Research › Search › Judgment

Delhi High Court · body

2013 DIGILAW 1754 (DEL)

Raj Kumar v. Govt. of NCT of Delhi

2013-09-11

RAJIV SAHAI ENDLAW

body2013
JUDGMENT Rajiv Sahai Endlaw, J. 1. The appeal impugns the judgment and decree dated 31st July, 1997 of the Court of the Addl. District Judge, Delhi of dismissal of Suit No.201/1996 filed by the appellant/plaintiff for recovery of Rs.1,28,700/- from the respondents/defendants Commissioner, Food, Supplies and Consumers Affairs of the Govt. of NCT of Delhi. 2. The appeal was admitted for hearing. Upon it being reported that the Trial Court record had been destroyed, the counsel for the appellant/plaintiff was directed to file copies of the said record. The appeal was on 3rd November, 2011 dismissed in default of appearance of the appellant/plaintiff but on application of the appellant/plaintiff was vide order dated 30th April, 2012 restored to its original position. The appellant/plaintiff neither took steps for service of the respondents/defendants nor appeared and the appeal was vide order dated 7th January, 2013 dismissed in default. The appellant/plaintiff again made an application for restoration and notice thereof was served on the respondents/defendants. Vide order dated 4th September, 2013 it was made clear that the appeal will be restored only when the counsels are prepared to address on the appeal itself and the matter posted for the said purpose today. Vide separate order, the appeal has been restored to its original position and the counsels have been heard. 3. The appellant/plaintiff had instituted the suit from which this appeal arises pleading:- (a). that he was the proprietor of M/s. Aggarwal Food Industries having miller wheat license issued by the respondents/defendants; (b). that there was a surprise check in the premises of the appellant/plaintiff on 20th July, 1992 and the license of the appellant/plaintiff was in pursuance thereto illegally cancelled; (c). that the sole ground for carrying out the said surprise inspection was that the appellant/plaintiff had unauthorized stock of wheat meant for Public Distribution System (PDS) outlets; (d). however the respondents/defendants could not find any evidence to substantiate their allegations and vide order dated 11th January, 1993 the license of the appellant/plaintiff was restored but his security deposit in the sum of Rs.5,000/- forfeited on the ground of misbehaving with the inspection team; (e). that the appellant/plaintiff preferred further appeal and vide order dated 17th March, 1994 the order of forfeiture of security deposit also was set aside and the security deposit refunded to the appellant/plaintiff; (f). that the appellant/plaintiff preferred further appeal and vide order dated 17th March, 1994 the order of forfeiture of security deposit also was set aside and the security deposit refunded to the appellant/plaintiff; (f). that the stock of wheat in the premises of the appellant/plaintiff comprising of 191 bags, which the respondents/defendants during the raid on 20th July, 1992 had seized ought to have been disposed of immediately but was not; (g). that the order for disposing of these 191 bags of wheat was passed only on 22nd February, 1993 although the said 191 bags of wheat were taken into custody on 20th July, 1992; (h). that the wheat was not disposed of inspite of the order dated 22nd February, 1993 also and another order dated 21st June, 1993 was passed in this regard; (i). however still nothing was done and yet another order dated 22nd July, 1993 for disposing of the said 191 bags of wheat was passed and ultimately the wheat was so disposed of on 4th November, 1993 for a sum of Rs.13,000/-; (j). that the above said 191 bags of wheat had been disposed of as per the provisions of the Essential Commodities Act, 1955 and the respondents/defendants intentionally and mala fidely delayed disposing of the wheat of the appellant/plaintiff, without any reasonable explanation, causing harm financially as well as mentally to the appellant/plaintiff and the respondents/defendants were liable to suffer for their negligent and tortuous act; that the cost of the wheat at that time was Rs.72,580/- @ Rs.3.80 per kg.; (k). that the appellant/plaintiff was also entitled to the rent of the godown at Rs.2,000/- per month w.e.f. 20th July, 1992 to 4th November, 1993; and, (l). that thus the following amount was stated to be due from the respondents/defendants to the appellant/plaintiff:- “a) Price of the wheat of 191 bags @ Rs.3.80 per kg. Rs.72,580/- b) Rent of godown @ Rs.2000/- per month w.e.f. 20.7.92 to 4.11.93 Rs.30,000/- c) Interest @ 18% per annum w.e.f.1.8.92 to 15.7.94 on Rs.72,580/- Rs.25,570/- d) Legal notice charges dated 15.4.94 Rs. 550/- Total Rs. 1,28,700/-” 4. The respondents/defendants contested the suit by filing a written statement on the grounds:- (i). that the Civil Court had no jurisdiction as appeal under Section 6 C of the Essential Commodities Act lies before the Financial Commissioner; (ii). that no notice under Section 80 of the CPC had been served; (iii). 