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2001 DIGILAW 137 (GUJ)

Maganlal Laljibhai v. State of Gujarat

2001-02-23

KUNDAN SINGH

body2001
JUDGMENT : Kundan Singh, J. By means of this petition, the petitioner has sought for quashing the order dated 7-9-1995 passed by the first respondent, i.e. State of Gujarat and the order dated 30-8-1993 passed by the second respondent, i.e. District Supply Officer, Rajkot. The petitioner is doing business of foodgrains at Upleta, District Rajkot. On 9-6-1993, inspection was carried out by the Deputy Collector, Gondal. He found 1336 kgs. of Til valued at Rs. 17,368.00, wheat about 40200 kgs. valued at Rs.1,40,700.00 and Adad about 5100 kgs. valued at Rs. 30,600.00, total value at Rs. 1,88,668/- and he found the following irregularities and defects: 1. Til stock of 1336 kgs. was kept at the place other than that of place of business and this stock has been stored without making registering the same in the stock register. 2. Unaccounted stock of wheat of 402 bags weighing 40200 kgs. was kept and this stock was not registered in the Stock Register. 3. The Board of prices and stocks have not been kept. 4. At the place other than the place of business, the stock of Adad of 5100 kgs. was found. No evidence or proof was produced for the purchase of the same and that stock was not mentioned in the stock register. The storage of the stock was unauthorised. 2. The proceedings were initiated under Section 6-A of the Essential Commodities Act against the petitioner wherein the written submissions, explanation and the submissions of the parties were considered. The District Supply Officer vide his order dated 23-10-1993 passed the order forfeiting the stock seized during the investigation on 9-6-1993. The Til and Adad were forfeited 100% while 25% of the wheat stock was forfeited. The petitioner being aggrieved from the order of the District Supply Officer preferred Appeal No. 525 of 1993 under Section 6-C of the Essential Commodities Act, 1995 before the State Government ("Food & Supplies Department, 14 Sardar Bhavan, 6th Floor, Sachivalaya, Gandhinagar"). 3. After considering the material on record and the submissions of the parties, the appeal was dismissed by order dated 7-9-1995. 4. Heard the learned Counsel for the parties and perused the relevant papers on record. 3. After considering the material on record and the submissions of the parties, the appeal was dismissed by order dated 7-9-1995. 4. Heard the learned Counsel for the parties and perused the relevant papers on record. The contention of the learned Counsel for the petitioner is that the Appellate Authority has not recorded any finding regarding the forfeiture of Til and has confirmed the order of the District Supply Officer without applying its mind to the fact of forfeiture of Til. The second contention of the learned Counsel for the petitioner is that the District Supply Officer had jurisdiction to try the case of the commodity which is valued less than Rs. 1 lac while in the present case, the value of the property seized was Rs. 1, 88, 868/-. At the most, the matter could have been examined by the Collector and not by the District Supply Officer. As such the Appellate Authority has committed an error on the face of the record and rejecting the jurisdictional aspect without applying its mind. Thus, the order passed by the Appellate Authority suffers from non-application of mind. But, I do not find any substance in the submissions of the learned Counsel for the petitioner regarding absence of finding by the Appellate Authority in respect of Article Til and jurisdiction inasmuch as the Appellate Authority has considered the Adad article. It appears that the Appellate Authority has omitted to mention the article Til as the findings had been recorded in respect of other articles. So far as the jurisdiction is considered, the appeal has been provided to the State Government and the appeal has been filed and the Appellate Authority has considered the matter and stated that it cannot be said that any prejudice has been caused to the petitioner as such argument regarding the jurisdiction is not entertain able at this stage. 5. The next contention of the learned Counsel for the petitioner is that the petitioner is said to have committed breach of clause 9 of the Traders Control Orders, 1987. Though the petitioner was holding the licence under the provisions of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order 1981. As such articles of the petitioner cannot be forfeited under the clause 9 of the Traders Control Order, 1977. Though the petitioner was holding the licence under the provisions of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order 1981. As such articles of the petitioner cannot be forfeited under the clause 9 of the Traders Control Order, 1977. I had considered and found that wheat is included in the Schedule I of the Gujarat Essential Articles Dealers Revelation Order, 1977 and the same wheat article is also included in the Schedule I Item No. 9 of Food Grains including foodgrains thereof of the Gujarat Essential Articles (Licence, Control and Stock Declaration) Order, 1981 wherein it is said that the petitioner was granted licence. As the wheat is one article which finds place in both the orders, even if it is assumed that Article 9 of the Traders Control Order, 1977 is not applicable but the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 is applicable. 