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2006 DIGILAW 767 (CAL)

EASTERN COALFIELDS LIMITED v. AJAY GLASS WORKS

2006-12-04

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

body2006
PRABUDDHA SANKAR BANERJEE, J. ( 1 ) THIS mandamus appeal at the instance of the appellants who were respondent Nos. 1 to 3 is against the order dated 23rd August, 2005 passed by a learned Single Judge of this Court in connection with w. P. No. 12466 (W) of 2004. ( 2 ) THE said writ application was brought by the respondent Nos. 1 to 3 against the present appellants and the proforma-respondent Nos. 4 and 5 with prayer for issuing writ in the nature of mandamus commanding the concerned respondents authorities to release 525 metric tonnes of Grade-B steam coal allegedly seized from the petitioners on 20th January, 1987 in connection with ranigunj Police Station Case No. 11 dated 20. 1. 1987. The writ petitioners also prayed for some other relief. ( 3 ) THE facts giving rise to filing of the said writ application are as follows: - That on 20. 1. 1987, on the basis of a complaint lodged before the respondent No. 5, two trucks carrying coal were apprehended and consequently, a search was conducted jointly by the respondent No. 5 and cisf in the premises of the petitioner No. 1 which is a partnership firm engaged in manufacturing glass. The petitioner No. 2 is one of the partners of the said firm and the petitioner No. 3 is a limited Company and carries on business of manufacturing and sale of glass and glassware. At the time of raid on 20. 1. 1987, according to the petitioners, CISF along with the respondent No. 5 seized 544 MT of Grade-B steam coal from the premises of the petitioner No. 1 on the allegation that no valid paper could be produced for possession of the said amount of coal. Though 544 MT of coal were seized, the petitioners complained that in the seizure list, the amount of 525 MT was shown as the weight of the seized coal. On the basis of the same, a criminal case being ranigunj Police Station Case No. 11 dated 20. 1. 1987 under Sections 379/411 of Indian Penal Code read with Sections 165a/147/337/427/353/506 of Indian penal Code along with 7 (i) (a) (ii) of Essential Commodities Act was started against the petitioner Nos. 1 and 2 and some other persons. On the basis of the same, a criminal case being ranigunj Police Station Case No. 11 dated 20. 1. 1987 under Sections 379/411 of Indian Penal Code read with Sections 165a/147/337/427/353/506 of Indian penal Code along with 7 (i) (a) (ii) of Essential Commodities Act was started against the petitioner Nos. 1 and 2 and some other persons. ( 4 ) PURSUANT to the said Police case, one DEBGR case, namely, 4 of 1987, was started before the learned Special Judge at Asansol and a confiscation proceeding also commenced before the Collector under the essential Commodities Act thereby giving rise to E. C. Misc. Case No. 1 of 1987. ( 5 ) THE writ petitioners previously filed one writ application before the hon'ble Court which was numbered as Matter No. 668 of 1987. However, the said case was dismissed on 11. 02. 1992 by His Lordship, the Hon'ble Justice sushanta Chatterjee (as His Lordship then was ). As the I. O could not submit the charge-sheet within the stipulated period, the learned trial Judge on the basis of application by the writ petitioners discharged them as well as the other accused persons on 21. 6. 1993 as per the provisions of Section 258 of the Criminal Procedure Code. Thereafter, the Collector by order dated 2. 3. 1994 dropped the confiscation proceeding and directed that the seized articles should be returned to its owner. According to the writ petitioners, the seized coal was given in zimma of the agent Bansra Colliery through mr. J. Banerjee who executed the zimmanama. ( 6 ) BEING armed with the order of the Collector, the writ petitioners approached the respondent No. 5 for return of the seized articles. As the seized articles could not be returned back to the writ petitioners they had come up with writ application with the prayers as stated above. ( 7 ) BY the order impugned, the learned Single Judge allowed the writ application and directed the appellant No. 1 to return the entire stock of seized coal to the petitioners without any further delay and positively, within a period of two weeks from the date of communication of the order. ( 7 ) BY the order impugned, the learned Single Judge allowed the writ application and directed the appellant No. 1 to return the entire stock of seized coal to the petitioners without any further delay and positively, within a period of two weeks from the date of communication of the order. The learned Single judge further directed that in the event any part or portion of the seized coal was not available, the General Manager, Eastern Coalfields Ltd. , Kanustoria area Burdwan, being the custodian of the seized coal, should arrange for supply of equivalent quantity of coal to the petitioners as the said petitioners should not be allowed to suffer any prejudice after being discharged from the proceedings along with other accused persons and specially, when the said proceedings initiated against the petitioners had been admittedly dropped. ( 8 ) MR. Sen learned Senior Counsel