinary person who had been dealing in
essential commodities without license, would the State Government
leave him after the confiscation of the goods. If the State
Government wants to act honest and show to the public that it does
not care for faces or is not afraid of big guns, then, it has to
act in accordance with law and take appropriate action against all
who commit wrong punishable under the law.
10. In
case of Shambhu Dayal Agarwala versus State of West Bengal and
another, (1990) 3 Supreme Court Cases 549, apex court observed in
para 4 and 7:
4. In order to
appreciate the rival view points, we may at the outset examine the
scheme of the Act. The Act, as the long title reveals was enacted to
provide, in the interest of the general public, for the control of
production, supply and distribution of, and trade and commerce in
certain commodities. It extends to the whole of India. The
dictionary of the Act is contained in Section 2. Section 2(i-a)
defines Code to mean the Code of Criminal Procedure, 1973.
Section 2(f) says that words and expressions used but not defined in
the Act and the defined in the Code shall have the meanings assigned
to them in the Code. Section 3 empowers the Central Government to
provide for regulating or prohibiting the production, supply and
distribution of essential commodity and trade and commerce therein
if the same is considered necessary or expedient inter alia for
maintaining or increasing supplies of any essential commodity or for
securing their equitable distribution and availability at fair
prices. Sub section (2) of section 3 outlines wheat an order made
under sub section (1) thereof may provide. Besides regulating by
licenses, permits or the storage, transport, distribution, disposal,
acquisition, use, consumption, etc., thereof, the order may, inter
alia, provide for controlling the prices at which the essential
commodity may be bought or sold and may also require any person
holding in stock any essential commodity to sell the whole or a
specified part of the quantity held in stock or produced or received
by him or likely to be produced or received by him to the Central
Government or a State Government or to an officer or agent of such
government, etc. Sub section (3) of section 3 provides for
determination of the price to be paid to the person from whom the
essential commodity is so purchased. Section 6 lays down that an
order inconsistent therewith contained in any other enactment or
instrument. Then comes section 6-A which provides for the
confiscation of essential commodity. Sub-section (1) of this section
may be reproduced for ready reference;
‘6-A. Where any essential
commodity is seized in pursuance of an order made under section 3 in
relation thereto it shall be reported without any unreasonable delay
to the Collector of the district in which such essential commodity
is seized and the Collector may, if he thinks it expedient so to do,
inspect or caused to be inspected such essential commodity, whether
or not the prosecution is instituted for the contravention of such
order and the Collector, if satisfied that there has been a
contravention of the order, may order confiscation of –
(a) the essential
commodities 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;’
Sub section (2) of the
said section empowers the Collector to sell any essential commodity,
if the same is subject to speedy and natural decay or it is
otherwise expedient to do so in public interest at the controlled
price, if any, fixed therefor or by public auction if no such price
is fixed. If the Central or the State Government has fixed the
retail sale price of such commodity under the Act or under any other
law, the Collector is empowered to order its sale through fair price
shops at the price so fixed. Section 6B posits that no order of
confiscation of any essential commodity or conveyance, etc., shall
be made unless the owner or the person from whom it is seized has
been served with a notice informing him of the grounds on which it
is proposed to confiscate the same and he has been given reasonable
time to make a representation in writing against the grounds set out
in the notice and has been given a reasonable opportunity of being
heard. This section incorporates the principles of natural justice
to ensure that the owner or person from whom the essential commodity
is seized has the fullest opportunity to satisfy the Collector
against passing a confiscation order under section 6A. An appeal is
provided by section 6C against the order of confiscation passed
under section 6A. Section 6D clarifies that an award of confiscation
under the Act by the Collector shall not prevent the infliction of
any punishment to which the concerned person is liable under the
Act. We then come to section 6A which was inserted in the Act in
place of the existing provision by Act 42 of 1986 with effect from
September 9 1986. Since the incident in question relates to a date
subsequent to September 9, 1986, it is unnecessary to notice the
earlier provision. Section 6-E which confers exclusive jurisdiction
on the Collector and in the State Government concerned under Section
6-E to pass certain orders pending confiscation reads as under:
‘6-E. Whenever any
essential commodity is seized in pursuance of an order made under
Section 3 in relation thereto, or any package, covering, or
receptacle in which such essential commodity is found, or any
animal, vehicle, vessel or other conveyance used in carrying such
essential commodity is seized pending confiscation under section
6-A, the Collector, or as the case may be, the State Government
concerned under section 6-C shall have, and notwithstanding anything
to the contrary contained in any other law for the time being in
force, any court, tribunal or other authority shall not have
jurisdiction to make orders with regard to the possession, delivery,
disposal release or distribution of such essential commodity,
package covering receptacle, animal, vehicle, vessel or other
conveyance.’
It is obvious on a plain
reading of this provision that the same was brought on the statute
book with a view to debarring the courts from making any order with
regard to the possession, delivery, disposal or distribution of any
essential commodity seized under an order made under section 3 of
the Act. Section 7 prescribes the penalties for the contravention of
any order made under section 3 and provides for the forfeiture of
the essential commodity to the Government and for the forfeiture of
any animal, vehicle or other conveyance used in carrying the said
essential commodity, if the court so orders. Section 10-A makes
every offence under the Act cognizable and non bailable,
notwithstanding anything contained in the Code. Section 11 provides
that no court shall take cognizance of any offence punishable under
the Act except on a report made by a public servant as defined by
section 21, IPC, or any person aggrieved or any recognized consumer
association. Section 12-A empowers the State Government to
constitute by notification as many special courts as may be
necessary and section 12-AA, which begins with non-obstante clause
notwithstanding anything contained in the code provides that all
offences under the Act shall be triable only by the special court
constituted for the area in which the offence was committed. Section
12-AC makes the provisions of the Code (including the provisions as
to bail and bonds) applicable to the proceedings before special
courts as if it is a Court of Sessions unless the Act provides
otherwise.