550/- Total Rs. 1,28,700/-” 4. The respondents/defendants contested the suit by filing a written statement on the grounds:- (i). that the Civil Court had no jurisdiction as appeal under Section 6 C of the Essential Commodities Act lies before the Financial Commissioner; (ii). that no notice under Section 80 of the CPC had been served; (iii). that the suit was filed with the mala fide motive of blackmailing honest officials of the respondents/defendants; (iv). that the stock of 191 bags of wheat was legally seized and disposed of as per the provisions of the Essential Commodities Act; (v). denying that the respondents/defendants intentionally or mala fidely delayed disposing of wheat causing any harm to the appellant/plaintiff; (vi). denying that the cost of the wheat was @ Rs.3.80 per kg. or that the appellant/plaintiff was entitled to rent of the godown; (vii). that the suit was not maintainable owing to Section 15 of the Essential Commodities Act protecting the actions taken under the Act; (viii). that the premises of the appellant/plaintiff were checked/raided on 20th July, 1992 on the basis of secret information that wheat meant for PDS outlets had come directly from the FCI godown at Narela to the premises of the appellant/plaintiff; (ix). that the appellant/plaintiff delayed the visiting team to carry out the inspection and inspection was carried out subsequently by breaking open the locks of the premises; (x). that during the inspection 31 bags of wheat with the marking of fair price shops were found in the premises of the appellant/plaintiff and the stock of wheat of the appellant/plaintiff was found short by 12.75 quintals; (xi). in view of the aforesaid it was felt that the appellant/plaintiff had contravened the provisions of Delhi Wheat (Licensing & Control) Order, 1988 and the license of the appellant/plaintiff was cancelled and 191 bags of wheat were seized and placed under the superdari of one Shri Ram Kumar; and, (xii). that the sale proceeds of Rs.13,000/- of the wheat were deposited with the District Nazir on 4th November, 1993 itself. 5. The appellant/plaintiff filed a replication controverting the contents of the written statement and reiterating the contents of the plaint. 6. On the pleadings aforesaid of the parties, the following issues were framed in the suit:- “1. Whether the plaintiff is entitled to claim the suit amount from the defendant? OPP 2. 5. The appellant/plaintiff filed a replication controverting the contents of the written statement and reiterating the contents of the plaint. 6. On the pleadings aforesaid of the parties, the following issues were framed in the suit:- “1. Whether the plaintiff is entitled to claim the suit amount from the defendant? OPP 2. Whether the plaintiff is entitled to claim interest as alleged in the plaint, if so at what rate and for what period? OPP 3. Whether this court has no jurisdiction to try the suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of the necessary parties? OPD” 7. The learned Addl. District Judge in the impugned judgment has found/observed/held: (A). that Section 15(1) of the Essential Commodities Act barred a suit, prosecution or other legal proceedings against any person for anything done in good faith or intended to be done in pursuance to any order made under Section 3 of the Act; similarly Section 15(2) barred any suit or other legal proceedings against the Government for any damage caused or likely to be caused by anything which was done in good faith or intended to be done in pursuance to any order made under Section 3 of the Act. (B). the question thus for determination was whether the action of the officials of the respondents/defendants qua the premises and goods being wheat of the appellant/plaintiff was in good faith and in pursuance of an order under Section 3 of the Act. (C). that it was not in dispute that the raid conducted at the premises of the appellant/plaintiff on 20th July, 1992 was to see if the provisions of Delhi Wheat (Licensing & Control) Order, 1988 issued under Section 3 of the Act was violated or not; (D). that bags of wheat with the marking of fair price shop were indeed found in the premises of the appellant/plaintiff and the stock of wheat of the appellant/plaintiff was also found to be short by 12.75 quintals; (E). that it could not be said that any official of the respondents/defendants had not acted in good faith; (F). that the very fact that the license of the appellant/plaintiff was restored and his security deposit also refunded showed that everything was done in good faith and without mala fide intention; (G). that it could not be said that any official of the respondents/defendants had not acted in good faith; (F). that the very fact that the license of the appellant/plaintiff was restored and his security deposit also refunded showed that everything was done in good faith and without mala fide intention; (G). that even with respect to disposal of wheat it could not be said that the officials of the respondents/defendants did not act in good faith; (H). that it was in evidence that the appellant/plaintiff was present at the time of auction also; and, (I). that the suit was therefore barred by Section 15 of the Act; (J). that the issues No.4&5 were not pressed by the respondents/defendants. 