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2008 DIGILAW 41 (PAT)

Sukhdeo Mahta v. State Of Bihar

2008-01-08

NAVANITI PRASAD SINGH

body2008
Judgment 1. Heard. 2. The petitioner claims to be the owner of a public carrier vehicle, which was seized and in respect whereof a confiscation proceeding was initiated by the District Collector, Nawadah, in terms of Section 6(A) of the Essential Commodities Act. The Collector ultimately found violation of an order made under Essential Commodities Act and thus confiscation of the vehicle. 3. Being aggrieved by the order of confiscation of the vehicle, petitioner filed an appeal before the Sessions Judge, Nawadah. Before the Sessions Judge, Nawadah, a preliminary objection was raised by the learned Special P.P. with regard to the maintainability. This objection having been sustained, the appeal was dismissed as not maintainable holding that a revision in terms of Clause 28 of the Bihar Trade Articles (Licences Unification) Order, 1984 lays to the Commissioner from an order of the Collector and as such the appeal was not maintainable before the Sessions Judge against the order of confiscation passed by the Collector of the district. It is this order (Annexure 8) i.e. in challenge. 4. As this is a pure question of law and this Court does not intend to go into the merit of the matter, the matter is heard for final disposal at the stage of admission itself. 5. I am afraid the order of the learned Sessions Judge is wholly misconceived in law and cannot be sustained. 6. Essential Commodities Act, 1955 was enacted by the Central Government authorizing it under Section 3 to frame Order for regular supply and equitable distribution at fair prices of essential commodities. Under Section 5 of the said Act, the Central Government was empowered to delegate its power under Section 3 to the State Government. Thus, the Central Government and the State Government, subject to delegation, had authority to frame Orders in terms of Section 3 of the Act in the manner as provided in sub-section 5 of Section 3. The order contemplated under Section 3 of the said Act could be with regard to licensing, supply and distribution, control of prices and/or requisitioning stock of essential commodities. In case a person violated and order under Section 3 of the Act, Section 6(A) authorizes the Collector of the district to initiate a confiscation proceeding in respect of essential commodities seized for such alleged violation. In case a person violated and order under Section 3 of the Act, Section 6(A) authorizes the Collector of the district to initiate a confiscation proceeding in respect of essential commodities seized for such alleged violation. These proceedings are to be preceded by a notice as contemplated under Section 6(B) of the Act. The Collector is then to act as a Court and decide the matter. If he finds that any particular order has been violated in respect of the seized goods, he may order its confiscation and while doing so he may order confiscation of the vehicle on which those goods are being carried. This is an order of confiscation, which is based in terms of Section 6(A) of the Act. Section 6(C) of the Act then provides an appeal. The Act, as amended by Bihar Legislature, is provided for an appeal to a judicial authority to be designated by the State Government. These provisions of Section 6(C) were amended by the Special Provision Act, 1981 for a restricted period as mentioned therein, which came to an end in the year 2000. During the period in which the principle Act stood amended in its application by the Special Provision Act, Section 6(C) provided an appeal to the State Government. In Bihar, Food Commissioner was designated as authority to act on behalf of the State Government. Thus during the period in which the Special Provision Act came in force, an appeai, preferred against the order of confiscation as passed by the District Collector, lays to the Food Commissioner, Bihar but the position should restore to an appeal to the judicial authority as provided under Section 6(C) of the Act. In regularisation of restoration of the original position, the State Government then issued a notification being GSR 7, dated 30th October, 2000 in exercise of powers under Section 6(C)(1) of the Act and designated the District & Sessions Judge in their respective jurisdiction to act as a judicial authority in terms of Section 6(C) of the Act. Thus on the date of notification, the appellate authority, from the order of confiscation passed by the District Collector, became the District and Sessions Judges within their respective jurisdictions. 7. Unfortunately, this scheme of the Act was not looked into by the District & Sessions Judge, Nawadah when he passed the impugned order. Thus on the date of notification, the appellate authority, from the order of confiscation passed by the District Collector, became the District and Sessions Judges within their respective jurisdictions. 7. Unfortunately, this scheme of the Act was not looked into by the District & Sessions Judge, Nawadah when he passed the impugned order. He was misled by the wrong submission made by the learned Special P.P. with regard to Clause 28 of the Bihar Trade Articles (Licences Unification) Order, 1984. This Unification Order is a piece of statutory legislation issued by the State Government as a delegatee of the Central Government in terms of Section 5 of the Act read with delegation in terms of Section 3 of the Act. This Unification order deals several matters including licensing. The principle licensing authority is the Collector though for certain contingency, it is the Sub-Divisional Officer. When Clause 28 of the Unification Order, a revision from an order passed by the Collector it specifically refers to an order passed by the Collector under this order. This means that any order passed by the Collector under the Unification Order is revisable by the Divisional Commissioner in terms of Clause 28 of the Unification Order. An order of confiscation is an order in terms of Section 6(A) of the Act and not an order in terms of any provision of the Unification Order. Therefore, once an order of confiscation is passed, which order is not an order under the Unification Order, the provision of the Unification Order does not apply and it is the provision of the principle Act that has to be seized. The principle Act confers power to confiscate in terms of Section 6(A) thereof and it provides remedy against that order of confiscation in terms of Section 6(C). This scheme was not at all appreciated by the learned District & Sessions Judge. 8. I may also mention here that Section 6(C), as it stands, refers the appellate authority to the judicial authority. Obviously, the Divisional Commissioner cannot be termed as a judicial authority and keeping in view of the same the State Government has notified the senior most judicial officer of the district being the District Judge to be the judicial authority in terms of Section 6(C) of the Act. 9. Obviously, the Divisional Commissioner cannot be termed as a judicial authority and keeping in view of the same the State Government has notified the senior most judicial officer of the district being the District Judge to be the judicial authority in terms of Section 6(C) of the Act. 9. I may also point out here that simultaneously while initiating a confiscation proceeding in terms of Section 6(A) of the E.C. Act, the Collector as authority to initiate proceeding for cancellation of license or suspension thereof in terms of Clause 11 of the Unification Order though the jurisdiction is exercised by the Collector of the district. In both cases the jurisdictions are different and distinct. 10. As regards confiscation, the jurisdiction is being exercised in terms of the principle Act i.e. Section 6(A) of the E.C. Act and as regard cancellation of license, the jurisdiction is being exercised with reference to Clause 11 of the Unification Order. Against both these orders, remedies are provided in the respect legislation, which have to be followed. 11. In that view of the matter, the order of the District Judge, Nawadah, cannot be sustained and is accordingly set aside. He is directed to restore the appeal to its file and hear the matter on merit after condoning the delay, as prayed for on behalf of the petitioner, who is the appellant before the District Judge. 12. The District Judge being the appellate authority would also have jurisdiction to entertain and hear any application for any interim relief that the petitioner may seek with regard to release of the vehicle, in question, which is a commercial commodity and would deteriorate by keeping it idle and would also be irreparable loss to the petitioner in the event the appeal is allowed and would dispose of such an application expeditiously preferably within a month of fifing of such application. 13. With the above observation and direction this writ petition is allowed.