JUDGMENT S. K. MOOKHERJEE,J. 1. THE present appeal is directed against an order of a learned single Judge dated 15th February, 1985 in CO. No.l8249(W) of 1984 disposing of a writ petition on consent of the writ petitioner, who is respondent No. 1 in the present appeal and one of the respondents who is respondent No.6 before us. This is a typical example of how disposal of an application even on consent without due circumspection and attention, no notice being served on necessary parties, may lead to serious complications and result in irreparable damage being caused to such latter party. 2. THE relevant facts leading to the impugned order may be succinctly stated as follows :- Vikash Trading Company, the appellant before us, carries on business as a merchant and commission agent at Erode; On or about 29.10.1984, about 270 bags of turmeric bulbs (Koraghatta) had been consigned by Vikash Trading Company via South Eastern Railway to the firm of respondent No. 1, known as Krishna Traders of No.20, Hara Chandra Mallik Street, Calcutta. THE said consignment was valued, as discernible from the relevant documents, at Rs, 1,46,800/-; THE said consignment reacted the Railway shed on 10.11.84 and had been unloaded at Shall mar on 17.11.84 ; Since the relevant documents did not, by that time, reach the consignee, upon intimation by them the consignor sent necessary indemnity bond executed by the Stale Bank of India, Salem, to enable the consignee to get the goods released and such bond had been received by the consignee on 23.11.84. THE said bond on being placed before the railway authorities the said authority expressed requirement for local surety bond to enable them to release the goods covered by the consignment; Since the last date far taking delivery of the consignment; as allowed under the relevant statutory . provision, was 25.11.84, which was a Sunday, the consignee deposited all the relevant document on 26.1 1.84 and the Railway authorities found the same to be in order on 27. 11.84. provision, was 25.11.84, which was a Sunday, the consignee deposited all the relevant document on 26.1 1.84 and the Railway authorities found the same to be in order on 27. 11.84. It appears from the endorsement at the back of the indemnity bond produced that the documents were found to be in order'; THE consignee went to take delivery on 28.11.84 when it was allegedly told to them that a confiscation proceeding had been started at the instance of the Additional Collector, Howrah, who is respondent No.6 in the present appeal, since the statutory time limit for obtaining release of the goods had expired on 25.11.84 and the goods became liable to seizure and confiscation for the purpose realisation of the freight; On 1.12.1984, the consignee filed an application before the Additional Collector, respondent No. 6, praying for condonation of the delay, dropping of the confiscation proceedings and release of the seized consignment stating therein, the reasons for their failure to take delivery in time. On the said application the said respondent no. 6 made an endorsement directing the I.O. to report by 3.12.1984. THE said direction was brought to the notice of the concerned I.O., who had been impleaded in the present appeal as respondent No. 7, at about 3 P.M. on the very same day that is 1.12. 1984. It further appears that the said consignment had been formally seized on 1.12. 1984, for realisation of the charges at 5 p.m. It is significant to note at this stage that on a report dated 28.11.84 submitted by respondent no. 7 to respondent No. 6 the latter directed the seizure of the said goods immediately by his order of even date: THE said direction, however, was conveniently overlooked and not mentioned or indicated when the order on the application of the respondent No. 1 the consignee directing the I.O. to submit a report by 3.12.84 had been made on 1.12.1984; The facts which followed subsequent to the seizure are stranger still. On 1.12.1984 the seized goods forming the subject matter of the disputed consignment had been shifted from the Shalimar Goods Shed to the custody of one N. R. Das at 4, Gobinda Dhar Lane. 3. On 1.12.1984 the seized goods forming the subject matter of the disputed consignment had been shifted from the Shalimar Goods Shed to the custody of one N. R. Das at 4, Gobinda Dhar Lane. 3. AS the Custodian, who is the respondent No. 9 in the present appeal, had kept the goods in a godown situate in a notorious area and as the said goods were exposed to danger of being damaged and stolen the consignee, viz., the respondent No. 1, moved the aforesaid writ application on 4.12.1984 on which the aforesaid Civil Order had been issued restraining the I.O. from taking any further step in regard to the goods already confiscated, The copy of the application along with the gist of the order passed on 4.12.1984 had been served on respondents Nos. 6 and 7 as also on the then custodian of the goods, the respondent No. 9 in the present appeal. 