State Consumer Disputes Redressal Commission
Chief L.P.G Manager (Sales) & Marketing ... vs Shri Pardip Bhattacharjee, Manager ... on 10 February, 2011
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
TRIPURA
Appeal No.F.A.-18/2010
1. The Chief L.P.G. Manager (Sales),
Indian Oil Corporation Ltd. A.O.D.
Cachar Basti, Ulubari,
Gauhati - 781007.
2. The Marketing Officer (LPG Sales),
Indian Oil Corporation Ltd. A.O.D.
Kunjaban Road, Agartala,
West Tripura.
.... ... ... ... Appellants.
Vs
1. Shri Pradip Bhattacharjee,
S/0.Late Rabindra Chandra Bhattacharjee,
Prop. Hotel Longtharai.
Jagannath Bari Road, Agartala.
.... ... ... ... Respondent.
2. The Manager,
M/S. Capital Gas Agency,
L.P.G. Distributor of I.O.C. Ltd.,
L.N.Bari Road, Agartala.
... ... ... ... Pro - Respondents.
PRESENT :
HON'BLE MR.JUSTICE A.B.PAL,
PRESIDENT,
STATE COMMISSION
MR.B.K.SHARMA,IAS (Retd),
MEMBER,
STATE COMMISSION.
1
For the Appellants : Mr.D.B.Sengupta,Sr.Adv.
Mrs.K.Majumder,Adv.
For the Respondent : Mr.A.Gon Choudhury,Adv.
Date of Hearing : 20-01-2011.
Date of delivery of Judgment: 10-02-2011
JUDGMENT
PAL, J, This appeal has arisen from the judgment dated 5-7-2010 rendered by the District Forum, South Tripura, Udaipur in C.C 24 of 2008 directing the appellant (I.O.C. Ltd.) to restore gas connection and return gas cylinder to the respondent.
2. The facts in brief, which are not in dispute, may be noticed first. The respondent herein is the owner of 'Hotel Longtharai'. The first two floors of the hotel building are used for hotel business and the second floor for his residential purpose. His family consists of himself, his wife, one son and his widow mother. He had separate gas connection for domestic and commercial purpose. The commercial consumer No. was 017727. The domestic consumer number in his name was 000270. His brother late Kishore Bhattacharjee had a separate domestic connection No-013603. After the pre mature death of his brother the gas connection was utilized by their widow mother for separate cooking. On 7-8-2007 at about 11-30 a.m. the Marketing Officer of the I.O.C. Ltd., the second appellant herein, raided the hotel premises and seized from the domestic kitchen of the respondent, three L.P.G. cylinders which were issued against the two domestic connections of himself and his deceased brother. No cylinder of the commercial connection was, however, seized. The seized cylinders were taken away and kept in the custody of the said appellant for a long time without any action required by law. No prosecution was launched for alleged violation of any order under the Essential Commodities Act. Neither any report was submitted to the Collector of the district for 2 confiscation of the seized cylinders. On 9-8-2007, two days after the seizure, the respondent addressed a letter to the Marketing Officer requesting him to release the cylinders and resume gas supply as his family was facing serious difficulties. In the said letter he admitted that he was residing in the 2nd floor of the hotel and his kitchen was used for preparing foods for the hotel guests also. He did not, however, admit that domestic cylinders were used for preparing hotel foods. But the request was turned down. The lawyer for the Corporation gave a reply on 1st October, 2007 trying to justify the action taken by the appellant with reference to the provision of the E.C. Act and the liquefied petroleum gas (regulation of supply and distribution) order, 2000 (for short, regulatory order). It has been stated in para-4 of the reply that the seized cylinders were issued against domestic connection but used by the respondent for commercial purpose which amounted to violation of the aforementioned regulatory order. It has been provided in that order that the petroleum gas can not be used for any purpose other than that for which the consumer was registered with the distributor of a Government Oil Company. Clause 13 of the said regulatory order authorizes the central government to empower officers of the corporation not below the rank of sales officer to enter into, search any place and seize gas cylinders and other equipment for discharging his duties in connection with use, storage, etc of L.P.G. if there is reason to believe that there has been contravention of the regulatory order.
3. After waiting for more than five months without any response from the appellant herein the respondent approached the District Forum, West Tripura, Agartala with the complaint for redressal. As the President of the forum expressed his inability to proceed with the case due to his personal relation with the complainant the case was transferred to the District Forum, South Tripura, Udaipur which has rendered the judgment impugned.
