Kerala High Court
Alliance Grain Products Pvt Ltd vs State Of Kerala on 16 April, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938
WP(C).No. 30 of 2009 (C)
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PETITIONER :
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ALLIANCE GRAIN PRODUCTS PVT LTD.,
PALATHARA, THATTAMALA, KOLLAM-20,
REPRESENTED BY, ITS MANAGER, AMEENUDDIN.
BY ADVS.SRI.BECHU KURIAN THOMAS
SMT.INDU SUSAN JACOB
SMT.NISHA JOHN
SRI.NAVEEN SHERRY LUKOSE
SRI.PAUL JACOB (P)
SRI.ROSHEN.D.ALEXANDER
RESPONDENTS :
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1. STATE OF KERALA, REPRESENTED BY
SECRETARY, DEPARTMENT OF FOOD & CIVIL SUPPLIES,
GOVT.SECRETARIAT, THIRUVANANTHAPURAM.
2. DISTRICT COLLECTOR, COLLECTORATE,
KOLLAM.
3. DEPUTY CONTROLLER OF RATIONING (SOUTH ZONE),
CIVIL SUPPLIES OFFICE, KOLLAM.
BY GOVERNMENT PLEADER SMT. RAJI T. BHASKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 30 of 2009
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE LETTER DT 17/1/2008 ISSUED BY FCI,
KOTTAYAM TO THE SUPPLY OFFICER, KOTTAYAM.
P1(A): COPY OF THE PROCEEDINGS OF THE DISTRICT
COLLECTOR, ALAPPUZHA DT 28/4/93.
P1(B): COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR,
ALAPPUZHA DT 19/2/2008.
P2: COPY OF THE MAHAZAR DT 11/4/2008 ISSUED TO THE
PETITIONER.
P3: COPY OF THE STATEMENT ISSUED BY PETITIONER'S
ACCOUNTANT.
P4: COPY OF THE STATEMENT OF PURCHASES FROM 1/03/2008 TO
10/4/2008.
P5: COPY OF THE APPLICATION D T 12/4/2008.
P5(A): COPY OF THE NOTICE PRE-DATED AS 16/4/2008 ISSUED BY
THE DISTRICT COLLECTOR UNDER SECTION 6(B) OF
ESSENTIAL COMMODITIES ACT.
P6: COPY OF THE ORDER DT 16/4/2008 ISSUED BY THE
DISTRICT COLLECTOR NO. C. S10-1594/08.
P7: COPY OF THE JUDGMENT DT 29/4/2008 IN WPC 13814/08
BEFORE THIS HONOURABLE COURT
P8: COPY OF THE ARGUMENT NOTE DT 12/5/2008 SUBMITTED
BEFORE THE DISTRICT COLLECTOR.
P8(A): COPY OF THE BILLS DT 11/4/2008 ISSUED BY THASNEEM
TRADERS.
P8(B): COPY OF THE MONTHLY RETURN FILED BY THASNEEM
TRADERS.
P9: COPY OF THE ORDER DT 18/6/2008 NO CS 10.1594/2008
ISSUED BY THE DISTRICT COLLECTOR.
P10: COPY OF THE APPEAL FILED BEFORE THE R1 RESPONDENT
UNDER SECTION 6C OF THE ESSENTIAL COMMODITIES ACT.
WP(C).No. 30 of 2009
P11: COPY OF THE JUDGMENT DT 8/8/2008 IN WPC 23923/2008.
P12: COPY OF THE LETTER DT 9/9/2008 ISSUED BY THE R1.
P13: COPY OF THE ORDER DT 31/10/2008 NO. G.O.(RT)
383/2008/F&CSD ISSUED BY THE R1.
P14: COPY OF THE RECEIPT FOR RENEWAL OF REGISTRATION
UNDER KVAT.
P14(A): COPY OF THE CERTIFICATE ISSUED BY THASNEEM
TRADERS DT 20/11/2008.
P15: COPY OF THE ORDER OF THE R1 DT 31/10/2008 IN GO(RT)
387/2008F&CSD RELATING TO RUBY FLOUR MILL.
P16: COPY OF THE INSPECTION REPORT DT 21/11/2008 FILED BY
THE TALUK SUPPLY OFFICER IN RESPECT OF RUBY FLOUR
MILLS.
P17: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DT
16/4/2008 FILE IN CMP P2400/2008.
P18: COPY OF THE REGISTRATION CERTIFICARE ISSUED UNDER
THE KVAT TO THASLEEM TRADERS.
P19: COPY OF THE E-CHALLAN FOR RENEWAL OF REGISTRATION
ISSUED UNDER THE KVAT TO THASLEEM TRADERS.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
DEVAN RAMACHANDRAN, J.
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W.P.(C)No.30 of 2009
==============================
Dated this, the 20th day of March 2017.
J U D G M E N T
The petitioner claims to be the manufacturer of wheat products and to have been registered as a dealer under the Kerala Food Grains Dealers Licensing Order, 1967 (hereinafter referred to as the 'Licensing Order' for short)
2. The petitioner is impugning Ext.P13 order, which is the final order in the hierarchy of Authorities, finding that certain stock of wheat found in his premises was unauthorizedly retained by him and consequently confiscating it under the provisions of the Licensing Order. The petitioner impugns Ext.P13 as being illegal and unlawful and to have been issued without following the mandatory and imperative provisions of law, specifically the prescriptions under the Licensing Order.