5.xxx
6.xxx
7. The Act was enacted to
safeguard public interest. It was thought necessary in the interest
of the general public to control the production supply and
distribution of, and trade and commerce in certain commodities
through legislation. With that in view, powers to control
production, supply, distribution, etc., came to be conferred on the
Central Government by Section 3 of the Act. As pointed out earlier,
in order to deter persons dealing in such essential commodities from
contravening any order made under section 3, the law envisages two
independent proceedings, namely (I) confiscation under section -6A
and (ii) prosecution leading to punishment provided by Section 7 of
the Act. In order to ensure that the steady supplies of essential
commodities to the members of the general public is not disrupted,
provision is made in sub section (2) of section 6-A that the
Collector may, if it is expedient and in public interest so to do,
sell the seized commodity at the controlled price or by public
auction if no such price is fixed or through the public distribution
system if the retail sale price is fixed for the said commodity.
Similar powers can be exercised if the commodity is subject to
speedy and natural decay. The obvious purpose of conferring this
power on the Collector without waiting for the completion of the
confiscation proceedings is to maintain the smooth supplies of
essential commodities to the consumer public, avoid artificial
shortages, maintain the price line and secure equitable distribution
thereof through fair price shops. If such a power was not conferred
and if the seized commodity could not be dealt with till the
completion of confiscation proceedings, it would defeat the very
object and purpose for which the Act was enacted. By the conferment
of this power, a duty is cast on the Collector to see that essential
commodities are not locked up in proceedings under the Act;
artificial scarcity is not created to hike up prices; a close watch
is kept on the supplies to the general public; when necessary in
public interest the stock of seized commodities is released to
combat short supply and in general to ensure the availability of
essential commodities at fair prices to the general public. To
ensure that this object of maintaining supplies and the legislature
has entrusted the task to the Collector in its entirety and has
ruled out interference by Courts, tribunals and other authorities by
placing an embargo on their jurisdiction in this behalf by section
6-E of the Act. While conferring wide powers as above on the
Collector, the legislature has also protected the dealers interest
by providing that in the event it is ultimately found that he was
not guilty of contravention on any order made under section 3, he
shall be paid the price realized with reasonable interest. But if
the prosecution ends in a conviction, section 7 (1)(b) enjoins that
the property in respect of which the order was contravened shall
be forfeited to the Government. The language of this clause is
clearly mandatory and leaves no option to the court but to order
forfeiture. This becomes clear if we read this clause in
juxtaposition with any packing, covering or receptacle in which the
essential commodity was found or any animal, vehicle, vessel or any
other conveyance which was used to carry to same If the property is
returned to the owner or the person from whom it was seized, in
exercise of power under section 6-E, it is difficult to understand
how the Court would implement the mandate of clause (b) of sub
section (1) of section 7 of the Act. But the learned counsel for the
appellant argued that even in cases where the Collector sells the
essential commodity under sub section (2) of section 6-A and retain
the price thereof, the essential commodities ceases to be available
for forfeiture under clause (b) of section 7(1) of the Act. He,
therefore, submitted that the Act itself contemplates situation
which renders clause (b) of section 7(1) otiose where the essential
commodity is disposed of by the Collector under sub sub section (2)
of section 6A of the Act. He, therefore, saw no harm in releasing
the commodity to the owner or the person from whose possession it
was seized on condition that such person deposits the market price
of the commodity on the date of seizure or gives a bank guarantee
for the said sum. In this connection a reference was also made to
the provision in sub section (5) of section 452 of the Code which
inter alia provides that the ‘property’ shall include, in the case
of property regarding which an offence appears to have been
committed, not only such property as has been originally in the
possession or under the control of any party but also any property
into or for which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange whether immediately
or otherwise’. This definition can be invoked in view of section
2(f) of the Act which is not inconsistent with any provision of the
Act. But this submission overlooks the fact that the power conferred
by sub section (2) of section 6-A 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. If the essential commodity is returned to the person from
whom it was seized or to the owner thereof, the very objective of
the Act would be defeated and the purpose of seizure would be
frustrated. The seizure has to be effected not for the sake of
earning revenue, i. e. the market price of the commodity at the date
of seizure, which may be ultimately forfeited, but to prevent
hoarding of essential commodities, avoid artificial shortages,
maintain a steady supply to the community and ensure equitable
distribution at fair and reasonable prices. If the seized commodity
is returned by merely securing its value, this objective of the Act
will be wholly defeated. That is why section 6-A does not empower
the Collector to give an option 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 along with the
essential commodity. Only a limited power of sale of the commodity
in the manner prescribed by sub section (2) of section 6-A is
granted. This shows that the legislature did not intend to confer a
power on the Collector to return the essential commodity to the
owner or the person from whose possession it was seized. That is for
the obvious reason that it would run counter to the very object and
purpose of the enactment.
11. In
view of aforesaid decisions referred to by this court where object
of Gujarat Essential Articles (Licensing, Control and Stock
Declaration) Order, 1981 as well as the Essential Commodities Act
Section 6A have been considered by apex court and also looking to
concurrent finding of fact, this court is also having considerable
opinion that no interference of this court is required in exercise
of powers under Article 226/227 of Constitution of India. Therefore,
contentions raised by learned Advocate Mr. Shah and Mr. Dave for
petitioner cannot be accepted. According to my opinion, no error is
committed by either of subordinate authority in passing such order
and, therefore, would not require interference of this court in
exercise of powers under Article 226/227 of Constitution of India.
Hence, there is no substance in this petition and same is,
therefore, dismissed with no order as to costs.
(H.K.
Rathod,J.)
Vyas
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