34. We have heard learned counsel for the parties.
5. Mr.D.B.Sengupta, learned senior counsel for the appellants, took us through the provisions of section 6-A and section 6-E of the Essential Commodities Act (for short Act) making a submission that only the collector of the district can direct confiscation of the seized commodity if he is satisfied after inspection that there has been a contravention of the order as provided in section 6-A. This power of the collector can be exercised whether or not a prosecution is instituted for contravention of the order issued under section - 3 of the Act. He argued that the consumer forum has no jurisdiction with regard to possession, delivery, disposal, release or distribution of the seized essential commodity pending confiscation under section 6-A. A conjoint reading of the two provisions would show that whether or not a prosecution has been launched in a criminal court for alleged violation of the regulatory order passed under section - 3 of the Act only the collector of the district, and no other forum shall have jurisdiction to deal with any seized essential commodity. Mr.Sengupta further submitted that a proceeding under section-7 of the Act is under process.
6. Per contra, Mr. Gon Choudhury. Learned counsel for the complainant-respondent submitted that as there is no proceeding for confiscation before the collector the question of jurisdiction invoking section 6-E is not at all tenable. According to him a proceeding now after three years under section-7 of the Act is belated, after thought and unsustainable in law.
7. There is no dispute that clause - 13 of the regulatory order empowers the central or the state government to authorize any officer of the government Oil company not below rank of sales officer to enter into and search any place and seize any stock of liquefied petroleum gas or equipment with a view to securing compliance of that order. But this power of the authorized officer is not absolute or end in itself. He can not 4 exercise the power arbitrarily or whimsically at his sweet will. The regulatory order in question has to be read with section 6-A of the Act which enjoins that after every seizure a report shall be submitted to the collector of the district who shall verify the same and decide whether there has been a contravention of the order. Thus, whether or not a prosecution is instituted the collector shall independently decide about the contravention of the order and confiscation under section 6-A of the Act. But this decision can not be taken by the authorized officer who can only seize any stock or equipment and report to the collector. In the case in hand the second appellant, if he is an authorized officer, was duty bound to report to the collector after seizure of the gas cylinders from the kitchen of the respondent. He did not do so. He just took into his possession the cylinders after seizure and kept in his custody for long period of three years without sending any report to the collector or launching any prosecution in a criminal court for alleged violation of the regulatory order. Section 6-E of the Act on which much reliance has been placed by Mr. Sengupta, takes away the jurisdiction of any court, tribunal or other authorities only when essential commodity is seized and pending for confiscation under section 6-A before the collector. But, as we have noticed, there is no confiscation pending before the collector and no proceeding before any criminal court. Therefore, section 6-A can not and has not taken away jurisdiction of the consumer court. The situation is that the second appellant on his own sweet will arbitrarily seized the cylinders and kept the same in his custody without any report to the collector violating thereby the mandate of section 6-A. If such power without any sanction of law is allowed to be exercised the authorized officer can run riot and go on seizing the cylinders of the customers for ulterior purpose without report to the collector to the detriment of the consumers. Therefore, such a position can not be countenanced. That apart, there is no fault for keeping cylinders of both domestic and 5 commercial connection in one kitchen as, admittedly there was no separate kitchen. The question is actual use of the gas for the specific and authorized purpose, not otherwise, which has to be determined by the collector or the court on the basis of evidence to be submitted by the appellant. That has not been done.
8. On question of jurisdiction section 6-E can not be invoked when there is no proceeding for confiscation before the collector or for alleged violation before a criminal court. By illegally retaining in his custody the cylinders which tantamount to an offence and refusing to the respondent supply of gas the appellant committed serious deficiency in service.
9. For the reason aforementioned this appeal being devoid of any merit is hereby dismissed. The judgment impugned is confirmed. The respondent was without any supply of gas for more than three years due to the lapses on the part of the second appellant, the Marketing officer. He is, therefore, liable to pay compensation of Rs.25,000/- (twenty five) thousand to the respondent. The cost of the appeal is Rs.10,000/- (ten thousand) to be paid into the Legal Aid fund of this Commission by the second appellant. The entire amount, both compensation and cost of original and appellate proceeding, shall be paid by that appellant within one month from today. In default the amount will bear interest @ 9% per annum. In addition the appellants shall be liable to be proceeded under section 27 of the Consumer Protection Act for non compliance. The Corporation shall be at liberty to realize the amount from the second appellant.
Appeal allowed.
PRESIDENT MEMBER 6