6. The further contention of the learned Counsel for the petitioner is that the respondent authorities have not applied mind addressing themselves to the question as to whether the entire quantity of foodgrains was liable to be confiscated merely finding or holding that such irregularities were found would not be sufficient ground for confiscation of the entire quantity of food-grains which came to be seized. It is well-settled proposition of law that it is incumbent upon the authority to consider the facts and circumstances including the nature of gravity of the irregularities or discrepancies committed by the trader or businessman in the provisions of the Act. In this respect, no finding has been recorded by any of the authorities and the articles have been confiscated only on the basis that some breach of the orders was found. The learned Counsel for the petitioner relied on the decision of this Court in the case of M/s. Arvindkumar & Brothers, a partnership firm v. State of Gujarat & Ors. reported in 1995 (1) GLH 833 and the judgment rendered by this Court in Special Civil Application No. 9557 of 1995 on 8-3-1996. In both these cases, the matter was remanded back to the authority concerned for reconsideration of the gravity and to consider the quantum of articles forfeited. reported in 1995 (1) GLH 833 and the judgment rendered by this Court in Special Civil Application No. 9557 of 1995 on 8-3-1996. In both these cases, the matter was remanded back to the authority concerned for reconsideration of the gravity and to consider the quantum of articles forfeited. As this is a case of 1993, I do not find any good reason to remand this matter to the authority for reconsideration and for recording a finding as to whether the entire quantity of the article seized was liable to be confiscated. After a period of 8 years, I do not think it fit to remand it back for recording findings and reasons for this purpose. 7. In the last, the learned Counsel for the petitioner contended that the order passed by the authorities confiscating the articles seized are illegal and without taking into consideration the judgment of this Court in the case of M/s. Govind Karsan & Co. v. State of Gujarat reported in 24 I GLH 145, wherein the guidelines had been formulated by this Court which are as under: 1. Is it a technical breach meaning thereby, is it only a formal contravention ? 2. The contravention complained of has any bearing on the stream of supply of the commodity in the market or is it merely an incidental breach ? 3. Is the dealer actuated by motives of hoarding and thereby to reap illegitimate profits ? 4. Is the dealer found to have been indulging in such activity of hoarding and/or black-marketing in past ? 5. Whether the contravention complained of is likely to create an artificial situation of shortage either in the town itself or in the entire market of the commodity in question ? 6. Is the dealer a petty businessman managing to make both ends meet with difficulty or is a big trader whose insatiable hunger for profit is the motivating force behind the contravention in question ? He has also relied on the decision of this Court in the case of K.V. Ali Muthu & Co. v. State of Gujarat & Ors. 6. Is the dealer a petty businessman managing to make both ends meet with difficulty or is a big trader whose insatiable hunger for profit is the motivating force behind the contravention in question ? He has also relied on the decision of this Court in the case of K.V. Ali Muthu & Co. v. State of Gujarat & Ors. reported in 1986 GLH (UJ) 55 and further contention in this respect is that the authorities have not given any reasons why they have imposed the penalty of confiscating the entire material seized and considering the defaults committed by the petitioner of that case, the penalty was found to be harsh and that order of confiscation was modified and instead of confiscation of entire material seized, 50% of that material was ordered to be confiscated. He requested to consider this aspect on the basis of the fact that as no defect was found in ready stock or in any other matter. The stock seized was not of the purchase of the shop from any owner but all these stocks were of the agricultural produce of the petitioner and his other family members and that was found from one of the room of the house of his brother which was rented to the petitioner. The petitioner filed a copy of 7/12 in order to show that it was the agricultural produce and it was not the article purchased from the market for the purpose of business. The submissions and statements of the members of the joint family were also perused before the authority concerned. The stock of Til was found lying in front of the compound of the said house owned by his brother. Though that defence of the petitioner was not found believable but 25% stock of wheat seized was held to be forfeited. From the orders of both the authorities, it does not appear that benefit of giving 75% of the wheat seized articles to the petitioner is based on sound words in the order but it appears that the Authorities came to the conclusion that the petitioner being a member of a family had sufficient agricultural property and it could not be denied that the property seized was not entire property of agricultural produce and it appears that the authorities have considered that some part of that property was agricultural produce from the agricultural land of the family. As such, the Competent Authority has given the benefits of 75% and forfeited only 25% of the wheat article seized. Bur that reasoning has not applied to the other 2 articles, Til and Adad which were also seized at the relevant time and that the entire property of Til and Adad was ordered to be forfeited and that has been confirmed by the Appellate Authority. If, we come to the conclusion that some part of wheat seized was of the agricultural produce from the agricultural land of the family of the petitioner than the reasoning should also be applicable in respect of 2 articles, Til and Adad. 8. The learned State Counsel could not make out any distinction regarding the reasons for applying to wheat and different reasons for Til and Adad seized. In the facts and circumstances, I am of the view that in order to shorten the litigation, the forfeiture would be applicable only to the extent of 25% in respect of other 2 articles, Til and Adad and accordingly this petition is allowed in part and the orders of the Authorities below are set aside to the extent that the forfeiture of wheat is maintained to the extent of 25% as held by both the authorities and the forfeiture of the articles Til and Adad is reduced to 25% from 100%. Rule made absolute to the aforesaid extent. No order as to costs. Direct Service permitted. Petitions partly allowed.