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2010 DIGILAW 122 (GUJ)

BANSAL BROTHERS v. DEPUTY SECRETARY

2010-03-05

K.A.PUJ

body2010
JUDGMENT K. A. PUJ, J. The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order of the Deputy Secretary dated 14.11.1991 in Appeal No.139/1989 and the order of the Deputy Civil Supplies Officer dated 09.02.1989. The petitioner has prayed for an interim relief restraining the respondents from encashing the bank guarantee furnished by the petitioner on 13.04.1989. 2. Notice was issued by this Court on 27.05.1992 and ad-interim relief was granted in terms of Para 6(B) of the petition. Thereafter, on 09.03.1994, amendment as prayed for by the petitioner was allowed, Rule was issued and ad-interim relief granted earlier was confirmed. The Court has passed further order on 23.11.2009 observing that the bank guarantee furnished by the petitioner has expired and the petition has become infructuous, however, with a view to enable the learned counsel to verify, the matter was adjourned to 01.12.2009. The Court has passed further order on 18.01.2010 recording submission of the learned AGP on the basis of the instruction received from the Civil Supplies Inspector, Jamnagar that the bank guarantee was not renewed. The Court, therefore, made it clear that if by next date of hearing, the renewed bank guarantee was not placed on record, the matter would be dismissed. On 08.02.2010, further order was passed by the Court giving last chance to the petitioner to place renewed bank guarantee on or before 25.02.2010. Accordingly, bank guarantee was got renewed on 24.02.2010 and xerox copy thereof is place on record. 3. In the above background of the matter, the petition was taken up for final hearing. 4. Heard Mr. Mihir Thakore, learned senior counsel appearing with Mr. Pujara, learned advocate for the petitioner and Mr. Nikunt Raval, learned A.G.P. appearing for the respondents. 5. It is the case of the petitioner that on 15.10.1987, a search was conducted at the ship breaking plot and the godown of the petitioner-firm and it was allegedly found that the petitioner was in possession of 94 bottles of Liquefied Petroleum Gas (for short ‘LGP’) and it was alleged that the petitioner did not have the necessary permits, storage licence or permission and, hence, the petitioner had committed breach of Rule 3 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1989 (for short ‘Order, 1981’). The concerned Officer of the Civil Supplies Department took the possession of 94 cylinders of LPG, of which, 60 were filled with Gas, while remaining 34 were empty vide seizure order served on the petitioner. Thereafter on 13.11.1987, show cause notice was issued on the petitioner calling upon him to show cause why the seized cylinders should not be confiscated under Section 6(A) of the Essential Commodities Act, 1955 (for short ‘the Act’). The petitioner gave written application on 18.11.1987 for the release of the goods, which were released by order dated 27.11.1987 on certain conditions. The petitioner gave written reply to the show cause notice on 18.01.1988. The District Supply Officer, however, passed an order dated 09.02.1989 holding that as the LGP was an essential commodities, necessary permission was required to be obtained by the petitioner and the petitioner having not obtained such permission, it has committed violation of Rule 3 of the Order, 1981 and further ordered confiscation under Section 6(A) of the Act. 6. Being aggrieved by the said order, the petitioner preferred Appeal No.139/1989 before the Deputy Secretary to the Government, Civil Supplies Department, Gandhinagar. It was contended in the Appeal that no breach was committed of the provisions of the Order, 1981 and the petitioner-firm was the member of the Gujarat Ship Breakers Association at Bhavnagar and the said association was having its own plant at Bhavnagar. Moreover, the gas in question was not a cooking gas, but gas for industrial purpose and, therefore, not an essential article under the said Order. It was further contended that there was no question of hoardings, black marketing or profiteering motive on the part of the petitioner so as to pass order of confiscation of the entire quantity and the order passed ex-facie shows total non-application of mind and passed by taking into consideration irrelevant and extraneous factors. The said Appeal was disposed of by the Deputy Secretary vide order dated 14.11.1991 and thereby Appeal was dismissed. 7. Being aggrieved by the said order, the petitioner filed present petition before this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 8. Mr. Mihir Thakore, learned senior counsel appearing with Mr. The said Appeal was disposed of by the Deputy Secretary vide order dated 14.11.1991 and thereby Appeal was dismissed. 7. Being aggrieved by the said order, the petitioner filed present petition before this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 8. Mr. Mihir Thakore, learned senior counsel appearing with Mr. Pujara, learned advocate for the petitioner submitted that on 17.03.1986, the Ministry of Petroleum and Natural Gas, Government of India addressed a letter to the President of Gujarat Ship Breakers Association permitting the association to have its own bottling plant for LPG cylinders for the use of Ship Breakers. One of the conditions laid down in the said letter is that the price of the LPG supplied to the association will be at the non-essential industrial bulk rate, which was in turn supplied to the petitioner and the cylinders confiscated therefore were not essential articles as defined under Order, 1981. He has therefore submitted that the said order had no applicability to the LPG cylinders, which were in possession of the petitioner at the ship breaking yard and were used by the petitioner for the purpose of breaking ship, which is an industrial use. Mr. Thakore has further submitted that the impugned action is taken under Clause 3 which has no application to a person, who is using LPG cylinders for the purpose of carrying on his activity/business of ship breaking. Definition of dealer and purchaser under Order, 1981 does not cover the petitioner. He has further submitted that the relevant documents, which were produced before the authorities as well as filed before this Hon'ble Court indicate that the petitioner was in authorized possession of the LPG cylinders. He has therefore submitted that very initiation of action is ex-facie, contrary to provisions to Order, 1981. 