4. IN the said writ application, the Additional Collector as also the Sub-INspector Mr. Bhawali, who are the respondents Nos. 6 and 7 respectively to the present appeal, filed a joint affidavit-in-opposition, inter alia, admitting that the entire seizure was for the purpose of realisation of demurrage to the tune of Rs.21,064 (Twenty one thousand and sixty four) only and also admitted the filing of an application before the respondent No. 6, to the instant appeal being the Additional Collector, Howrah, but alleged that the application was not made by the writ petitioner but by one Dipankar Mohan Saha who was claiming to be the proprietor of the writ petitioner firm. IN the said affidavit the answering deponent strongly contested any obligation on their part to release the seized goods. The categorical stand, which had been take in in the said Joint Affidavit-in-opposition, was that the present respondent No.7 acted in compliance with the order passed by the present respondent No.6. The said application came up for final disposal on 15.2.85 before the learned single Judge when by consent of the writ petitioner as also of the appearing respondents, namely, the present respondents Nos. The said application came up for final disposal on 15.2.85 before the learned single Judge when by consent of the writ petitioner as also of the appearing respondents, namely, the present respondents Nos. 6 and 7, it was disposed of, inter alia, with direction on respondent No. 5 for obtaining "sample of the goods under his custody being the subject matter of the writ petition and send it for testing to the appropriate authority and it the send is found fit for human consumption to the respondent no. 5 is directed to release the entire quantity of stocks in favour of the writ petitioner." There was an additional direction also on the present respondent No. 6 to keep the godown locked and sealed until final release of the goods. it may be noted at this stage that as per statement made in the aifidavit-in-opposition dated the 14.12.1984 of the present respondents Nos. 6 and 7, the goods were allegedly stored at 4, Gobinda Dhar Lane. Since no action was taken on behalf of the appearing respondents in conformity with. the order of the learned single Judge dated 15.2.1985 the writ petitioner, respondent No. 1 in the present appeal, moved an application for contempt on 6.3.85 whereupon a Rule was issued and made returnable on 3rd April, 1985. As the said application contained a prayer for interim order, a copy of the application was directed to be served on the alleged contemnor, namely, the Additional Collector, who did not appear on the date fixed for the disposal of the prayer for interim order, namely, 11.3.85. Further direction was given to the writ petitioner, the respondent no. 1, to send intimation to him (the alleged contemnor) by registered post to enable him to appear on the next date fixed. As even on the said date no one appeared for the alleged contemnor, the learned advocate for the writ petitioner was directed to serve a notice on Mr. Bihani, who appeared for the alleged contenmnor in the writ proceeding, since disposed of, when Mr. Bihani informed the Court that he had no instruction to appear in the matter. The learned Single Judge under the aforesaid circumstances and having presumably failed to make the additional Collector appear before him passed an interim order directing the sealing of the godown at premises No. 4/1, Gobinda/ Dhar Lane. Bihani informed the Court that he had no instruction to appear in the matter. The learned Single Judge under the aforesaid circumstances and having presumably failed to make the additional Collector appear before him passed an interim order directing the sealing of the godown at premises No. 4/1, Gobinda/ Dhar Lane. Strangely enough, after the said order was passed, the zimmadar, the respondent No. 9 to the present appeal, preferred an appeal against the said order and in connection therewith preferred an. application for stay wherein the place of storage of the disputed consignment was mentioned as 71, Canning Street and not either 4, or, 4/1, Gobinda Dhar Lane. It is pertinent to note in this connection that although the zimmadar was absent throughout the hearing of the writ application, he had full knowledge of the same as would appear from the statements made in paragraphs 2 and 4 of the application for stay preferred on his behalf before the Court of Appeal and which was affirmed oh 27th February, 1985. The appeal and the application had been disposed of by an order dated 21.3.85, inter alia, with a direction that the godown at 71, Canning Street should not be sealed by the Additional Collector. The contempt Rule, as directed, appeared before the learned single 3udge on 4.4.85 when the present appellant, having come to know about the proceeding and the fate of the consignment, intervened. Before the learned single Judge it was admitted on behalf of the Additional Collector that the godown had not been sealed till then. The Additional Collector tried to defend his curious inaction of not sealing the godown by banking upon the order passed by the Court of Appeal on 21.3.85 without explaining the reason for not taking immediate steps for compliance with