appearing for the appellants challenges the order impugned on the following grounds: - (a) That the learned Single Judge erred in passing the direction upon the appellant No. 1 for return of the seized coal though no material was produced to show that the appellant was the zimmadar and as such, the appellant is not liable for return of the same. (b) That the learned Single Judge committed error in allowing the writ application though the writ petitioners failed to prove that they were owners of the seized coal recovered from the accused persons involved in the said criminal case. (c) That the learned Single Judge committed error in allowing the writ application filed after the lapse of about eleven years from the date of the disposal of the criminal case, more so, because in spite of giving opportunity to the owners to take back the coal seized, no body approached the authority for establishing the ownership of the goods. (d) That the learned Single Judge ought to have dismissed the writ application on the ground of not only delay but also on the ground that disputed facts as regards the question whether the appellant at all took zimma of the goods was involved. ( 9 ) MR. Chatterjee, learned Senior Counsel appearing for the respondent nos. (d) That the learned Single Judge ought to have dismissed the writ application on the ground of not only delay but also on the ground that disputed facts as regards the question whether the appellant at all took zimma of the goods was involved. ( 9 ) MR. Chatterjee, learned Senior Counsel appearing for the respondent nos. 1 to 3 however, supports the order of the learned Single Judge and he contends that the learned trial Judge rightly came to the conclusion that the writ' petitioners being the actual owners of the seized coal are entitled to get back the seized coal as they were discharged from the criminal proceeding. ( 10 ) MR. Chatterjee further contends that the appellants, specially the appellant No. 1, being the custodian of the seized coal, is bound to return those articles to its rightful owners after the writ petitioners were discharged from the criminal case. ( 11 ) THERE is no dispute that the writ petitioner No. 1 was engaged in manufacturing glass and the writ petitioner No. 2 is one of the partners of the said firm. It is also not, disputed that huge quantity (525 MT) of coal was seized from the premises of M/s. Ajay Glass Works at Ranigunj on 20. 1. 1987. It is the specific case of the writ petitioners that one J. Banerjee, an agent on behalf of bansra Colliery took zimma of the said seized coal by executing one zimmanama. ( 12 ) MR. Chatterjee contends that as J. Banerjee, the zimmader executed the zimmanama on behalf of Bansra Colliery, the Eastern coalfields Ltd. is deemed to be the custodian of the said seized coal and accordingly, Mr. Chatterjee contends that the learned Single Judge rightly passed the impugned order. ( 13 ) MR. Sen, learned Counsel for the appellants challenges the maintainability of the writ application mainly on the ground that the writ Court had no jurisdiction to entertain the application by which the respondent Nos. 1, 2 and 3 prayed for return of the seized coal after 11 years. Mr. Sen further contends that as there was alternative efficacious remedy regarding return of the seized coal even pursuant to the order of the confiscating authority, the learned Single Judge erred in passing the order impugned. It is the further contention of Mr. 1, 2 and 3 prayed for return of the seized coal after 11 years. Mr. Sen further contends that as there was alternative efficacious remedy regarding return of the seized coal even pursuant to the order of the confiscating authority, the learned Single Judge erred in passing the order impugned. It is the further contention of Mr. Sen that no valid legal/recoverable right has been infringed by the action or inaction on the part of the present appellants. ( 14 ) ON the basis of the materials-on-record, viz. police register, it is seen that the seized coal was released in favour of one J. Banerjee, stated to be the Manager of Bansra Colliery. Mr. Sen contends that the said J. Banerjee was never authorized either by Bansra Colliery or by Eastern Coalfields Ltd. to execute the zimmanama to receive the seized coal on their behalf. Mr. Sen contends further that even if it is found that J. Banerjee ever executed the zimmanama, the Court must hold that the same was executed by J. Banerjee in his personal capacity. ( 15 ) IT should be stated here that the zimmanama in question which is of great importance has not been produced before any Court of law. In the absence of the same, Mr. Sen contends that it would not be possible for any Court to come to any final conclusion that the said zimmanama was really executed by j. Banerjee on behalf of Bansra Colliery or Eastern Coalfields Ltd. ( 16 ) WHETHER J. Banerjee executed the said zimmanama in his personal capacity or on behalf of the appellants cannot be ascertained without verifying the contents of the said zimmanama and without taking any evidence and as such, disputed question of fact is involved herein. ( 17 ) THE xerox copies of the property register only go to show that the seized coal was released in favour