Calcutta High Court (Appellete Side)
M/S. Krishna Traders & Ors vs The State Of West Bengal & Ors on 5 May, 2025
05.05.2025
DL-10
Ali
ct. no.24
WPA 3193 of 2024
M/s. Krishna Traders & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Sagar Bandyopadhyay, Sr. Adv.
Mr. Debabrata Saha Roy, Sr. Adv.,
Mr. Arijit Chakraborty,
Mr. Nilotpal Chowdhury,
Mr. Prabir Bera,
Mr. Deepak Sharma,
Mr. S. Singh
....for the petitioners.
Mr. Suman Sengupta, Sr. Adv.
Mr. Sambuddha Dutta,
Mr. Sanatan Panja
...... for the State.
Mr. Suman Sengupta, learned counsel appearing
on behalf of the State raised the point of
maintainability of this writ petition.
On brief notes, these writ petitions are preferred
challenging an order passed by learned Additional
District & Sessions Judge, Fast Track, 1st Court,
Basirhat, 24-Parganas (North) in a criminal appeals
under Section 6C of Essential Commodities Act, 1955
arising out of an order of confiscation of Essential
Commodity passed by Sub Divisional Officer, Basirhat.
It is the contentions of Mr. Sengupta that the
impugned order was passed in a criminal appeal thus
the writ petitions under Article 226 of Constitution of
India is not maintainable.
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It is the further contentions of Mr. Sengupta that
the learned Additional District & Sessions Judge, Fast
Track, 1st Court, Basirhat 24-Parganas (North) is a
judicial authority against the order of the Judicial
Officer in a criminal appeal either under Article 227 of
the Constitution of India or Section 482 of the CrPC is
maintainable. In this case, the order has been passed
a Judicial Officer, against the said order this writ Court
holding jurisdiction under Article 226 of Constitution of
India cannot entertain the writ petition.
Mr. Sengupta has placed reliance upon decision
of Hon'ble Apex Court in Radhey Shyam and
Another -Vs- Chhabi Nath and Others reported in
(2015) 5 SCC 423 and Indrani Chakraborty -Vs-
State of West Bengal & Ors. reported in (2014)
SCC OnLine Cal 17573.
I have perused the judgment in Radhey
Shyam- the Hon'ble Apex Court has differentiated the
power of High Court under Articles 226 and 227 of
Constitution of India.
In Radhey Shyam- an interim order of a Civil
Court in a pending suit was under challenge before the
Allahabad High Court wherein the High Court has
vacated the interim order, against which the appellant
move the Supreme Court. Before the Supreme Court
the respondent placed reliance upon two judges Bench
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in Supreme Court in Surya Dev Rai Vs. Ram Chander Rai & Ors. (2003)6 SCC 657 which laid down that a writ petition under Article 226 is maintainable against the order of Civil Court. After dealing with the issue the Hon'ble Apex Court in Radhey Shyam (supra) has held that:
"25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel sustem of King‟s Court in India and of all the other courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is 4 not referable to the judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.
27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article
226."
In the case of Indrani Chakraborty (supra) an order of Chief Judicial Magistrate concerned regarding further investigation is under challenged wherein a Coordinate Bench of this Court has held that:
"14. Existence of „courts‟ created under different statutes, which are not „courts‟ stricto sensu is not unknown. The writ powers are available to be exercised by a High Court for the enforcement of any of the rights conferred by Part III of the Constitution or any other purpose i.e. for the enforcement of legal rights, which could be non-fundamental constitutional rights or statutory rights, is well known. Orders passed by courts, other than civil or criminal courts, could be challenged in writ proceedings. However, an order of a civil court passed in respect of a dispute between two parties or an order passed by a criminal court regarding complaints, investigations, search and seizure, trials, etc. in exercise of judicial functions although might affect the right of a party, 5 enforcement thereof cannot be asked for taking recourse to Article 226. If such order could be questioned in appeal or revision by the aggrieved party in terms of the relevant general law i.e. the Civil Procedure Code, or the Cr.P.C., the writ court ought to stay at a distance and grant liberty to the party aggrieved to pursue his remedy in terms thereof or to seek other constitutional remedy, if available, meaning thereby the High Court‟s superintending jurisdiction under Article 227.
