IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.38969 OF 2011(GM-PDS) BETWEEN:
1. State of Tamil Nadu By Inspector of Police Civil Supplies, CID Tirunalveli Unit, Tirunalveli, Tamilnadu.
2. Inspector of Police Civil Supplies Madurai Unit, Karpaga Nagar 11th Street, K.Pudur Madurai-625007. … Petitioners (By Sri.Jayakumar S Patil, Senior Counsel for Sri. K.Prasad Hegde, Advocate) AND:
1. The Deputy Commissioner (Food) Bangalore Urban District City Civil Court Complex Bangalore.
2. K. Palani Selvam S/o Kaasinadar Major Anathammal Kaasi Rice Mill Kovilpatti, Tuthookudi District Tamil Nadu.
3. R. Gopal @ Balagopal S/o Ratnasamy Nadar, Shanmuga Nadar Major Lakshmi Traders Kovilpatti, Tuthookudi District Tamil Nadu. ... Respondents (By Smt. Niloufer Akbar, AGA. For R1: Sri.Harish K.S., Adv. For R2 & R3) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to call for the records from the R1 which ultimately resulted in passing order dated:22.2.2011 passed by the R1, as per Annexure-A. & quash the order dated:22.2.2011 passed by the R1 as per Annexure-A & hear the petitioners afresh & pass appropriate orders after considering all the relevant documents produced by the District Collector, Salem as per Annexure-O.
This writ petition, coming on for hearing this day, the Court, made the following:
ORDER This writ petition is directed against the order dated 22.02.2011 passed by the Deputy Commissioner, Bangalore Urban District, Bangalore in Proceedings bearing No.JI A (NA) AA AVAKAA 4/2009-10 produced as Annexure-A, thereby rejecting the petition filed under Section 6A of the Essential Commodities Act, 1955 (‘Act’ for short) 2. The brief facts of the case are that the respondent No.2 is running a rice mill in the name and style of ‘Ananthammal Kasi Rice Mill’ in the State of Tamil Nadu and he is doing wholesale and retail business in the rice being the owner of the ‘Lakshmi Traders’. Respondent Nos. 2 and 3 have purchased the Public Distribution System rice (‘PDS rice’ for short) illegally from rice brokers and stored them at the rice mill of second respondent and they have also purchased discolored PDS rice from Tamil Nadu Civil Supplies Corporation Ltd. in tender auction at Nagapattinam for M/s.Jagadeesh Exporters. The discolored rice was illegally transported from Thoothukudi by road. The said rice has to be transported only after obtaining road permit from the District Supply Officer by intimating the route through which they were transporting. But without obtaining the authorization from the competent authority they were illegally transporting the PDS rice. On 29.01.2000 the Sub-Inspector of Police, Food and Civil Supplies, Tirunelveli received an information that a large quantity of PDS rice was being smuggled from the rice mill of respondent No.2. A raid was conducted and from the investigation it was found that PDS rice was being transported in 18 containers belonging to Container Corporation of India Ltd., (CONCOR) Thoothukudi by train. The train was stopped at Salem and with the intervention of the officers of the CONCOR the train was permitted to reach its destination at Whitefield. In Whitefield the authority has seized the samples in the presence of the witnesses. The seizure was reported to the District Collector, Salem as per Section 6A of the Act.
3. The proceedings have been initiated by the District Collector, Salem. That has been challenged before this Court in W.P.Nos.18910-18911/2000. This Court by order dated 16.02.2006 has held that the materials have been seized in the State of Karnataka, the proceedings under the Essential Commodities Act has to be initiated in the State of Karnataka. Pursuant to that, proceedings under Section 6A of the Act has been initiated by the Deputy Commissioner, Bangalore Urban District in Case No.4/2009. The Deputy Commissioner has issued notice under Section 6B of the Act to the parties. Pursuant to that notice respondents have appeared through the counsel. The Deputy Commissioner by order dated 22.02.2011 dismissed the petition filed by the petitioners under Section 6A of the Act holding that the petitioners have failed to prove the charges. Being aggrieved by the same, petitioners have filed this petition.