8. The counsel for the appellant/plaintiff has drawn attention to Section 6A of the Act titled Confiscation of Essential Commodity, particularly to sub-Section (2) thereof which provides for sale, at the controlled price if any fixed for such essential commodity or where no such price is fixed by public auction or through fair price shop, of seized essential commodities which in the opinion of the Collector is subject to speedy and natural decay and has contended that there was a long delay from 20th July, 1992 when the wheat of the appellant/plaintiff was seized by the respondents/defendants till 4th November, 1993 when the same was finally sold and the appellant/plaintiff has suffered on account of such delay on the part of the respondents/defendants and is liable to be compensated there-for. On enquiry it is argued that the price of the wheat on the date of seizure i.e. 20th July, 1992 was Rs.3.80 per kg. but was much lower when the wheat was ultimately sold on 4th November, 1993. On further enquiry as to on what basis the godown rent has been claimed it is contended that the respondents had in seizure sealed the godown of the appellant/plaintiff where the wheat was stored and thus the appellant/plaintiff was deprived of use also of the said godown and is entitled to rent thereof; 9. I have enquired from the appellant/plaintiff whether wheat can be said to be subject to speedy and natural decay, for it to be said that the respondents/defendants should have sold it immediately after 20th July, 1992 and if so when and how soon. 10. No answer has been forthcoming. 11. I have enquired from the appellant/plaintiff whether wheat can be said to be subject to speedy and natural decay, for it to be said that the respondents/defendants should have sold it immediately after 20th July, 1992 and if so when and how soon. 10. No answer has been forthcoming. 11. I have yet further enquired from the counsel for the appellant/plaintiff as to what were the rules for such sale, how much time it should have ordinarily taken and whether there was any control price of the wheat at the relevant time in as much as if it was so, the sale could be at such controlled price only and the market price claimed of Rs.3.80 per kg. would have no relevance. 12. The counsel for the appellant/plaintiff save for stating that the controlled price would be much higher again has no answer. 13. It has also been enquired from the counsel for the appellant/plaintiff as to what is the evidence of the rate of wheat on 20th July, 1992 and on 4th November, 1993. 14. I am informed that there is no evidence. 15. It has also been enquired as to what the shelf life of wheat is, whether it can be stored for a year or two years. 16. Again nothing is informed. 17. The counsel for the appellant/plaintiff relies on S.D. Sharma Vs. Thakorlal Chhaganlal (1978) XIX Gujarat Law Reporter 332 and on The State of Gujarat Vs. M/s. Janta Pauva Factory AIR 1983 Gujarat 64. 18. Per contra, the counsel for the respondents/defendants has contended that the respondents/defendants in their written statement have explained the facts and circumstances in which the premises of the appellant/plaintiff were raided and from which it cannot be said that the actions of the respondents/defendants in seizing the goods were not bona fide. Attention is next invited to the order dated 22nd June, 1993 in the appeal filed by the appellant/plaintiff for refund of security deposit recording that the appellant/plaintiff had not been appearing in the appeal for the past three hearings and thus did not appear to be interested in the matter. Attention is next invited to the order dated 22nd June, 1993 in the appeal filed by the appellant/plaintiff for refund of security deposit recording that the appellant/plaintiff had not been appearing in the appeal for the past three hearings and thus did not appear to be interested in the matter. Attention is next invited to Section 3(22) of the General Clauses Act, 1897 defining a thing to be deemed to have been done in good faith where it is done honestly, whether it is done negligently or not and it is contended that the delay if any in disposal of the wheat can at best be as a result of negligence but no case of the same being not honest or being malicious is made out. Reference without citing is made to (1977) 9 Lawyer 74 (Delhi), S.D. Sharma supra and to (1992) 1 Raj LR 625 in the AIR Manual 6th Edition Volume 22 page 148. 