Misc. Case No. 07 of 2020 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.30945 of 2023 Nilu Agrawal @ Daya Ram Agrawal ....... Petitioner State of Odisha and others ....... Opp. Parties -Versus- For Petitioner : Mr. S.N. Mishra, Advocate For Opp. Parties : Mr. T.K. Pattanaik, Addl. Standing Counsel ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing & Judgment: 20.11.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner, who claims to be a Bhag Chasi, has preferred the Writ Petition challenging the order dated 20th May, 2023, passed by the Additional District & Sessions Judge, Nuapada in F.A.O. No.03/03 of 2021-2022 under Section 6-C of the Essential Commodities Act, 1955, vide which the said Appeal of the Petitioner was dismissed on the ground of approaching the wrong forum. However, liberty was granted to the Petitioner to prefer an Appeal before the Appellate Authority in terms of Order 18 of the Odisha Rice and Paddy Procurement and Custom Milling of Rice Order, 2016, shortly, hereinafter “the Order, 2016”. 2. The case of the Petitioner is that, one Rama Krushna Panda is the owner of Plot Nos.820, 829, 842, 843, 854 and 985 under Khata No.170 in Bartansil Mouza, PS: Boden, Dist: Nuapada. Due to his personal problem, he had given the cultivation right to the Petitioner as Bhag Chasi on 01.03.2020 for a period of one year. After cultivation of the said land, the Petitioner collected the paddy and stored in his house. While the paddy was loaded in the vehicle, the Opposite Party No.3, without any basis, raided and took the paddy to the godown of one M/s. R.K. Khemka Rice Mill, Tukla. The Opposite Party No.3, without any verification and enquiry, seized the paddy, which was cultivated by the Petitioner. During the relevant time, as the Petitioner was not present in his house, he could not submit any valid document towards such possession of the paddy. After the seizure of paddy, the Petitioner was issued with a Show Cause Notice dated 10th December, 2020 by the Collector & District Magistrate, Nuapada (Opposite Party No.2), wherein he was directed to file his reply by 18th December, 2020. Pursuant to W.P.(C) No.30945 of 2023 Page 2 of 11 the said notice, the Petitioner filed his reply stating therein about the points in his favour. A specific stand was taken in the said Reply that he has been authorized by the original land owner to cultivate his land and apportion the usufructs. The Petitioner also submitted the agreement made between him and the land owner to substantiate the said stand taken before the Opposite Party No.3. However, a case was initiated against the Petitioner under Section 6-A of the Essential Commodities Act, 1955, shortly, hereinafter, “the Act, 1955”, which was registered as Misc. Case No.07 of 2020. Pursuant to the same, notice was issued to the Petitioner on 26.11.2020 intimating him to appear before the Opposite Party No.2, the Collector & District Magistrate, Nuapada, on 04.12.2020 with supporting documents, if any. On the said date, the Petitioner appeared before the Opposite Party No.2 and produced the agreement entered into by him with the land owner. However, the Opposite Party No.2 erroneously came to a conclusion that the Petitioner is neither a farmer nor authorised to produce the paddy and the documents produced by the Petitioner is fabricated . While holding so, it was observed as follows: W.P.(C) No.30945 of 2023 Page 3 of 11 “(i) Q.299.44 of paddy found in his presence without valid documents. (ii) No document produced as required during the time of seizure. (iii) For contravention of Cl.5(1) of Food Policy for the year 2020-21 and Cl.3(2) of Odisha Rice and Paddy Procurement and Custom Milling of Rice Order, 2016, seized paddy liable to be confiscated.” (Emphasis supplied) 3. Pursuant to the same, the Opposite Party No.2, on the very same day, issued Show Cause Notice under Section 6-B of the Act, 1955 as to why the seized paddy shall not be confiscated to the State and the case registered against the petitioner was posted to 24.12.2020 for hearing. On the said
Facts