4. Sri Jayakumar S.Patil, learned Senior Counsel appearing for Sri Prasad Hegde for the petitioners submits that the proceedings have been initiated under Section 6A of the Act, the matter was called on 24.08.2010, then the matter was adjourned to 18.01.2011, again matter was called on 28.01.2011, it was adjourned to 01.02.2011, again on 01.02.2011 no proceedings have been taken place. Without any notice, on 15.02.2011 the matter has been heard and reserved for orders. Without giving any notice impugned order as per Annexure-A came to be passed. In support of his case, he has relied on the order sheet produced at Annexure-P.
5. Secondly, learned Senior Counsel contends that on 15.02.2011, on behalf of the petitioners nobody represented. Hence, the impugned order is passed without giving a proper opportunity to the petitioners. Therefore, the impugned order is in violation of the principles of natural justice.
6. Thirdly, he contended that even though in the order sheet dated 15.02.2011 it is mentioned that on behalf of the petitioners Mr.K.Premchandran, Sub-Inspector of Police, Civil Supplies, C.I.D., Tirunalveli has appeared, but as per Annexures R and S, as on 15.02.2011 Mr.Premchandran has attended the work in Thoothukudi Unit. Therefore, he submits that what is mentioned in the order sheet is not correct.
7. Fourthly, he contends that the impugned order as at Annexure-A is passed without application of mind. It is contrary to the provisions of Essential Commodities Act. Even though the impugned order runs over 15 pages, only in the last page of the order a finding has been given by the authority to the following effect:
“ Even though there is a reference of informing the incident of transporting the rise from Kovilpatti Rise mill to White field Karnatka to the Deputy Commissioner, Bangalore Urban District on 01.02.2000, but there is no report pertaining to the same. It is also stated that on 30.01.2000, 378.958 metric tones was confiscated to the Government which was carried in 18 bogies which was subjected to Mahazer and samples were extracted from 15 containers out of 18 containers and sent for laboratory for test and so far the laboratory report has not been given to the Respondents. In this proceedings, the charges made by the petitioners on the respondents are baseless, this Court has seriously noted that no documents have been produced to prove the charges… ”
Therefore, it is very clear that the impugned order is passed without application of mind.
8. Fifthly, leaned Senior Counsel contends that in the impugned order it is mentioned that there are no records produced. The petitioners, immediately after the matter has been transferred to the Deputy Commissioner, Bangalore Urban District, Bangalore, have transferred the entire documents to the Deputy Commissioner. The same is evident from the letter issued by the respondent No.1 which is available in the original records produced by learned AGA. But in the findings it is mentioned that the petitioners have not produced any documents to prove the charges made against the respondents. This finding is contrary to the materials available on record. Hence, he sought for allowing the writ petition.
9. Per contra, Sri K.S.Harish, learned counsel appearing for respondent Nos. 2 and 3 submits that as per Clause 15 of the provisions of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, there is a remedy of appeal. He contended that in view of the above provisions writ petition is not maintainable. Further, he relied on para 4 of the Circular bearing Rc.No.B1/43427/87 dated 21.01.1988 (Annexure R-14). The same reads as hereunder:
“4. In this connection, I am to state that, in general, even if the sample accompanies the lorry, it is essential to draw samples from the consignment seized 3 packets, seal them, handover one to the person from whom the seizure is made, retain one with the officer who seized the stock and send the 3rd to the quality analysist and got it analyzed by him and obtain a certificate from him as to whether both sample agree. A copy of the analysis certificate should be issued to the claimant of the consignment and he should be given an opportunity to appeal against the analysis certificate. Only thereafter final orders under Section 6-A of the Essential Commodities Act 1955 should be passed after conducting enquiry.”
10. Secondly, he contended that the analysis certificate is not issued to the respondents. On that ground, the proceedings initiated under Section 6A of the Act is not maintainable. He further relied on para No.7 of the judgment of the High Court of Judicature at Madras in the case of M.KRISHNAMURTHY vs. EX.OFFICIO SECRETARY TO GOVERNMENT AND OTHERS (W.P.No.1892/1994 disposed of on 19.12.2000). The same is extracted hereinbelow:
“7. A reading of the above instructions make it clear that the respondents are under a statutory obligation to draw samples from the consignment seized in three packets, seal them, hand over one to the person from whom the seizure is made and also to furnish a copy of the analysis certificate to the claimant of the consignment.”