of J. Banerjee. The said copies of the property register do not show that the appellants were given the custody of the seized coal. ( 17 ) THE xerox copies of the property register only go to show that the seized coal was released in favour of J. Banerjee. The said copies of the property register do not show that the appellants were given the custody of the seized coal. There is no evidence that the said huge quantity of seized coal was removed from the custody of Ajay Glass Works wherefrom those were seized and were given in custody of Eastern Coalfields Ltd. Even assuming the fact that J. Banerjee took custody of the seized coal on executing zimmanama, there is no material to show that the said J. Banerjee removed that huge amount of coal from the premises of the writ petitioners. Moreover, for the reason best known to the appellant, the said J. Banerjee was not even made parties in the writ application. Whether the zimma was taken by J. Banerjee in his personal capacity or as agent of the appellant cannot be decided in the absence of the said J. Banerjee when the appellants have specifically denied that it was taken in zimma on behalf of the appellants. The appellants have also asserted that it did not appear from their documents that such huge amount of coal was ever transmitted to its possession by virtue of any zimma given by the appellants. All these points involve disputed question of fact and in the absence of the original or certified copy of the zimmanama, we are of the clear opinion that the writ Court should not entertain any writ application under Article 226 of the Constitution concerning those conflicting pleas long after eleven years after the disposal of the criminal case. No reason has been assigned in the writ application, why in spite of giving liberty to the owners of the goods to apply for return, the writ petitioners did not approach the Court for establishing their ownership in course of next ten years when there were total seven accused persons who were impleaded in the criminal case and the writ petitioners woke up from their slumber after the destruction of the records of the criminal case. At this stage, there is no possibility tracing out the original zimmanama. At this stage, there is no possibility tracing out the original zimmanama. Collusion between the said J. Banerjee and the writ petitioners cannot also be ruled out particularly when the writ petitioners have not assigned any reason for not impleading the said J. Banerjee in this proceeding. ( 18 ) MR. Chatterjee, however, contends that as there was violation of the provisions of Article 19 (1) (g) of the Constitution, the writ Court has power to entertain such application even after long lapse of eleven years as according to him there is no waiver of fundamental right. ( 19 ) WE cannot agree with the said plea as raised by Mr. Chatterjee. From the materials-on-record it is clear that the right of the petitioners to practice any profession, or to carry on any occupation, trade or business has not been curtailed by the action or inaction on the part of the present appellants. The concerned Court after discharge of the accused gave liberty to the owners to take back the seized articles. If in spite of the knowledge of such order, the writ petitioners did not apply for return within next eleven years for establishing their ownership nor did they challenge the said order before appropriate forum in accordance with law within the period of limitation, after allowing the time of destruction of the records of the criminal proceedings to expire, they should not be allowed to come up with a writ application praying for return of the goods not from J. Banerjee but from the appellants without even making the person whose name appears in the police register as zimmadar particularly, when the appellants have specifically denied the authority of the said J. Banerjee to execute any zimmanama on their behalf. Here, no fundamental right of the writ petitioners has been violated by the State. ( 20 ) THE case was started in the year 1987 and writ petitioners along with some other persons were discharged in the year 1993. However, no order was passed by the learned Special Judge regarding return of the seized articles as a separate proceeding was pending before the appropriate forum i. e. Additional District Collector being E. C. Misc. Case No. 1 of 1987. By order dated 2. 3. 1994 the Additional District Magistrate directed the return of the seized coal weighing around 525 MT to the owners. Case No. 1 of 1987. By order dated 2. 3. 1994 the Additional District Magistrate directed the return of the seized coal weighing around 525 MT to the owners. We give emphasis upon the word "owners". ( 21 ) IN spite of the said specific order, the writ petitioners never tried to establish their claim over the seized coal as owners. Section 457 of the Criminal procedure Code runs as follows: - "whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. If the person so entitled to is known, the Magistrate may order the property to be delivered to him on such conditions (if any ) as the magistrate thinks fit and if such persons is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such, property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. " ( 22 ) IN this case the appropriate forum passed order for return of the seized coal on 2. 