17. Assuming that Surya Dev Rai (supra) lays down correct law, the petitioner is still not entitled to an order for admission of the writ petition. The order of the CJM impugned in this writ petition does not suffer from absence of jurisdiction although it could be challenged on the ground that the CJM in the exercise of his jurisdiction has committed an error. One might in this connection profitably refer to the decision of the Supreme Court in Official Trustee, West Bengal v. Sachindranath Chatterjee, AIR 1969 SC
823. The Supreme Court was considering what is meant by "jurisdiction" and observed that it could do no better than quote the words of Hon‟ble Asutosh Mookerjee, ACJ (as His Lordship then was) speaking for the Full Bench of this Court, in Hirday Nath Roy v. Ram Chandra Barna Sharma, AIR 1921 Cal 34. The guiding principle to bear in mind is the distinction between existence of jurisdiction and exercise of jurisdiction; the former relating to assumption of jurisdiction, when there is none, is different from the latter where, despite being conferred with jurisdiction, an error or a defect is committed."6
Mr. Sengupta submits that the provision of Section 6C of Essential Commodities Act has been amended by a special provisions under Essential Commodities (Special Provisions Act 1981) whereby the term State Government has been substituted by "judicial authority". He submits that when an order of appeal was passed under Section 6C of Essential Commodities Act by a judicial authority a writ petition filed under Section 226 of Constitution of India is not at all maintainable.
He further clarifies that the State Government has consciously substituted judicial authority to hear out an appeal against an order of confiscation passed by Collector or the State authority in Section 6A thereby, the reasons thereof for purpose of enactment of special provisions to curb the blackmailing of the Essential Commodities. He submits that the concerned authority being the Additional District & Sessions Judge, Fast Track, 1st Court, Basirhat has passed the order in Criminal Appeal. Thus, the instant writ petition is not at all maintainable.
Mr. Sagar Bandyopadhyay, learned senior counsel appearing on behalf of the petitioners submits that the statute i.e. Essential Commodities Act, 1955 has enumerated Section 3 regarding power of the State Government to control production, supply, 7 Distribution etc. of Essential Commodities for violation or contravention of provisions of Section 3 of Essential Commodities Act. The State Government has given power under Section 5 of Essential Commodities Act to pass a notified order. If there is a contravention of provisions under Section 3 of Essential Commodities Act, powers are conferred upon State Government to search and seizure of such Essential Commodities under contravention. After seizure there are two simultaneous proceedings providing Essential Commodities Act; one is the penal action enumerated under Section 7(1)(a)(ii) of the Essential Commodities Act i.e. for criminal action; and other power is enumerated under Section 6(A) for confiscation of the said seized Essential Commodities.
Mr. Bandyopadhyay argued that the power under Section 6(A) of the State Government and procedure thereof regarding confiscation of Essential Commodities is purely an administrative order. He submits that the order passed under Section 6C of the Essential Commodities Act by "judicial authority" is not a judicial order. Thus, the point raised by the learned counsel for the State authority regarding maintainability of the writ petition is not tenable. He submits that the order passed under Section 6C of the Essential Commodities Act is an administrative order 8 though by a judicial authority, thus the writ petition is maintainable.
In support of his contentions, Mr. Bandyopadhyay cited two decisions of Hon'ble Andhra Pradesh High Court passed in V. Venugopal and another -V-The Joint Collector, Chittoor District at Chittoor, and others reported in (2010) SCC OnLine AP 356 which was followed by another Coordinate Bench of the same High Court in Muthukuri Srinivasulu -V- The State of Andhra Pradesh and Others.
Mr. Bandyopadhyay argued that before the Hon'ble Andhra Pradesh High Court the issue was raised regarding the fact whether writ petition under Article 226 of Constitution of India is maintainable against an order under Section 6C of Essential Commodities Act, wherein the Hon'ble High Court at Andhra Pradesh has held that the writ petition is maintainable. He also cited a decision of Hon'ble Apex Court (five Judges Bench) in Kiran Devi -V- Bihar State Sunni Wakf Board and Others reported in (2021) 15 SCC 15. He submits that the Hon'ble three Judges Bench of the Apex Court has held that the petition styled as one under Article 226 or Article 227 would not bar the High Court to exercise jurisdiction under the Act.