the order for selling the godown as passed by the learned single: Judge on 15.2.85 during the entire long period of about 1-1/2 months. On 4.4.85 the learned single Judge appointed Mr. Manik Das, an advocate of this Court, as a Special Officer to put the godown at. 4/l,Gobinda Dhar Lane under lock and key. On 4.4.85 the learned single Judge appointed Mr. Manik Das, an advocate of this Court, as a Special Officer to put the godown at. 4/l,Gobinda Dhar Lane under lock and key. It appears from the report of the Special Officer, dated i7.4.85, that the godown at 4/1, Gobinda Dhar Lane was not owned by the custodian N. R. Das and that the disputed consignment had not also been stored in that godown but was actually stored in a godown at premises No. 4/A, Gobinda Dhar Lane owned by one Md. Salim. The said Md. Salim informed the Special Officer that the bags of turmeric had been shifted again from 4/A, Gobinda Dhar Lane to another godown of Mr. Salim at 4/C, Gobinda Dhar Lane. The Special Officer actually found the bags of turmeric stored in the said premises No.4/C, Gobinda Dhar Lane. 5. THE learned single Judge by his order dated 17th April, 1985 directed a locking up of the godown at the 4/C, Gobinda Dhar Lane. It. was stated before the Special Officer by the representative of the zimmadar that at the time of shifting of the disputed bags of turmeric from 4/A to 4/C, Gobinda Dhar Lane 13.bags got damaged and their contents came out (vide report of the Special Officer dated 18.4.85). 6. THAT as the order dated 15th February, 1985 had been passed by the learned single Judge without any notice upon the present appellant, who was the consignor of the turmerics in question, and as the present and appellant was prejudicially, affected by the said order, the appeal was taken. In that appeal before us, Mr. 6. THAT as the order dated 15th February, 1985 had been passed by the learned single Judge without any notice upon the present appellant, who was the consignor of the turmerics in question, and as the present and appellant was prejudicially, affected by the said order, the appeal was taken. In that appeal before us, Mr. Santi Nath Mukherjee, appearing on behalf of the appellant, has strongly contended that it will appear from the analysis report obtained in compliance with the order passed by us that the turmerics in question have got totally rotten and as such his client has become victim of heavy pecuniary loss inasmuch as the consignee not having been able to obtain delivery of the said turmeric due to malafide actions of the Additional Collector, the respondent No.6 to the present appeal, has disowned any liability for payment therefor the action of the respondent No.6 is absolutely unauthorised and illegal apart from being malafide as he had deliberately and malafide refused to condone 12 hours' delay at the most on the part of his consignee in getting the consignment released though even longer delays in respect of other consignments had been condoned by the very same Additional Collector "on the grounds which were no better than the ground of delay on the part of his consignee. Mr. Mukherjee has referred to specific instances of such condonation by the Additional Collector and to the averments in the affidavit in opposition whereby the fact of such condonation has been admitted by the Additional Collector. 7. MR. Banerjee, appearing on behalf of the contesting respondents, has strongly disputed the ' propriety of the submission regarding malafides on the .part of Respondent No.6. He has submitted that till 1.12.84, respondent No.6 was nowhere in the picture; the seizure which was made by Respondent No.7 was made in exercise of his own powers and such seizure, even, was not illegal in the context of storage beyond the period of grace in the Railway premises. Regarding the pecuniary damage suffere,d by the appellant due to the turmerics getting rotten, MR. Banerjee has strongly contended that the same was attributable to the consignee, who could have got the turmerics released by depositing the required amount in terms of the consent order. Lastly, MR. Regarding the pecuniary damage suffere,d by the appellant due to the turmerics getting rotten, MR. Banerjee has strongly contended that the same was attributable to the consignee, who could have got the turmerics released by depositing the required amount in terms of the consent order. Lastly, MR. Banerjee submitted that on the prayers made in the writ application, the appellant/consignor is not entitled to any relief nor is the appeal maintainable at their instance. 