date both the parties were present along with their supporting documents. The Opposite Party No.2 passed an order on the very same day holding that the Petitioner is not the registered farmer and he has hoarded huge quantities of paddy by purchasing the same from the farmers in below Minimum Support Price (MSP) fixed by the Government. Accordingly, the seized paddy was confiscated in exercise of power conferred under Section-6-A of the Act, 1955. 4. Being aggrieved by the order dated 24.12.2020, the Petitioner preferred an Appeal under Section 6-C of the Act, W.P.(C) No.30945 of 2023 Page 4 of 11 1955 before the Court of the Additional District & Sessions Judge, Nuapada, which was registered as F.A.O. No.03/03 of 2021-2022. The Court below dismissed the said Appeal of the Petitioner on the ground that the Petitioner has approached the wrong forum. However, liberty was granted to the Petitioner (Appellant before the Court below) to file Appeal before the appropriate authority under Order-18 (wrongly mentioned as Section-18) of the Odisha Rice and Paddy Procurement and Custom Milling of Rice Order, 2016. 5. Being aggrieved by the order of confiscation dated 24.12.2020 passed under Section-6-A of the Act, 1955, the
Legal Reasoning
Petitioner approached this Court in W.P.(C) No.23379 of 2023. Since this Court was of the view that instead of confiscation order dated 24.12.2020 passed under Section 6-A proceeding, the Petitioner ought to have challenged the order passed in F.A.O. No.03/03 of 2021-2022, the Petitioner withdrew the said Writ Petition with liberty to file better application. Accordingly, the said Writ Petition was disposed of on 01.08.2023 giving liberty to the Petitioner, as prayed for. Thereafter, the present Writ Petition has been preferred against the order dated 20th May, 2023 passed in F.A.O. W.P.(C) No.30945 of 2023 Page 5 of 11 No.03/03 of 2021-2022 on the ground that though the Court below has authority to act as Appellate Authority under Section 6-C of the Act, 1955, but erroneously the impugned order was passed with an observation that the Petitioner approached the wrong forum and should have preferred an Appeal in terms of the provision prescribed under Order 18 of the Order, 2016. 6. The specific stand of the Petitioner before this Court is that, he is not a dealer or miller or custom miller. The said provision of the Order, 2016, as quoted in the impugned order by the Court below, permits the dealer or miller or custom miller to prefer an appeal. For ready reference, Order 18 of the Odisha Rice and Paddy Procurement and Custom Milling of Rice Order, 2016 is quoted below: “18. Appeal: Any dealer or Miller or Custom Miller aggrieved by the order passed by the Collector or his authorized officer or any Enforcement Officer authorized under this Order, may prefer appeal to the Secretary for redressal.” 7.
Decision
A further stand has also been taken in the Writ Petition that since the paddy has been confiscated by the Opposite Party No.2, the Petitioner has rightly approached under W.P.(C) No.30945 of 2023 Page 6 of 11 Section 6-C of the Act, 1955 the Court below. For ready reference, Section 6-C of the said Act is extracted below: “6-C. Appeal.―(1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may fit, confirming, modifying or annulling the order appealed against. concerned and think the (2) Where an order under section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to [return the essential commodity seized], [such persons shall, except as provided by sub- section (3) of section 6A, be paid] the price therefore [as if the essential commodity,] had been sold to the Government with reasonable interest calculated from the day of the seizure of [the essential commodity] 7[and such price shall be determined― (i) in the case of food grains, edible oilseeds or edible oils, in accordance with the provisions of sub- section (3-B) of section 3; (ii) in the case of sugar, in accordance with the provisions of subsection (3C) of section 3 ; and (iii) in the case of any other essential commodity, in accordance with the provisions of subsection (3) of section 3. ]” (Emphasis supplied) W.P.(C) No.30945 of 2023 Page 7 of 11 8. In view of such stand taken in the Writ Petition, this Court vide order dated 10.10.2023 directed the State Counsel to take instruction in the said regard. Paragraphs-3 to 6 of the said order dated 10.10.2023 are reproduced below: “3. Mr. Mishra, learned Counsel for the Petitioner submits, the Petitioner is a Bhag Chasi, who has entered into an agreement with the land lord as at Annexure-1. After cultivation, the Petitioner collected the paddy. When the paddy was loaded in the vehicle to be taken to the house of the Petitioner, the Opposite Party No.3, without any basis, raided the same and took the paddy to the godown of one M/s. R.K. Khemka Rice Mill. 4. He further submits, though his client rightly approached the Court below by preferring an Appeal under Section 6C of the Essential Commodities Act, 1955, the Court below, vide the impugned order dated 20.05.2023, disposed of the said Appeal with an observation that the said Appeal preferred by the Petitioner under Section 6C of the Essential Commodities Act, 1955 is not maintainable, giving liberty to the Petitioner to prefer an Appeal before the appropriate authority in terms of Order -18 (wrongly typed as Section-18 in the impugned order ) of the Odisha Rice and Paddy Procurement and Custom Milling of Rice Order, 2016. 