Kerala High Court
M.V.Thomas vs The State Of Kerala on 26 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936
OP(C).No. 1418 of 2011 (O)
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[IN C.M.A.NO.110/2010 DATED 26-02-2011 OF IIIRD ADDL.DISTRICT COURT,
KOLLAM ]
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PETITIONER:
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M.V.THOMAS, AGED 60 YEARS,
S/O.M.D.VARGHESE, MANAGING DIRECTOR,
M/S.M.V.THOMAS & M.J THOMAS, RICE MERCHANTS,
MARKET ROAD, CHANGANASSERY, KOTTAYAM - 686 101.
BY ADVS.SRI.V.JAYAPRADEEP,
SMT.SADHANA KUMARI ESWARI,
SMT.V.V.RISANI,
SRI.SANEESH KUNJUKUNJU.
RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF CIVIL SUPPLIES, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DISTRICT COLLECTOR,
KOLLAM - 691 013.
3. THE DISTRICT SUPPLY OFFICER,
KOLLAM - 691 001.
4. THE DISTRICT SUPPLY OFFICER,
KOTTAYAM - 686 002.
BY GOVERNMENT PLEADER SRI. JIBU.P.THOMAS.
THIS O.P (CIVIL) HAVING BEEN FINALLY HEARD ON
10-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
O.P.(C).NO.1418/2011 - O:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: THE COPY OF THE FOOD GRAINS DEALER'S LICENSE NO.510/79 OF
THE PETITIONER.
EXT.P.2: THE COPY OF THE CHALAN DTD. 29/04/10 SHOWING THE PAYMENT OF
FEE.
EXT.P.3: THE COPY OF THE COVERING LETTER TO THE APPLICATION
DTD. 29/04/10.
EXT.P.4: THE COPY OF THE PETITION TO THE DISTRICT COLLECTOR,
KOTTAYAM DTD. 21/05/2010.
EXT.P.5: THE COPY OF THE REPRESENTATION DTD. 23/06/10 TO R3.
EXT.P.6: THE COPY OF THE JUDGMENT IN W.P.(C).35562/10.
EXT.P.7: THE COPY OF THE TAX INVOICE C-FORM DTD. 18/06/10.
EXT.P.8: THE COPY OF THE COMMERCIAL TAX INVOICE.
EXT.P.9: THE COPY OF THE MAHAZAR PREPARED BY R.3.
EXT.P.10: THE COPY OF THE REPLY DTD. 16.07/10.
EXT.P.11: THE COPY OF THE ORDER DTD. 20/08/2010 OF R2.
EXT.P.12: THE COPY OF THE JUDGMENT IN C.M.A. 110/10 DTD. 26/02/11.
EXT.P.13: THE COPY OF THE NOTICE DTD. 15/07/2013 OF THE 4TH
RESPONDENT.
EXT.P.14: THE COPY OF THE PETITIONER'S REQUEST DTD. 23/07/2013 TO THE
4TH RESPONDENT ALONG WITH ITS POSTAL RECEIPT
DTD. 23/07/2013.
RESPONDENTS' EXHIBITS:
EXT.R4.(a): TRUE COPY OF THE RENEWAL APPLICATION DTD. 24/08/2009
SUBMITTED BY THE PETITIONER.
EXT.R4.(b): TRUE COPY OF THE SHOW CAUSE NOTICE DTD. 15/07/2013.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
K.HARILAL, J.
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O.P.C.No.1418 of 2011
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Dated this the 10th day of July, 2014
J U D G M E N T
The petitioner is the appellant in C.M.A.No.110 of 2010 on the files of the III Additional District Judge, Kollam. The above appeal was filed against the order passed by the District Collector, Kollam in proceedings No.C.S.10- 2609/2010 dated 20.08.2010 passed under Sec. 6A of the Essential Commodities Act, 1955 against the petitioner. As per the said order, the District Collector confiscated 138 bags of rice belonged to the petitioner on a finding that the petitioner has violated the provisions under Sec.3 of the Essential Commodities Act, 1955 and the corresponding relevant provision under the Kerala Food Grain Dealers Licence Act, 1967.
2. The petitioner claims that he is a reputed rice merchant at Changanassery, for the last 35 years and he is conducting business under the name and style O.P.C.No.1418 of 2011 2 M/s.M.V.Thomas and M.J.Thomas. He purchased 138 bags of Jaya rice from Sri.Ramalngeswara Rice Mill, Kutukuluru, Andhra Pradesh and the same was brought to Kollam Railway goods shed by train on 21/06/2010. Commercial tax was paid and it was transported from there to Changanassery as per delivery notes No.3367019 and 3367020 of the Assistant Commissioner, Commercial Tax, Kollam. The District Supply Officer, Kollam along with the Taluk Supply Officer, Rationing Inspector and other officials of Sales Tax Intelligence Department and Legal Metrology Department inspected the lorry bearing No.KL5-4869 on 21/06/2010 at 3 p.m. at Chandanathope, Kollam - Chencottah road and seized 138 bags of rice from the lorry. The article was seized as the driver of the vehicle failed to produce the licence as per the Kerala Food Grain Dealers Licencing Order 1967 and the licence as per Sec.3 of the Essential Commodities Act, 1955. The matter was reported to the District Collector by the authority and the District O.P.C.No.1418 of 2011 3 Collector after issuing show cause notice to the appellant on 25/06/2010 and after considering his explanation and hearing the party, passed the order confiscating the 138 bags of rice as per Sec.6A of the Essential Commodities Act. Feeling aggrieved, the petitioner preferred the above appeal before the District Court.
