Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12339 of 2012 ====================================================== Arbind Kumar Choudhary S/o Late Satish Chand Choudhary the Manager of M/s. Uday Prakash, Ashok Kumar, R/o Muhalla- Maksuspur, P.S.- Kasim Bazar, District- Munger Versus .... .... Petitioner 1. The State of Bihar 2. The District Magistrate/Collector, Munger 3. The Sub Divisional Officer, Sadar, Munger 4. The In Charge Block Supply Officer, Bariyarpur-cum-Circle Officer Bariyarpur, Munger .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Ms. Sushmita Mishra with Mr.Surya Narayan Sah, Advocates For the Respondent/s : Mr. Anil Kumar Verma, AC to AAG 13 with Mr.Pankaj Kumar Verma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 4 21-08-2013 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order dated 2.6.2012 passed by the District Magistrate, Munger in Confiscation Case No. 1 of 2012-13 by which 3860 liters of Kerosene Oil which was seized from the premises of M/s. Uday Prakash Ashok Kumar has been ordered to be distributed among the PDS dealers and the amount to be deposited in Nazarat and for further consequential reliefs. Two submissions have been made by learned counsel
Facts
for the petitioner, first that the confiscation proceeding itself is on Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 2 the basis of an illegal seizure made by an officer who is not authorized to make any such seizure under the Kerosene (Restriction On Use And Fixation Of Ceiling Price) Order, 1993 and thus the confiscation proceedings are vitiated. The further submission of learned counsel for the petitioner is that the licensee, namely, Om Prakash Choudhary, the sole proprietor of the firm has not been made party to the confiscation proceedings. So far as the first submission is concerned, learned counsel for the petitioner does not press it in view of the statement made in the counter affidavit that the officer who had made such seizure was duly authorized by the State Government under the provisions of the Essential Commodities Act read with 1993 Order. So far as the submission of learned counsel for the petitioner that the licensee who is the proprietor of the firm has not been made party is concerned, the stand taken by the respondents is that the licensee, the proprietor of the firm, had executed power of attorney in favour of the petitioner and thus the petitioner is running the said firm and for the said reason the confiscation proceedings have been initiated against the petitioner. Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 3 In my view, the confiscation case may proceed against the petitioner but so long as the firm continues to be a proprietorship firm and the licence is also in the name of the proprietor Om Prakash Choudhary, the proceedings cannot be continued without making the said licensee proprietor as a party to the proceedings. However, the same cannot be a ground for quashing of the confiscation proceedings themselves and it is for the respondents to take appropriate steps in the matter. Another submission made by learned counsel for the petitioner is that the seized Kerosene Oil was directed by the impugned order dated 2.6.2012 to be distributed among the dealers of the area and the amount to be deposited in the treasury, the payment of which would be subject to the decision of the
Legal Reasoning
Division Bench of this Court in the case of Mahabir Prasad Bajaj vs. State of Bihar and others : AIR 1999 Patna 110, in paragraphs 7 to 9 of which it has been held as follows : “7. From the aforesaid provisions it is clear that the Collector while passing an order for confiscation may also pass order for disposal of such essential commodity which, according to him, is subject to speedy and natural decay or is required to be done in the interest of general public and for maintaining proper supply and distribution of such commodity. 8. Thus the underlying intention of the Legislature in enacting these provisions, it appears, is that the Collector can pass order for sale of the seized goods only after passing of the order of confiscation and that too if in his opinion those seized articles are perishable in nature. For example, if some iron materials like component parts and accessories of automobiles etc. are confiscated which are not subject to speedy and natural decay, the Collector may not direct for sale of those articles even after passing of the order of confiscation. If ultimately the order passed by him under section 6-A confiscating the articles is set aside or annulled by the Appellate Authority, the same can be returned to its owner or the person from whom those were seized. On the contrary, if some perishable essential commodities like cattle fodder or pulses etc. are confiscated, the Collector may direct for sale of those commodities in the manner prescribed in the section and preserve the Government Treasury. Sub-section (5) of Section 6-A of the Bihar Act provides that where no order of confiscation is ultimately passed by the Collector, or where in an appeal against his order under sub-section (1) of section 6-C, the Appellate Authority requires the sale proceeds of those essential articles to be returned after deduction of all expenses of sale or the auction, the same shall be paid to the owner thereof or the the sale proceeds in Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 6 person from whom it was seized. Similarly, where in the criminal case instituted for contravention of the order in respect of which order of confiscation has been made, the concerned person is acquitted, there also the sale proceeds shall be paid to the owner or the person from whom it was seized. 