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Mr. Bandyopadhyay emphasized that in Kiran Devi's case the Apex Court has also dealt with an earlier decision passed by a three Judges Bench in Radhey Shyam and Another -V- Chhabi Nath and Others.
Mr. Debabrata Saha Roy, learned senior counsel appearing on behalf of batch of writ petitioners has argued that against the order of confiscation the matter went up to the Hon'ble Division Bench wherein the Division Bench has set aside the order of confiscation in the first instance and directed the State Government to initiate the proceeding of confiscation under Section 6(A) of the Essential Commodities Act.
Mr. Saha Roy argued that the decision of Division Bench is not under challenged in appeal so the proceeding for confiscation initiated by the Collector is an administrative order hence, the writ petition is maintainable.
In reply, Mr. Suman Sengupta submits that the Hon'ble Benches of Andhra Pradesh High Court has passed the decision following Surya Dev Rai (supra) which was declared to be not a good law by Radhey Shyam (supra). Thus, the decision passed by Hon'ble High Court of Andhra Pradesh is not applicable in this case.
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He further submits that in Indrani Chakraborty (supra) a Coordinate Bench of this Court has specifically guided following Pepsi Foods Ltd. V. Special Judicial Magistrate, (1998) 5 SCC 749 that:
"Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. this article confers vast powers on the High Court to prevent abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or s. 482 of the Code it may not always be necessary to invoke the provisions of Article 226".
Heard the learned Counsel for the parties. Perused the order under challenge. There is no quarrel between the learned Counsels of the parties that when an order passed by an Administrative Authority, writ under Article 226 is maintainable. The dispute regarding maintainability of the instant writ petitions is as to whether order in appeal under Section 6C of Essential Commodities Act a Judicial 11 Authority/Officer being statutory Appellate Authority, in a judicial order or Administrative order.
In this particular case, learned Additional District and Sessions Judge, Fast Track, First Court, Basirhat has passed the impugned order. Obviously, the Additional District and Sessions Judge, Fast Track, First Court, Basirhat is a Judicial Officer, upon whom the jurisdiction and its power under Section 6C of the Essential Commodities Act, was imposed.
To properly understand the scheme of the Statute in Essential Commodities Act, it appears that Section 6A has enumerated power of confiscation of essential commodities. It has started as follows:
Section-6A-
"6-A. Confiscation of food grains, edible oilseeds and edible oils.-(1) Where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, a report of such seizure, shall without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not the prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient to do so, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been contravention of the order, may order confiscation of-
(a)the essential commodity so seized;12
(b)any package, covering or receptacle in which such essential commodity is found; and (C)any animal, vehicle, vessel or other conveyance used in carrying jsuch essential commodity:
Provided that without prejudice to any action which may be taken under any other provision of this Act, no food grains or edible oilseeds seized in pursuance of an order made under Section 3 in relation thereto from a producer shall, if the seized food grains or edible oilseeds have been produced by him, be confiscated under this section:
Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceedi9ng the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.
(2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may -
(i)order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or 13
(ii)where no such price is fixed, order the same to be sold by public auction:
Provided that in case of food grains, the collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retails sale of such food grains to the public. (3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall -
(a)where no order of confiscation is ultimately passed by the Collector,
(b)where an order passed on appeal under sub-section (1) of Section 6-C so requires, or
(c)where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized."
Section 6B has enumerated the provisions for issuance of show cause notice before passing an order of confiscation of essential commodities. It has been enumerated that before the order of confiscation the Collector shall issue notice upon the owner of the vehicle and the owner of such essential commodities.
Section 6C of the Essential Commodities Act has its provision of appeal against the order passed under 14 Section 6A. For accurate appreciation of the provisions, Section 6C is set out as follows:
"(1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority shall, after giving an opportunity to the appellant to be heard,...."
Section 6C has enumerated that the State Government concerned shall appoint a Judicial Authority to hear out the appeal against an order of confiscation under 6A of the Act. It is no doubt that the "Judicial Authority" mentioned in Section 6C of the Act indicates a Judicial Officer. So, it is abundantly clear that against an order under Section 6A, an appeal has filed before a Judicial Officer so designated by the State Authority. It appears that the Additional District and Sessions Judge being the judicial authority has passed the impugned order.