8. UPON careful consideration of the respective submissions, we are of the view that Mr. Mukherjee's submissions have great force and deserve acceptance, though sitting as a Court of Appeal from the writ jurisdiction, we are unable to afford complete relief to the appellant. As regards the allegation of malafide on the part of the respondent No.6, the materials on record unequivocally establish the same. Admittedly, the period of grace in terms of the first part of paragraph 3 of the W. B. Foodstuffs (Restrictions on Storage in Railway Premises) Order, 1979 (hereinafter referred to as the "said order) continued upto 25.11.84 which was a Sunday. Without thinking about any benefit under the proviso in the said paragraph 3 in favour of the consignee, the liability for failure to lift the goods accrued at the earliest on 26.11.84 by which date the required Indemnity Bonds were produced by the consignee before the Railway authorities; on 27.1 1.84. the Railway authorities found the documents for release of the goods to be in order and assured the writ petitioner to release the goods on 29.11.84. This being the State of affairs, there was no report by the Railway authorities in terms of paragraph 3(2) referred to above to the Collector alleging violation of the provisions of the said order nor was there any occasion for any action by the collector in terms of paragraph 5 of the said order. This being the State of affairs, there was no report by the Railway authorities in terms of paragraph 3(2) referred to above to the Collector alleging violation of the provisions of the said order nor was there any occasion for any action by the collector in terms of paragraph 5 of the said order. We want to make it clear at this stage that upon a proper construction and reading of paragraphs 3 and 5 of the said order, particularly in view of the proviso to subparagraph 3, Collector's power of confiscation in the facts and circumstances of the present case must be by way of a follow up action on the basis of the report of the Railway authorities, though inspite of existence of such report, the Collector is not bound to take actions as envisaged in paragraph 5 unless he arrives at his own satisfaction as required under the said paragraph. This final authority for taking penal measures has been purposively vested in an independent authority so that undue harassment and hardship may be avoided in cases of mere technical construction. This construction appears to be justified when the object of the said order is considered such object being also made clear by the Memo of the Deputy Secretary" Food and Supply Department numbered 7364 dated 13.11.84, which clearly gives out the instruction of the Government mot to enforce the penal measures in case of technical breaches (vide Annexure 'D' to the application for stay filed on behalf of the appellant before the appeal court) 9. NOTWITHSTANDING the aforesaid factual and legal position, particularly the period of delay being only trivial- and of one day, if at all, the Respondent No.7. submitted a report to the respondent No.6, the Additional Collector, for permission to seize the goods in question and the Additional Collector directed him on the very same day to exercise his inherent power of seizure on the same day. Since no seizure was made, the writ petitioner on 1.12.84 applied before the Additional Collector for release of the goods and on the said application the Additional Collector directed the I.O. to enquire and report by 3.12.84. Since no seizure was made, the writ petitioner on 1.12.84 applied before the Additional Collector for release of the goods and on the said application the Additional Collector directed the I.O. to enquire and report by 3.12.84. The said direction was communicated to the respondent No.7 at 3/5 p.m. but the said Respondent instead of making the enquiry seized the goods at 5 p.m. on the same day and removed the goods to a private godown in the manner stated hereinabove. This undue haste on the part of the Respondents 6 and 7 considered against the back ground of other cases of defaulter-consignees (vide Annexures B and. C to the application for stay) who were permitted to take delivery upon condonation of much longer delays establishes not only flagrant discrimination but existence of oblique motive, unholy and malafide proclivity ore the part of these respondents 6 and 7 to expose the consignor and/or consignee to the loss of the consignment. The records of the writ proceeding clearly demonstrate that the entire action was planned and designed and all steps were taken to frustrate attempts of the consignees and/or consignors to get the goods released through appropriate judicial orders. Moreover, the respondents 6 and 7 though directly responsible for malafide seizure and removal of goods did not even care to see that the removed consignments had been properly preserved by the zimmadar of the their choice and perfunctory storage by the zimmadar of their choice and perfunctory storage rendered the same absolutely unable as stated hereinabove. 10. IN the result, the appeal is allowed. The impugned order beINg set aside, we allow the writ petition and set aside the seizure on a declaration that such a seizure was illegal and malafide and on a further declaration that respondents 6 and 7 are personally responsible for such malicious seizure. SINce the goods are totally lost we make no order for return of the goods. The appellants however are given liberty to sue the respondent Nos. 6 and 7 for appropriate damages. The appellants are entitled to cost to be paid by respondents 6 and 7 - hearINg fee beINg assessed at 30 gms. Appeal allowed.