3. 1994. However, the writ petitioners never approached the said forum to establish their claim as owners within the stipulated period. ( 23 ) ONE Sub-Inspector of the concerned Police Station wrote one letter to J. Banerjee to arrange for return of the seized articles in the year 2000. There is nothing on record that it was ever received by Sri J. Banerjee. The writ petitioners thereafter approached this Court even five years thereafter, in the year 2005. ( 24 ) IT is therefore clear that writ petitioners have approached the writ court after eleven long years. In Paragraph-22 of the writ application they gave casually the reasons for this long delay. The writ petitioners thereafter approached this Court even five years thereafter, in the year 2005. ( 24 ) IT is therefore clear that writ petitioners have approached the writ court after eleven long years. In Paragraph-22 of the writ application they gave casually the reasons for this long delay. The only explanation given therein is that due to labour trouble the factory of the writ petitioners was closed said that in the year 2004, they have started a new factory in the State of Rajasthan and that is the reason for delay in filing the writ application. In our view, such explanation is utterly unsatisfactory and we are convinced that the explanation of delay as mentioned in Paragraph-22 cannot be the ground for condonation of long delay of eleven years. ( 25 ) WE have already stated that in the absence of the original zimmanama or certified copy thereof, we are unable to hold that the zimmanama so executed by J. Banerjee was really on behalf of the appellants. In our opinion, it would not be proper to rely solely on the entries of the property register as the alleged zimmanama was not produced. Moreover, even if it appears that one J. Banerjee describing him to be agent of the appellants executed any such zimmanama, unless it is proved that such document was executed with the consent of the appellant or that the seized goods were entrusted to the appellants by the said J. Banerjee, the appellants cannot be held responsible. This disputed question can be decided only in the presence j. Banerjee and not even before this forum. ( 26 ) WE now propose to deal with the cases referred by Mr. Chatterjee in course of his argument. ( 27 ) IN the case of State of Gujarat v. Memon Mahomad Hazi Hassan, reported in AIR 1967 SC 1885 , the Supreme Court was dealing with the case where after the confiscation of a vehicle by the Customs authority, during the pendency of an appeal against confiscation, the police authority had sold away the vehicle in auction sale as an unclaimed article. After the appeal was allowed, and the confiscation order was set aside, the owner applied for return of the vehicle. After the appeal was allowed, and the confiscation order was set aside, the owner applied for return of the vehicle. The plea was taken on behalf of the respondent that the vehicle having been sold as unclaimed goods pursuant to the order of the magistrate, the authority was under no obligation to return the vehicle. Such plea was turned down by the Supreme Court observing that it was a mistake on the part of the police authority to sell the vehicle as an unclaimed one during pendency of the appeal knowing fully well that the appeal was pending and therefore, in such a situation, the confiscating authority cannot evade the responsibility of returning the vehicle or paying the value of the vehicle after the order of confiscation was set aside. In the case before us, at the time of dropping the proceeding, the Additional District Magistrate passed specific order directing return of the goods to the owner. The writ petitioners were party to the proceedings and were aware of such order passed in the year 1994 but did not lodge any claim before the appropriate authority asserting that they were the owners of the goods. Long 11 years thereafter, they have approached the writ Court claiming return of the seized coal after the records of those proceedings have been destroyed and in such circumstances, the said decision cannot have any application to the present case. In the said decision it was not laid down as a proposition of law that in spite of giving opportunity to the owner to lodge claim for return, a person can wait for indefinite point of time for lodging a claim when by that time, the records are no longer available. We, therefore, find that the said decision does not help Mr. Chatterjee's client in anyway. ( 28 ) IN the case of Justice D. P. Sarker v. State of West Bengal, reported in 2004 (1) CLJ 453 , one of us sitting singly (Bhattacharya, J.) held that there was no waiver of fundamental right and for mere delay in enforcing a fundamental right, a writ application cannot be rejected. We fully approve the said principle, but in our view, such principle cannot have any application to the fact of the present case. We fully approve the said principle, but in our view, such principle cannot have any application to the fact of the present case. In the case before us, the confiscation proceeding was dropped and