11. Thirdly, he submits that since there is non-compliance of the provisions of the Circular, the proceedings itself is not maintainable. Considering all these aspects the impugned Order at Annexure-A is passed.
12. Fourthly, he contended that in the petition itself the petitioners have stated that without informing the petitioners Mr.Premchandran appeared on 15.02.2011. Therefore, they have initiated departmental enquiry against Mr.Premchandran. Hence, the contention of the petitioners that they were not aware of the proceedings on 15.02.2011 is not correct.
13. Fifthly, he submits that Mr.Premchandran was not a party before the Court and he had not filed affidavit stating that he did not appear on 15.02.2011. Hence, he prays for dismissal of the writ petition.
14. Smt.Niloufer Akbar, learned Additional Government Advocate appearing for the respondent No.1 submits that in respect of the order sheet is concerned, the matter was called on 28.01.2011, then it was adjourned to 01.02.2011. But nothing is forthcoming in the records to show that subsequently notice has been issued to the parties to appear on 15.02.2011. She further contended that as per the records Mr.Premchandran has appeared on that day and his signature has been taken. On the basis of the records, learned AGA submits that the Deputy Commissioner has received the original records from the District Collector, Salem and after completion of the proceedings the same has been sent back to the District Collector.
15. Heard learned counsel for the parties and perused the records.
16. The second respondent is owning a rice mill in the name and style of ‘Ananthammal Kasi Rice Mill’ in the State of Tamil Nadu and he was also doing wholesale and retail business in the rice in the name of ‘Lakshmi Traders’. On 01.02.2000 the petitioners have seized 18 containers in the train filled with rice bags which belongs to respondent Nos. 2 and 3 and drawn mahazar and initiated proceedings under Section 6A of the Act on the ground that the seized rice belonging to the Public Distribution System. The proceedings have been initiated by the District Collector, Salem. The same has been challenged by the petitioners before this Court in W.P.Nos.18910-18911/2000. This Court on 16.02.2006 passed an order holding that since the material has been seized in the State of Karnataka, the proceedings has to be initiated under Section 6A of the Act in Karnataka. Pursuant to the order passed by this Court the Deputy Commissioner, Bangalore Urban District has initiated proceedings under Section 6A of the Act and he issued notice to respondent Nos. 2 and 3 under Section 6B of the Act. Pursuant to that notice, a case has been registered as Proceedings No. JI A (NA) AA AVAKAA 4/2009-10. The case was called on 24.08.2010. On that day, “Case called. Respondents present and sought for documents. To furnish the documents by the petitioners and permit for verification of the file call on 24.08.2011”. Again the matter was called on 18.01.2011. On that day, respondents were present, petitioners were absent and the matter was adjourned to 28.01.2011. The matter was again called on 28.01.2011 since the Deputy Commissioner was engaged in civil duties, the matter was adjourned to 01.02.2011. On 01.02.2011 no proceeding has been held. As per the order sheet and the original documents produced by the learned AGA, nothing is forthcoming for fixing the date as 15.02.2011 for hearing the matter. On that day, the Deputy Commissioner has passed the following order:
“ Case called. Sri. V.Balavrdhanam, Advocate for respondents 1 & 2 and Sri.K.Premchandran, Sub- Inspector of Police, Civil Supplies, C.I.D. Tirunalveli appeared. Advocate for respondents submitted documents to show that the rice was purchased from PRS Traders Bangarpet and it is not PDS rice. Total quantity 22 load of discolored rice. He has filed the written arguments. No supporting documents are produced. A copy of the order of the Hon’ble high Court of Karnataka in W.P.No.162/2006 is placed in the file. Arguments completed. Posted for orders.”
17. In the order it shows that one Mr.Premchandran has represented on behalf of the petitioners herein. The respondent Nos. 2 and 3 were represented through their counsel. The very documents which are produced by the petitioners, i.e., the copy of the General Dairy dated 15.02.2011 and TA Bill extract at Annexures R and S, respectively, show that Mr.Premchandran was on duty in the Headquarters. Even in the original records produced by the learned AGA nothing is forthcoming that there is a notice issued to the petitioners fixing 15.02.2011 as the date for hearing the case. Therefore, it is clear from the records that no notice is issued to the petitioners to hear the case on 15.02.2011. Hence, the impugned order is passed contrary to the principles of natural justice.