9. Therefore, on reading the entire provisions of section 6-A of the Act, in my view, only reasonable conclusion which can be arrived at is that where after order of confiscation the essential commodities are sold, the amount for which those articles were sold is to be paid back after deduction of the expenses as indicated in the section. This section does not contemplate of giving interest on such amount.” Learned counsel for the State, on the other hand, submits that the petitioner has not suffered on any count by distribution of the Kerosene to the other dealers since the price thereof has been directed to be deposited in the treasury as Kerosene is a controlled commodity; therefore no loss has been incurred by the petitioner on such sale and in case the confiscation case is decided in favour of the petitioner the amount would be received by the petitioner. Hence no illegality was committed by the Collector in directing the distribution of the Kerosene among the other dealers and the retention of the price of the same in the treasury. In my view, the provision of Section 6A of the Act while providing for sale of commodity which is seized if the essential commodity is subject to speedy and natural decay, is Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 7 primarily for the benefit of the dealer or the person from whom such article was seized as otherwise he would receive such commodity in worthless condition by the time the confiscation proceedings or the criminal case is decided, if in his favour. However, there may be instances where such sale may not be for the benefit of the dealer which was the situation in the aforesaid case of M/s. Sharda Khandsari Udyog where the claim of the petitioner of that case was that the commodity in question was not an essential commodity or controlled commodity. In view of the different situation in the present case it was normally to be expected that before ordering any sale the Collector should have given an opportunity of hearing to the dealer or the person from whom such articles have been seized before passing an order of sale of the commodity in question. Even in the present matter it is evident that the Kerosene is not a commodity which is subject to speedy and natural decay and nothing is stated in the impugned order as to any expediency in the public interest to pass such an order. The order of the Collector thus appears to be contrary to the proposition of law laid down in M/s. Sharda Khandsari Udyog case (supra). However, considering the fact that the actual distribution of the Kerosene among the other dealers and the deposit of the price of Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 8 the Kerosene in the treasury does not cause any actual injustice to the petitioner, no further orders are being passed in this case. The writ application is, accordingly, disposed of in terms of the aforesaid observations. (Ramesh Kumar Datta, J) spal/-
Arguments
confiscation case. It is contended by learned counsel that no such order of sale could have been passed as neither the seized article in question, namely, Kerosene Oil, is subject to speedy and natural decay nor it is expedient in the public interest that it should have been directed to be sold. In support of the said proposition learned counsel relies upon a decision of a learned Single Judge of this Court in the case of M/s. Sharda Khandsari Udyog vs. The State of Bihar : 1988 PLJR 1133, in paragraphs 14 & 15 of which it has been held as follows : Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 4 “14. In the present case, however no order is proposed to be passed for the aforesaid purposes. It has been pointed out to me on behalf of the petitioner that there has been a complete failure of justice in as much as the learned Collector in this case had ordered for the auction sale of the seized goods on the same day on which has started the confiscation proceeding. This he was doing without affording an opportunity to the petitioner to show cause why the auction sale should not be held. It has been submitted that this definitely against the principles of natural justice and the failure to observe these principles amounted to abuse of the powers given under law and has resulted in failure of justice to the petitioner. I feel inclined to agree with this submission made on behalf of the petitioner. in this case for which 15. It may be stated here that forty bags of sugar were seized the confiscation proceeding was started and the same cannot be said to be the such perishable articles for which the learned Collector was compelled to pass the order of auction sale on the same day on which he issued the show cause notice to the petitioner. Under Section 6A(2) of the Act, it is only when the Collector is of the opinion that the seized essential commodity is subject to speedy and natural decay or that it is otherwise expedient in the public interest so to do he may order the same to be sold at the controlled price, if any, fixed under any law for the time in force. In the present case it appears that the learned Collector was in great hurry. Without trying to comply with the mandatory provisions of Section 6A(2) and 6A(3) of the Act and without informing the petitioner from whose possession the articles were seized he has proceeded to order for their auction sale on the same day. This does not appear to be in terms of the spirit of law and is definitely against the principles of natural justice. The articles were not such that a delay of few days could have mattered. Thereafter, obviously the impugned order so far as it relates to the auction sale of the seized articles should not have been passed by the learned Collector and is liable to be quashed. It may be pointed out here that the quashing of this order for the auction sale of the seized articles will not come within the mischief of section Patna High Court CWJC No.12339 of 2012 (4) dt.21-08-2013 5 6A(6) and 6(E) of the Act.” Learned counsel further relies upon a decision of a