Andhra HC (Pre-Telangana)
Ch. V. Ranga Rao And Ors. vs The Govt. Of Andhra Pradesh Rep. By Its ... on 29 October, 1996
Equivalent citations: 1997(1)ALD(CRI)154, 1997(1)ALT171
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, T. Ranga Rao
ORDER B. Subhashan Reddy, J.
1. These writ petitions raise a common point as to the liability of either the Transport-Contractor or a carrier for confiscation of the vehicles for violation of either A.P. Petroleum Products Order, 1980 or A.P. Scheduled Commodities Dealers Order, 1982.
2. Insofar as the writ petitions 5654/90 and 7841/92 are concerned, they relate to the Petroleum Products and covered by the A.P. Petroleum Products Order, 1980 and the writ petition 1598/1992 is concerned with the A.P. Scheduled Commodities Dealers Order, 1982.
3. In the first set of two writ petitions petroleum products were being transported and in the last writ petition what was being transported was palmolein oil, covered by A.P. Scheduled Commodities Dealers Order, 1982. In the first two writ petitions covered by the A.P. Petroleum Products Order, 1980, the owner of the product is Oil Corporation; whereas in the last writ petition covered by the A.P. Scheduled Commodities Dealers Order, 1982, the owner of palmolein oil is Civil Supplies corporation. Both A.P. Petroleum Products Order, 1980 and A.P. Scheduled Commodities Dealers Order, 1982 have been promulgated in exercise of the powers Under Section 3 of Essential Commodities Act, 1955 (hereinafter referred to as the Act). The Petroleum Products Order, 1980 is referred to as Petroleum Order while the Scheduled Commodities Dealers Order, 1982 is referred to as Commodities Order. Both the Petroleum Order and Commodities Order contain analogous provisions with regard to the exemption of both Oil Corporation and Civil Supplies Corporation from the respective Orders. In the Petroleum Order it is by virtue of Clause 22 and in the Commodities Order it is under Clause 19.
4. Mr. M.P. Chandramouli, the learned Counsel appearing for the petitioners covered by the Petroleum Order submits that the petroleum products are the properties of the Oil Corporation concerned and the petitioners are mere carriers and possess valid registration certificates for carrying the petroleum products. He contends that the Oil Corporation continues to be the owner of the commodities and it is not divested of the ownership merely because it was entrusted for transportation. The petitioners .have no right over the commodities excepting carrying it to the destination and deliver the same. This is done pursuant to a contract and if the contract is breached, then consequences of such breach of contract will emanate because of the conditions enumerated under Clauses 15 and 10 respectively. Similar clause is there with regard to the petitioner covered by the Commodities Order. Those are the civil consequences and the owner i.e. the Petroleum Corporation and the Civil Supplies Corporation are entitled to initiate proceedings in case they feel that there is breach of obligations of the petitioners. His argument is that in no event petroleum commodities can be confiscated because of the exemption mentioned above and when the commodities cannot be confiscated, the question of confiscating the container or the vehicle does not arise.
5. The learned Counsel appearing for the petitioner in Petroleum Order supports the said arguments.
6. Appearing for the respondents, Ms. Rohini, the learned Government Pleader submits that the carrier has to obtain a registration certificate and the registration certificate contains a clause that he shall not violate the provisions of Petroleum Order and that for the pilferage caused, the tanker is liable to be confiscated. Her argument is, even if the product is not liable for confiscation for the reason of exemption granted to Oil Corporation because of Clause 22, the tanker can independently be confiscated.
7. Mr. N. Subba Reddy, appearing for the Civil Supplies Corporation, supports her arguments and he invites our attention to the specific words "purchase", "sale" or "storage" used in the Commodities Order to say that they do not take in transportation and as such transportation is not exempted.
8. We have scanned the agreement and orders and heard arguments inter se, advanced on behalf of the Oil Corporation and Civil Supplies Corporation and the petitioners. From the said agreements spring civil action and if the respective Corporations want to prosecute their remedies, they can do so but not under the provisions of Essential Commodities Act, 1955, as we are not dealing with the consequences arising out of breach of contract and as we are called upon to answer as to whether the action of pilferage by the drivers while operating the tankers gives rise to any penal action of confiscation of the vehicles while dissecting the same from the liability of confiscation of the commodity, be it diesel, petrol or palmolein oil. The judgment of learned single judge of this court dated 13-3-1996 rendered in W-P. No. 9963 of 1988 is brought to our notice and we have perused the same. The Commodity Order of 1982 vis-a-vis A.P. Civil Supplies Corporation, similar to that of the last writ petition herein was adjudicated. Similar question arose with regard to the exemption of Civil Supplies Corporation. It is held in that case that the Civil Supplies Corporation is exempted from the Commodities Order and even though it was seized during the course of transportation, the goods continue to be vested in the Civil Supplies Corporation and it continued to be the owner, and when the ownership was not divested merely because of process of Transportation and such exemption covered the said process of transportation, as such the A.P. Scheduled Commodities (Licensing and Distribution) Order, 1982 was inapplicable and there was no jurisdiction to seize the commodities. We concur with the view of the learned Single Judge. Section 3 of the Essential Commodities Act, confers powers to promulgate the order. Petroleum Order or Commodities Order are such Orders in exercise of powers contained Under Section 3 and they are by way of Subordinate Legislation while the main provision is Section 3 which contains power of delegation empowering Subordinate Legislation. Violation of orders promulgated Under Section 3 can give rise to an action for seizure of the commodity and also the container or vehicle which carries the said commodities, but, when the Order itself is not applicable, because of the exemption clause mentioned above, the question of violation of Section 3 does not arise and consequently Section 6-A of the Act has got no application. Further Under Section 6-A of the Act, the first target for confiscation is the commodity and only if the commodity is confiscated, the container or vehicle can be confiscated. Even while the power of confiscation of the commodity is absolute, the confiscation of the container or vehicle is not an inevitable corollary and the owner of the container or vehicle can always plead innocence by adducing evidence, get freed from the confiscation of the said container or vehicle. While there is absolutism insofar as confiscation of commodity is concerned, when the violation is proved, the confiscation of the vehicle or container is conditional as mentioned supra and as such, there cannot be any dichotomy between the commodity and the container or the vehicle and unless the commodity is confiscated, the question of confiscation of the container or vehicle cannot and does not arise. A look at the provisions of Clause 22 of the Petroleum Order also throws some light as it specifically excludes petroleum in a tank fixed permanently to motor vehicle.
9. For the reason that the Petroleum Order 1980 did not deal with this kind of cases where the violation committed by the carriers and the employees or agents, the Government thought it fit to promulgate another Order to plug the loopholes and promulgated "The Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990" which enlarges the definition of 'Dealer' to take in, the representatives, employees or agents, or person appointed by the Oil Company and also the definition of 'malpractice' to take in, the acts of omission and commission in respect of Motor Spirit and High Speed Diesel regarding adulteration, pilferage, stock variation, unauthorised exchange, unauthorised purchases, and unauthorised sale.
10. In view of what is stated supra, we uphold the contention that the vehicles/tankers are not liable to be confiscated and as such, allow these writ petitions. No costs.