9. Affidavit-in-reply is filed on behalf of the respondents. Based on this affidavit, Mr. Nikunt Raval appearing for the respondents has submitted that the seizure order was passed on 15.10.1987 by the District Supply Officer and thereby 34 empty gas cylinders and 60 filled cylinders were taken into possession. He has further submitted that the petitioner is required to get the explosive license to store the gas cylinder as per the Rules. Nikunt Raval appearing for the respondents has submitted that the seizure order was passed on 15.10.1987 by the District Supply Officer and thereby 34 empty gas cylinders and 60 filled cylinders were taken into possession. He has further submitted that the petitioner is required to get the explosive license to store the gas cylinder as per the Rules. Since the petitioner has not obtained such license from the authority, the petitioner has committed breach of Rule and, therefore, prayers made in the present petition could not be granted. He has further submitted that before passing impugned order, a show cause notice was issued on 15.10.1989 directing the petitioner to remain present from 13.11.1987 to 23.11.1987. Even thereafter, so many opportunities were given to the petitioner to file reply to the show cause notice as well as for recording oral statement. He has further submitted that in absence of any satisfactory reply from the petitioner, seizure order was passed, seized articles were released by giving bank guarantee on 13.04.1989, which was to expire on 12.04.1990. The petitioner had not taken necessary steps to renew the said bank guarantee after it got expired. The said bank guarantee was renewed only after this Court has passed order giving last chance to the petitioner. He has further submitted that the petitioner failed to give any satisfactory explanation before the authority or before this Court and, hence, the impugned orders were legal, valid and no inference is called for. He has, therefore, submitted that the petition deserves to be dismissed. 10. Having heard learned counsel appearing for the parties and having gone through the impugned orders passed by the authorities below and having considered the relevant statutory provisions, the Court is of the view that the submissions made on behalf of the petitioner are not capable of persuading this Court to interfere in the orders passed by the authorities below. First submission made on behalf of the petitioner is that LPG cylinders were supplied by the Ministry of Petroleum and Natural Gas, Government of India to the Ship Breakers Association and in turn, the said gas cylinders were supplied to the petitioner. There is no substance in this submission. It is nothing but an after thought. First submission made on behalf of the petitioner is that LPG cylinders were supplied by the Ministry of Petroleum and Natural Gas, Government of India to the Ship Breakers Association and in turn, the said gas cylinders were supplied to the petitioner. There is no substance in this submission. It is nothing but an after thought. Otherwise, very letter dated 17.03.1986, on which, heavy reliance was placed by the petitioner itself contains a condition that until bottling facility of the association are set up, Bharat Petroleum Corporation would supply total quantity of 50 cylinders of the 50 Kg. variety to the association provided that approximately 300 cylinders of this size which are still with the association are returned with the Association before hand. In the letter dated August 31, 1987 written by the Ship Breakers Association to the District Superintendent of Police, Jamnagar, it is stated that the vehicle carried LPG cylinders of Gujarat Ship Breakers Association which has its own LPG Bottling Plants at Odarka village in Bhavnagar District. Before establishing this bottling plant, the condition precedent was to return 300 cylinders, which were lying with the association. If the association would not have those cylinders with them, there is no question of supplying the said cylinders to the petitioner. From the fact that 94 cylinders were found during the course of search operation itself indicates that they were illegally acquired. 11. There is no much force in the submission of the petitioner that Rule 3 of the Order of 1981 is not applicable to the petitioner as the petitioner is not a dealer. The petitioner was having 94 cylinders in its godown. There was no evidence that those cylinders were for its own consumption. Natural presumption would be that the petitioner was illegally carrying on business activity in sale and purchase of gas cylinders. Even otherwise, the authorities are empowered to take action against the petitioner under Rule 15 of the Order, 1981. It deals with restriction on possession of essential articles. It says that no person shall either by himself or by any person on his behalf store or have in his possession at any time any essential articles mentioned in the Schedule-I in excess of the quantify fixed under any order issued by the Central Government or State Government or under the direction issued by the State Government under this Order. Schedule-I, Part-II deals with articles other than food stuff. Sub Clause (2) says that Petroleum products namely (a) kerosene (b) light diesel oil (c) high speed diesel oil or any other petroleum products which the State Government may by notification in the official gazette specify for the purpose of this Order. It is not the case of the petitioner that it has got permission to store or have in its possession at any time, gas cylinders within quantity fixed. Hence, natural presumption is rightly drawn. Storage of such gas cylinders are therefore contrary to provision of Order 1981 and the authorities are justified in taking action. 12. Even otherwise, there is concurrent finding arrived at by both the authorities below and there is no valid ground for this Court to interfere with the said concurrent findings. The petitioner's own conduct also precludes this Court from exercising its equitable jurisdiction under Articles 226 and 227 of the Constitution of India. 13. For the foregoing reasons, this petition is dismissed. Rule is discharge without any order as to cost. Interim relief stands vacated. (SBS) Petition dismissed.