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2009 DIGILAW 2739 (ALL)

RAPID PRIVATE LTD v. DISTRICT MAGISTRATE, MATHURA

2009-08-03

ASHOK BHUSHAN, PANKAJ MITHAL

body2009
JUDGMENT By the Court.—The petitioner in this petition has challenged the order dated 30.6.2009 passed by Additional Collector (Administration), Mathura confiscating his tanker under the provisions of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) and directing for its auction. He has further prayed for a direction to the respondents not to sell his tanker through public auction. 2. The petitioner is a sole proprietorship firm engaged in transport business. Petitioner’s tanker bearing registration No. HR38M/7957 was said to have been hired by one Suresh Singh for the purpose of transporting furnace oil. When the aforesaid tanker, loaded with furnace oil, was parked in the premises of the aforesaid Suresh Singh, a raid/inspection was conducted by the District Supply Officer and the tanker with other material was seized on 23.10.2008. On the basis of the report of the Supply Inspector dated 20.12.2008 and the letter of the District Supply Officer dated 22.12.2008 a notice under Section 6-A of the Act was issued to the petitioner to show cause why the tanker may not be confiscated. The petitioner, in response, submitted his reply denying his involvement and connection with the illegal activity, if any, of transportation of essential commodities and at the same time requested for release of his tanker on the ground that he is merely a transporter. It is thereafter that the impugned order has been passed. 3. We have heard Sri Rajeev Gupta, learned counsel for the appellant and the learned Standing Counsel and with their consent proposes to decide the writ petition at this stage finally. 4. The only argument advanced on behalf of the appellant is that in view of second proviso to Section 6-A(1) of the Act the petitioner was entitled to release of his vehicle on payment of the market value in lieu of its confiscation. 5. Section 6-A of the Act authorises the Collector to pass an order of confiscation of essential commodity; and package or covering in which such essential commodity is found; and any animal, vehicle, vessel or other conveyance used in carrying such essential commodity in contravention to the provisions of Section 3 of the Act. In view of Section 6-B of the Act such an order of confiscation can be passed after issuance of show cause notice. In view of Section 6-B of the Act such an order of confiscation can be passed after issuance of show cause notice. It further provides that in case of any animal, vehicle or vessel or any other conveyance used for carrying goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay a fine not exceeding the market price as on the date of seizure. The relevant proviso to Section 6-A(1) of the Act is reproduced herein below : "Provided further that in case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance." 6. A plain reading of the aforesaid proviso indicates that it is in three parts. The first part relates to the animal, vehicle, vessel or other conveyance used for carrying goods or passengers for hire. The second part is in respect of the option to pay fine in lieu of confiscation and the third part provides for the amount of fine and the manner of its determination i.e. it should not exceed the market price as on the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance. 7. The first two parts of the above proviso gives an option for the payment of fine in lieu of confiscation of the vehicle. The third part of the proviso is for the purposes of levying the fine which in no case is to exceed the market price prevailing on the date of seizure of the essential commodity sought to be carried in the vehicle. The words "not exceeding the market price at the date of seizure of the essential commodity" used therein are in reference to the determination of fine payable in lieu of confiscation of the vehicle. Thus, it is mandatory under the aforesaid proviso to give the owner of the vehicle an option to pay fine in lieu of its confiscation before passing an order of confiscation. Thus, it is mandatory under the aforesaid proviso to give the owner of the vehicle an option to pay fine in lieu of its confiscation before passing an order of confiscation. This opportunity probably was not given to the petitioner in the instant case, as contended on behalf of the petitioner. The impugned order also does not indicate that any such opportunity was given to the petitioner. On the contrary, it gives opportunity to the petitioner to participate in the auction, an action subsequent to order of confiscation and, as such, is not the same thing, as an option to pay fine in lieu of confiscation which is available prior to passing an order of confiscation and sale by auction. Therefore, the owner of the vehicle is entitle to opportunity to exercise option to pay fine in place of the order of confiscation of vehicle. 8. We are supported in our view by a Division Bench decision of the Andhra Pradesh High Court reported in AIR 1986 AP 82 , G. Subbarama Naildu v. Joint Collector, Chittoor and others where their Lordships dealing with the aforesaid provision of law held that the proviso is abundantly clear that the vehicle need not be confiscated if the owner is prepared to pay fine not exceeding the market price at the date of seizure of the essential commodities. This probably is the intention expressed by the Supreme Court in (1990) 3 SCC 549 , Shambhu Dayal Agarwala v. State of W.B. where it has been observed “the second proviso to sub-section (1) of Section 6-A permits the grant of an option to pay, in lieu of confiscation of any animal, vehicle, vessel or other conveyance, a fine equal to its market price at the date of seizure”. The Apex Court further in (2000) 3 SCC 306 , Dy. Commissioner, Dakshina Kannada District v. Rudolph Fernandes clarified that as the item which is to be confiscated and referred to in the above proviso is the vehicle, therefore the measure of fine payable in lieu of confiscation is relatable to the market price of the vehicle prevailing on the date of seizure of the essential commodity. 9. In view of aforesaid facts and circumstances, we are of the considered opinion that the petitioner is entitled to an option to pay fine in lieu of confiscation of its vehicle. 10. 9. In view of aforesaid facts and circumstances, we are of the considered opinion that the petitioner is entitled to an option to pay fine in lieu of confiscation of its vehicle. 10. We have been informed that so far no date for public auction of the tanker has been fixed. Therefore, we permit the petitioner to make a proper application before the competent authority for giving option to pay fine. The petitioner may move such an application within a period of two weeks from today with an undertaking to pay the fine and, in case it is so moved, the competent authority shall consider the same in accordance with law and shall determine within three weeks thereof the quantum of fine not exceeding the market price of the vehicle which was prevailing as on the date of seizure of the essential commodity sought to be carried by the said vehicle. The petitioner on such intimation of the amount of fine shall deposit the same within a week and, if it is so done, the petitioner’s tanker shall not be put to auction and may be released accordingly. 11. The writ petition, as such, is allowed and a writ in the nature of mandamus is issued to the respondents, accordingly. ————