Let me consider whether the order impugned passed by the Judicial Authority (Additional District and Sessions Judge concerned) is a judicial order or is an order passed in an administrative quasi judicial capacity.
In Radheshyam -the issue before the Hon'ble Apex Court was an interim order passed by a Civil 15 Court in a pending suit wherein the Hon'ble Apex Court has decided that earlier decision of Supreme Court in Surya Devi Rai is not a good law. Judicial Orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India but Article 227 may apply.
In Indrani Chakraborty, an order passed by a Chief Judicial Magistrate concerned in a criminal proceeding regarding order of further investigation by a Police Officer is under challenge wherein a Coordinate Bench of this Court, after deciding all the issues, has held that writ under Article 226 is not maintainable rather Article 227 of the Constitution of India or Section 482 Cr.P.C. may apply.
In Kiran Devi an order passed by the Wakf Tribunal under Section 83(1) and 85A of the Wakf Act, 1995 is under challenge wherein the Hon'ble 3 Judges Bench has dealt with the observation of this Court. In Kiran Devi, the Supreme Court is of the view that whatever be the nomenclature of the petition, either under Article 226 or 227 of the Constitution of India, the jurisdiction of High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court.
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In Radheshyam and Indrani Chakraborty purely judicial order passed by competent Courts were under challenge. Superintending authority of High Court over subordinate judiciary under Article 227 of Constitution of India to prevent abuse of process of law by inferior courts is well accepted.
In Kiran Devi- impugned order was passed by Wakf tribunal, thus power to issue writ under Article 226 of Constitution of India is no doubt applicable. Basically, the issue raised before this Court regarding the maintainability of the writ petitions is not clearly deal with by any of the principles laid down by the Hon'ble Apex Court in the above citation.
In Essential Commodities Act, in violation or contravention of any provision under Section 3 of the said Act, there are two simultaneous proceedings, one is a criminal proceeding i.e. penal action under Section 7(1)(a)(ii) of the Act which provided for criminal prosecutions before a Criminal Court of Law. Section 7(1)(a)(ii) denoted the term "Court" which also enumerates the provisions for conviction. Simultaneously Section 6A provides a provision for confiscation. Admittedly, the power of confiscation and provisions thereof is vested upon the Collector of the district under whose jurisdiction the seizure of essential commodities has been made. 17
After hearing the parties, the Collector has authority to pass an order under Section 6A for confiscation. So, the order under Section 6A is purely an administrative order. Thus the proceeding of confiscation initiates through administrative function. Section 6C is a provision for appeal wherein it has been specially enumerated that a Judicial Authority is the person to hear out the appeal. The Judicial Authority hearing an appeal of an order passed by a Collector under administrative function, mere a Judicial Authority who empowered to hear an appeal, against the order passed by the Collector in its administrative capacity, does not ip so facto change the entire cord for essence of the proceedings into a judicial proceeding.
I can understand the submission of the learned Counsel for the State that if a judicial order is passed by a Judicial Authority that can only be amenable under Article 227 of the Constitution. But in this case only functioning of a Judicial Authority in holding an appellate power of an order passed in an administrative capacity does not ip so facto convert the entire proceedings to a judicial proceeding. The Statute specifically empowers a Judicial Authority to pass an order in appeal against an order of Collector 18 means and includes its order passed in administrative side not by a judicial side.
I make it clear that the nomenclature of the proceeding being a criminal appeal is also not correct.
Considering the entire submission of the parties and the provisions of law, I am of the opinion that the impugned order passed by the learned Additional District and Sessions Judge, Basirhat is not a judicial order but an order in administrative side. Thus, it is amenable to writ jurisdiction under Article 226 of the Constitution of India. Thus, the point of maintainability as raised by the learned Counsel for the State is not at all tenable.
Since the matters are ready for hearing, let the matters appear on 21.05.2025 at 12.30 p.m. for hearing.
Interim order passed by this Court in earlier occasion is further extended till the adjourned date.
Parties to act upon the server copy and urgent certified copy of this order be provided on usual terms and conditions.
(Subhendu Samanta, J.)