5. Mr. Mishra further submits, the Petitioner being a Bhag Chasi does not come under the purview of the provision prescribed under Order 18 which W.P.(C) No.30945 of 2023 Page 8 of 11 permits any Dealer or Miller or Costumer to prefer an Appeal in terms of the said provision. 6. Mr. Katikia prays for a short adjournment to examine the point raised by the learned Counsel for the Petitioner so also to take instruction from the authority concerned.” 9. On being so directed, though the matter got listed on 17.10.2023, on prayer of the learned Counsel for the State, further time was allowed and the matter got adjourned, permitting the State Counsel to take instruction unfailingly before the next date. Pursuant to the said order, when the matter is listed today permitting the State Counsel to communicate the instruction in terms of the previous orders dated 10.10.2023 and 17.10.2023, Mr. Pattnaik, learned Additional Standing Counsel for the State/Opposite Parties with all fairness submits, though instruction could not be obtained, since the paddy seized has already been confiscated in a 6-A proceeding, the remedy available to the aggrieved party is to prefer an appeal under Section 6-C of the Act, 1955 . The Petitioner had rightly approached the Court of Additional District & Sessions Judge, Nuapada by preferring an appeal in terms of Section 6-C of the Act, 1955. Mr. Pattanaik further submits, the Court below should not have passed the impugned order on the ground of approaching the wrong forum by the Petitioner, when the Court below has authority to decide the W.P.(C) No.30945 of 2023 Page 9 of 11 said Appeal, it being competent to do so in terms of the Section 6-C of the Act, 1955. 10. Learned Counsel for the Petitioner also submits, since the paddy of the Petitioner was confiscated in a proceeding initiated under Section 6-A of the Act, 1955, the only remedy available to the Petitioner is to prefer an Appeal in terms of Section 6-C of the Act, 1955 and the Petitioner being a Bhag Chasi and not being a dealer or miller or custom miller, the order passed by the Court below, vide which Appeal preferred by his client was dismissed, is misconceived. 11. In view of the above, this Court is of the view that since the paddy of the Petitioner has been confiscated in a 6-A proceeding, in view of the provision under Section 6-C of the Act, 1955, even though the Petitioner is a “Bhag Chasi” as claimed by him, the only remedy available to the Petitioner for redressal of his grievance is to prefer an Appeal against the said confiscation order. Rightly the Petitioner had approached the Court below, challenging the said order passed in a 6-A proceeding and the impugned order deserves to be quashed. 12. Accordingly, the order dated 20th May, 2023 passed in F.A.O. No.03/03 of 2021-2022, as at Annexure-7, is set aside and the matter is remitted back to the Court below to hear the said Appeal, preferred by the present Petitioner under Section 6-C of the W.P.(C) No.30945 of 2023 Page 10 of 11 Act, 1955, afresh and decide the same on merit giving due opportunity of hearing to the Petitioner (Appellant before the Court below) in terms of Section 6-C of the Act, 1955. 13. At this Stage, learned Counsel for the Petitioner submits, since the paddy has been confiscated, direction be given to the Court below to expedite the hearing of the said Appeal and dispose of the same within a time frame. 14. In view of the said submission made, it is directed that the Court below shall do well to deal with and dispose of F.A.O. No.03/03 of 2021-2022 within two months from the date of production of the certified copy of this Judgment. 15. Accordingly, the Writ Petition stands disposed of. However, no order as to cost. …….….…………………… S.K. MISHRA, J. High Court of Orissa, Cuttack The 20th November, 2023 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 24-Nov-2023 16:38:22 W.P.(C) No.30945 of 2023 Page 11 of 11