18. In so far as the departmental enquiry is concerned, since there is a reference of presence of Mr.Premchandran before the Deputy Commissioner in order dated 15.02.2011, the petitioners have initiated a departmental enquiry against Mr.Premchandran. It is not the case of the petitioners that they have received notice for fixing the date as 15.02.2011. Their only grievance is that in the order sheet of the Deputy Commissioner dated 15.02.2011 there is a reference that Mr.Premchandran was present on that day. On that basis, they have initiated the departmental enquiry.
19. The contention of respondent Nos. 2 and 3 that there is a remedy of appeal under Clause 15 of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, cannot be accepted as this provision is not applicable to the proceedings initiated under Section 6A of the Act. What is mentioned in the notice is that the respondents have violated the provisions of Control Order 1982. Since the proceedings have been initiated under Section 6A of the Act under which an appeal provision is provided under Section 6C. Section 6C is extracted hereinbelow:
“6C.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 concerned and the judicial authority] shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.
(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] [and such price shall be determined-
(i) in the case of foodgrains, 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 sub-section (3C) of section 3; and (iii) in the case of any other essential commodity, in accordance with the provisions of sub- section (3) of section 3]”
20. Under Section 6C of the Act the remedy of appeal is available only to a person aggrieved by an order of confiscation under Section 6A of the Act. Hence, the contention of the respondents that the petitioners have alternative remedy of appeal is rejected.
21. In the impugned order at Annexure-A a finding is given that no documents have been produced to prove the charges. From the perusal of the original records it is very clear that the documents have been submitted by the petitioners. Only after the proceedings have been concluded, by letter dated 03.10.2011 records have been sent back to the District Collector, Salem. Hence, the finding given by respondent No.1 is contrary to the materials available on record.
22. In respect of the contentions raised by the respondents that the mahazar report and the analysis certificate have not been furnished to the respondents, as per the Circular it is required for a fair hearing, the analysis certificate has to be furnished to the petitioners to defend their case, Annexure-R14 dated 21.01.1998 produced by the respondent Nos. 2 and 3 is neither a circular nor executive order. It is only instruction issued by the Commissioner of Food and Civil Supplies. Even though in the order sheet dated 24.08.2010 is it mentioned that there is a request from the respondents herein to seek documents and there is a permission to verify the documents. But there is no finding in the order that petitioners have refused to furnish the records to the respondents. Even in the final order also nothing has been mentioned by the Deputy Commissioner. On the other hand, the specific case of the petitioners is that the mahazar and analysis certificate are part of original records which are submitted to the Deputy Commissioner, Bangalore Urban District, Bangalore and in the records produced by the learned AGA, there is a reference that District Collector, Salem has submitted the original records to Deputy Commissioner. Since the respondent No.1 has not given proper opportunity to the petitioners to defend their case this Court is of the opinion that the matter requires reconsideration by Deputy Commissioner, Bangalore Urban District, Bangalore.
23. In respect of the judgment cited by the respondents in the case of M.KRISHNAMURTHY (supra), there the admitted fact is that analysis report is refused to be supplied to the claimant of consignment. In the case on hand, it is the specific case of the petitioners that all the documents are available in the original records. In fact the order sheet dated 24.08.2010 specifies that respondents sought permission to verify the records. In view of the above, the judgment relied on by the respondents is not applicable to the facts of this case.
24. Accordingly, writ petition is allowed. The order dated 22.02.2011 passed by the Deputy Commissioner, Bangalore Urban District, Bangalore in Proceedings bearing No.JI A (NA) AA AVAKAA 4/2009-10 vide Annexure-A is set aside and the matter is remitted back to the Deputy Commissioner, Bangalore Urban District for fresh consideration. The petitioners are directed to furnish all the original records to the Deputy Commissioner within four weeks from the date of receipt of a copy of this order. If respondent Nos. 2 and 3 require any records they can file an application before the Deputy Commissioner. The Deputy Commissioner shall consider the said application for supplying the documents, then he has to proceed with the matter in accordance with law and pass appropriate order within six months from the date of receipt of the records. The amount released shall be subject to the order to be passed by the Deputy Commissioner.
Sd/- JUDGE Cm/-