order was specifically passed for return of the seized articles to the owners. The petitioners, though party to the proceedings, did not claim return of the articles but as pointed out earlier, long thereafter came up before the writ Court asserting such right when evidence as to who took the zimma of the article is missing. The alleged zimmadar appearing from the record of the police has also not been made party and at the same time, the present appellants are denying that the alleged zimmadar took responsibility of the goods on their behalf with their consent. It is a settled proposition of law that in case of disputed questions of fact, a writ Court may legitimately decide not to entertain the writ application if it appears to the Court that such disputed questions cannot be effectively adjudicated by way of affidavit. Moreover, in this case, there is no violation of any fundamental right of the writ petitioners; at the most, the writ petitioners had the legal right to get back the seized articles provided they could prove that they were the owners thereof. Therefore, the said decision cannot have any application to the fact of the present case. ( 29 ) AS regards the three decisions in the cases of (a) E. P. Royappa v. State of Tamil Nadu, reported in 1974 (4) SCC 3 , (b) G. B. Mahajan v. Jalgaon municipal Council, reported in 1991 (3) SCC 91 and (c) State of U. P. v. Jahuri mal, reported in 2004 (4) SCC 714 , all that has been held in those decisions is that the "state" or an instrumentality of the "state" while acting in the discharge of public duties should act fairly and not arbitrarily. We fail to appreciate how those decisions can be of any help to the writ petitioners. In the case before us, specific direction was given for return of the confiscated items to the owners and the writ petitioners with full knowledge of such order did not claim return of the articles. We fail to appreciate how those decisions can be of any help to the writ petitioners. In the case before us, specific direction was given for return of the confiscated items to the owners and the writ petitioners with full knowledge of such order did not claim return of the articles. After the destruction of the records of the case, if somebody comes forward and claim ownership, and the State-respondent expresses its inability to verify the claim, such action can by no stretch of imagination be described as arbitrary. We, therefore, find that those decisions are of no avail to the writ petitioners. ( 30 ) IN the cases reported in (a) Ram Chandra v. State of Maharastra, 1974 (1) SCC 317 , (b) Hindustan Petrolium v. Dolly Das, 1999 (4) SCC 450 and (c) Dehri Rohtas Light Railways v. District Board, reported in AIR 1993 SC 802 the Supreme Court laid down the general proposition of law that delay is only one of the factors to be taken into account by a writ Court while entertaining a writ application but not the sole reason for refusal to entertain a writ application unless in view of such delay third party's right has intervened or the respondent has irretrievably altered its position provided, however, the writ petitioners has properly explained the delay. In the case before us, we have already expressed that there is no plausible explanation for the delay of 11 years and at the same time, in our view, for the inaction of the writ petitioners, it has now become impossible to decide the real dispute of fixing the liability of return of seized articles for want of appropriate document. We have already pointed out that the person, whose name is appearing in the police register as alleged zimmadar, has also not been made party. As a result we are not in a position to decide whether the allegation of the appellants that J. Banerjee, if at all, took zimma was without any authority of the appellants and that he not even handed over the goods to the appellants are correct or not. Over and above, such disputes cannot be decided without taking oral evidence in the absence of the original the documents. Those decisions, therefore, do not support the writ petitioners in any way. Over and above, such disputes cannot be decided without taking oral evidence in the absence of the original the documents. Those decisions, therefore, do not support the writ petitioners in any way. ( 31 ) WE, thus, find that the learned Single Judge erred in law in entertaining the writ application and passing direction for return of the articles upon the appellants without adjudicating the aforesaid disputed questions of fact. We find that the learned Single Judge proceeded as if it is an admitted case that the appellants were the zimmadar and as such, they were under legal obligation to return those goods. We, therefore, set aside the order passed by the learned Single judge and allow this appeal with costs which we assess at Rs. 10. 000/- for unnecessarily troubling the appellants with a belated writ application without having sufficient document and without impleading even the necessary party. We make it clear that we have not gone into those disputed questions and the rejection of the writ application will not stand in the way of the writ petitioners in approaching the appropriate authority in accordance with law for their remedy.