3. I have heard the learned counsel for the petitioner Shri.Paul Jacob and the learned Government Pleader appearing for the respondents. W.P.(C)No.30 of 2009 : 2 :
4. I have examined Ext.P13 order which is impugned in this writ petition. The only reason why the said order imputes transgression of the Licensing Order by the petitioner is that 230.75 Quintals of wheat was found in the premises of the petitioner and that 470 bags of wheat, having the emblem of FCI stamped on it, was found loaded in a truck in the vicinity of the petitioner's business. On these allegations, a suspicion was gathered against the petitioner that he was retaining more stock of wheat than he was authorized to.
5. The petitioner assails all these allegations on two broad grounds. The first he says that even under the terms of his licence, he is authorized to retain and stock 3600 tonnes of wheat and that there is nothing in Ext.P13 to show that, even accounting for the quantity of wheat alleged to have been found in his premises, the total will be above the authorized limit. Secondly he says that the 230.75 Quintals of wheat and 470 bags of wheat found in the trucks were purchased by him from a company by name M/s.Thasneem Traders, Kilimanoor. However, in W.P.(C)No.30 of 2009 : 3 : Ext.P13 these assertions of the petitioner was disregarded holding that there are no documents produced by the petitioner to show that the aforementioned M/s.Thasneem Traders was even functioning during the relevant period.
6. A scrutiny of Ext.P13 would show that it is founded on an alleged inspection on the basis of enquiry/verification said to have been conducted by the Authorities under the Licensing Order relating to the functioning of M/s.Thasneem Traders. However, unfortunately, I do not see from the said order that the petitioner was kept informed of any such verification or that he was told that M/s.Thasneem Traders was not functioning. This is pertinent because the petitioner has produced certain documents before this Court to show that at the relevant time M/s.Thasneem Traders was, in fact, operational and functioning and that they had issued the bills relating to the alleged excess of stock found with the petitioner. However, the competent Authority while issuing Ext.13 order, has chosen not to consider this because, allegedly, a verification has been done regarding W.P.(C)No.30 of 2009 : 4 : the functioning of M/s.Thasneem Traders behind the petitioner's back. I do not think that this was the appropriate method to have been adopted by the competent Authority because while acting under the mandate of the Licensing Order, he acts as a quasi- judicial functionary and is therefore required to act under the prescriptions of law without exception.
7. Coming to the assertions of the petitioner, he has produced Exts.P14 which is the certificate of Registration of M/s.Thasneem Traders under the provisions of Kerala Value Added Tax Rules for the year 2007-08, being the period during which the inspection was conducted in the petitioner's business premises. He has also produced Ext.P19, which is the receipt issued by the Department of Commercial Taxes, indicating that the certificate of Registration of M/s.Thasneem Traders has been renewed even as late as 2014-15. Essentially thus, the petitioner maintains that M/s.Thasneem Traders has been functioning through out, even as late as in the year 2014-2015. I do not see that these documents have been W.P.(C)No.30 of 2009 : 5 : considered by the appropriate Authorities while issuing Ext.P13. I say this also for an added reason that I see that in Ext.P15 M/s.Thasneem Traders has certified that Ext.P8(a) bills, which covers the alleged excess quantity found in the petitioner's premises, were in fact issued by them. I fail to understand why the Authority while issuing Ext.P13 order has, therefore, said that the petitioner has produced no valid documents to show that M/s.Thasneem Traders is functioning.
8. The petitioner also asserts that the order is vitiated for another reason. He says that even though the sacks which contained the wheat had the FCI emblem imprinted on it, that was not sufficient to enter into a presumption that the wheat was procured from the FCI because such sacks are freely available in the market and the definitive method of finding whether that the wheat, found in the sacks, were issued by the FCI was to have identified the flap of FCI that would have been available inside the sacks. This was not, according to the petitioner, verified by the Authorities and that therefore, W.P.(C)No.30 of 2009 : 6 : the best evidence that could have been used in his favour was not even considered by the Authority while issuing Ext.P13.
9. I find sufficient force in the submissions of the petitioner. I do not see that Ext.P13 order has been issued taking into account all the relevant factors and that I see that it has proceeded on a virtual presumption, based on an alleged internal verification without notice to the petitioner, that M/s.Thasneem Traders was not functioning during the relevant period. I do not think that this presumption could have been validly carried, in view of the various documents that are mentioned above.
10. In such circumstances, I have no other option but to quash Ext.P13, however, reserving liberty to the competent Secretary of the Government to reconsider the appeal of the petitioner adverting to the various documents mentioned in this writ petition as also the submission made by him relating to the flap of the FCI which would have been found inside the sacks to dispel the suspicion that they were issued by the FCI. This W.P.(C)No.30 of 2009 : 7 : exercise shall be completed by the competent Secretary after affording an opportunity of being heard to the petitioner and, if required, taking such evidence and would be necessary including statements from M/s.Thasneem Traders, as expeditiously as possible but not later than 3 months from the date of receipt of a copy of this judgment.
Writ petition is thus ordered. In the facts and circumstances of this case, I make no order as to costs and the parties are directed to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
Bb/21/03/2017 [True copy] P.A to Judge