3. After re-appreciating the evidence on record and hearing the petitioner, the District Court passed the above order confirming the confiscation order passed by the District Collector under Sec.6A of the Essential Commodities Act. The legality and propriety of the findings under which the confiscation order was confirmed are under challenge in this original petition.
4. The learned counsel for the petitioner advanced arguments challenging the findings of the court below. According to the learned counsel, Exts.P12 and P13 orders passed by the authorities below are highly illegal and unsustainable. The court below failed to consider the point O.P.C.No.1418 of 2011 4 that, after the seizure of the rice, the petitioner's licence was renewed with retrospective effect. The petitioner's original licence was expired in the year 2003 and thereafter, the same was not renewed upto 2010. But, on 29/04/2010, an application for renewal was filed before the competent authority with challan showing the remittance of entire arrear of fee for the defaulted period of 8 years. Subsequently, the licence was renewed upto 31/03/2011. It is argued that in view of remittance of arrear of fee for the last 8 years, the renewal of licence shall be deemed to be effected with retrospective effect from 2003 onwards. If that be so, at the relevant time of seizure, the petitioner was having the required licence to transport the rice. The learned counsel cited O N G C Ltd. v. Commissioner of Customs, Mumbai (2006 (7) SCC 403). Thus, the appellate authority miserably failed to consider the question in controversy whether the petitioner had licence to transport rice at the relevant time, in its correct O.P.C.No.1418 of 2011 5 perspective.
5. Per contra, the learned Govt. Pleader advanced arguments to justify the findings in the order passed by the appellate authority as well as the original authority. The learned Govt. Pleader further drew my attention to the counter affidavit filed by the 4th respondent and submits that, after the seizure of the rice on 21/06/2010, the petitioner had submitted an application with a previous date of 24/08/2009; but remitted the required fee for renewal only on 27/12/2010. So, the application for renewal was accepted only on 27/12/2010 and thereafter, the proceedings for renewal of licence started in order. In support of his argument, he drew my attention to Ext.R4(a) produced along with the counter affidavit. It is further submitted that as per Ext.R4(a) though the application was dated 24/08/2009, the same was submitted on 09/02/2011 only before the Taluk Supply Officer, Changanassery and the same was forwarded to the District Supply Officer and O.P.C.No.1418 of 2011 6 it was received there only on 10/02/2011. It is true that the renewed licence was issued on 29/12/2010 and renewed up to 31/03/2011. After the issuance of renewed licence, the 3rd respondent found that the above application was filed by way of misrepresentation of the date of submission of application. Consequently, Ext.R4(b) show cause notice had been issued to the petitioner seeking explanation as to why the licence shall not be cancelled.
6. In view of the rival contentions advanced at the Bar, as far as this original petition is concerned, the only question to be considered is, whether the petitioner had a valid licence on the date of seizure of the rice on 21/06/2010.
7. Going by the pleadings in this original petition itself, the petitioner admitted that he had a valid licence up to 31/03/2003 only and thereafter, he has not renewed the said licence. According to him, on 29/04/2010, he had filed an application for renewal of the licence after effecting O.P.C.No.1418 of 2011 7 payment of arrear of fees for the last 8 years and he got the renewed licence upto 31/03/2011. The petitioner has no case that he was holding a valid licence on 21/06/2010, the day on which the seizure of the rice was effected. The argument advanced by the learned counsel is that, he has remitted the arrear of fee of the defaulted period of 8 years. Therefore, the renewal shall be deemed to be made with retrospective effect from 2003 onwards. I am unable to countenance the said argument in view of the renewed licence produced by the petitioner.
8. Going by Ext.P1 licence, it is seen that the required challan was remitted on 27/12/2010 only. The learned counsel for the petitioner submits that as per Ext.P2, the renewal fee was remitted on 29/04/2010. It is pertinent to note that Ext.P1 also shows the date 29/04/2010; but according to Ext.P2, he had remitted only 200/- as renewal fee. But, the subsequent remittance on 27/12/2010 shows that he has not remitted the required fee on 29-04-2010 O.P.C.No.1418 of 2011 8 and the balance fee was paid only on 27-12-2010. In short, the application came in order only on 27/12/2010, ie., six months after the seizure. Therefore, I am unable to find that, at the time of seizure, proper application was pending before the competent authority. More importantly, the renewed licence does not show that the licence was renewed with retrospective effect. It shows that the renewed licence was issued on 29/12/2010 and renewed up to 31/03/2011. Thus, it is evident that the renewed licence was valid from 29/12/2010 to 31/03/2011 only. It cannot be held that the licence was renewed with retrospective effect covering the date of seizure of the rice from the petitioner. In short, it can be safely concluded that on the date of seizure, the petitioner has no valid licence. There is no illegality or impropriety in any of the findings under which the appeal has been dismissed.
9. The learned counsel for the petitioner drew my attention to Para 14 of the decision in O N G C Ltd. v. O.P.C.No.1418 of 2011 9 Commissioner of Customs and submits that licences can be renewed with retrospective effect. But, I am unable to accept the said argument in view of the distinctive facts involved in that case. There, the licencee applied for grant of renewal of licence before its expiry and the renewal has been granted with retrospective effect. But, here, application for renewal has been filed 8 years after the expiry of licence and licence has been granted with prospective effect from the date of acceptance of the application in order. Thus, the renewed licence does not cover the day in which the offence was committed. Thus, no way the decision cited would render any help to fortify the argument advanced by the learned counsel.
This original petition is also devoid of merit and dismissed accordingly.
K.HARILAL, JUDGE.
Stu //True copy// P.A to Judge