19. The counsel for the appellant/defendant in rejoinder has reiterated her case. 20. The order dated 22nd February, 1993 supra of disposal of the said goods records that since the finalization of confiscation proceedings required detailed examination, pending the same, wheat which was essential commodity and perishable in nature be disposed of through PDS and the sale proceeds be deposited in the Government treasury. The subsequent order dated 21st June, 1993 supra records that on inspection, 52 to 55 out of 191 bags were found to be not fit for human consumption and reiterates for immediate steps for disposal of the remaining bags through the PDS. 21. A perusal of the examination-in-chief of the appellant/plaintiff shows that the appellant/plaintiff, except for deposing that the price of wheat on 20th July, 1992 was Rs.3.80 per quintal and that he had paid rent of the godown @ Rs.2,000/- per month to the owner thereof till the month of November, 1993, did not even depose at to what was the rate of wheat on the date of the sale and did not furnish any proof of having paid the rent of the godown to anyone. The officer of the respondents/defendants appearing as a witness deposed that the appellant/plaintiff had not preferred any appeal against the order dated 22nd February, 1993 of sale of wheat through PDS and the wheat bags were auctioned for a sum of Rs.13,000/-. 22. The officer of the respondents/defendants appearing as a witness deposed that the appellant/plaintiff had not preferred any appeal against the order dated 22nd February, 1993 of sale of wheat through PDS and the wheat bags were auctioned for a sum of Rs.13,000/-. 22. The order dated 22nd July, 1993 supra records that wheat was not lifted by the FPS holders of the area on the ground that the same could not be sold through PDS and that due to heavy rains and leakage in the roof, the whole stock of wheat degraded and water had filled in the godown and accordingly directed sale thereof by auction. 23. The record also contains a letter dated 1st March, 1993 of the appellant/plaintiff for return of the seized wheat to him. The same does not contain reference to any earlier letter which may have been written by the appellant/plaintiff in this regard. 24. Neither the pleadings nor the material on record shows any case of dishonesty on the part of the respondents/defendants or any of their officials in seizure of the wheat or not taking steps for disposal thereof. Mention in this context may be made of Shambhu Dayal Agarwala Vs. State of West Bengal (1990) 3 SCC 549 laying down that the seized goods cannot during the pendency of the proceedings under Section 6A and Section 6E of the Act be released to the owner thereof and can only be sold. It thus appears that during pendency till 11th January, 1993 of the challenge by the appellant/plaintiff to the seizure order, there was no question of any sale or disposal thereof. The appellant/plaintiff is also not found to have made any request for the same. The appellant/plaintiff also thereafter did not seek release thereof. In the normal course, the appellant/plaintiff, upon the order dated 11th January, 1993 of restoration of his license being made, ought to have applied for release of the goods to him. The outcome of the confiscation proceedings under Section 6A is not disclosed. Till the outcome of the confiscation proceedings is known, the entitlement of the appellant/plaintiff to the sale proceeds also cannot be known and without which entitlement being established the question of the appellant/plaintiff suffering any loss from the delay even if any in sale is not made out. 25. Till the outcome of the confiscation proceedings is known, the entitlement of the appellant/plaintiff to the sale proceeds also cannot be known and without which entitlement being established the question of the appellant/plaintiff suffering any loss from the delay even if any in sale is not made out. 25. Section 6A(2) as aforesaid permits disposal of the seized goods either by sale at controlled price or by public auction or by sale through fair price shop at the price fixed by the Central or the State Government. When the respondents/defendants are entitled to sell the goods through the fair price shops, the question of the appellant/plaintiff being entitled to compensation even if any on the basis of the market rate of rent as is claimed, does not arise. 26. Thus whichever way one looks at, there is no merit in the appeal. The same is resultantly dismissed; however in the facts no costs. Decree sheet be drawn up.