M/s Kailash Chand and Co. vs District Magistrate and Others

Uday Sinha, J.—This is an application under Article 226 of the Constitution of India for issuance of a writ of certiorari after quashing Annexures-2 and 3 to this application. By Annexure-2 the Collector, Patna ordered confiscation of 9 tins of ground-nut oil, 9 tins of palm oil, 15 tins of mustard oil, 13 tins of Vanaspati, 9 bags (90 Kg. each) of Atta, 2 bags (100 Kg. each) of sugar and 28 bags of maida in terms of Section 6A of the Essential Commodities Act (hereinafter referred to as ''the E.C. Act)''. Annexure-3 is the order of Additional Sessions Judge VIth Court, Patna dated 29-7-78, on appeal in terms of Section 6-C of the E.C. Act. The petitioner at the relevant time was a licensee under the Bihar Food grains Dealers'' Licensing Order, 1967 and the Bihar Vanaspati Dealers'' Licensing Order, 1967. He was not, however, a licensee under the Bihar Edible OH Dealers'' Licensing Order. The attitude of the petitioner is that he is not required to take out a licence for dealing in edible oil, as his business is confined to less than eight quintals. On 15-12-1977 two godowns of the petitioner in mohalla Bakerganj in the town of Patna were inspected. Certain discrepancies having been found in the accounting of the goods, as also on the ground that he was dealing in edible oil without licence, his stocks were seized. In January; 1978 a notice was issued upon the petitioner calling upon him to show cause why the items mentioned in the notice be not confiscated. The grounds for confiscation mentioned in the notice were mentioned as follows:--

Whereas you did not produce any papers to the raiding party in connection with carrying the business of essential commodities which were seized from your godown, and

Whereas you had stored materials in two different godowns, having no signboard displaying price and stock outside the business premises, and

Whereas you had closed the shop and opened them after due pressure for inspection, and

Whereas you are in habit of hoarding essential commodities and selling it on black market, and

Whereas you have violated the provisions of E.C. Act and Display of Price and Stock Order 1975.

You are hereby directed to show cause by 30-1-1978 as to why the seized commodities be not confiscated.

Given under my hand and seal of this Court, the......day of January, 1978.

The Collector after hearing the parties directed seizure of all the items mentioned in the notice except 15 tins of rapeseed oil in respect of which no discrepancy had been found. The petitioner being aggrieved by the order of the Collector filed appeal to the District and Sessions Judge, Patna u/s 6-C of the E.C. Act. The appeal was transferred by the District and Sessions Judge to the Court of Additional District and Sessions Judge VI, Patna. Needless to say, the appeal also failed and was dismissed by order dated 29-7-1978 (Annexure-3). Hence the present application.

Learned counsel for the petitioner raised two points. The first point urged by him was that the State Government having appointed District and Sessions Judges to discharge the duties and functions of Judicial Authorities u/s 6-C of the Act, Sessions Judge, Patna had no jurisdiction to transfer the appeal for hearing to Additional District and Sessions Judge. The appeal having been heard and disposed of by an Additional District and Sessions Judge, Annexure-3 was invalid and without jurisdiction. The second submission on behalf of the petitioner was that the findings recorded in Annexures 2 and 3 had no nexus with the grounds mentioned in the notice calling upon the petitioner to show cause. It was submitted that the findings must bear nexus and be relevant to the grounds mentioned in the notice in order to visit the petitioner with the evil consequences of confiscation of the seized articles. Thus contended learned counsel for the petitioner.

I shall now consider the validity of the first submission. Section 6-C(1) of the E.C. Act reads as follows:--

6-C. Appeal-Any person aggrieved by an order of confiscation u/s 6-A 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, pass such order as it may think fit confirming, modifying or annulling the order appealed against.

In terms of the above provision the State Government appointed by Notification No. S.O. 187 dated the 21st August, 1967 District and Sessions Judges as the Judicial Authorities. A copy of the notification has been annexed as annexure-5 to this application. The main question which arises for consideration is whether the District and Sessions Judges could nominate any other person to hear the appeal. Section 8 of the Bengal Agra Assam Oudh Civil Courts Act empowers a District Judge to transfer any case which he is empowered to hear by Statute. There can, therefore, be no difficulty in taking the view that in terms of the Civil Courts'' Act the District and Sessions Judge had the jurisdiction to transfer the appeal to Additional District and Sessions Judge.

Learned counsel for the petitioner, however; submitted with some emphasis, that the judicial authority appointed under the Essential Commodities Act had been designated more with an eye on Sessions Judges rather than District Judge for it had been described as District and Sessions Judge. As the matter relating to confiscation under the E.C. Act is quasi criminal in complexion, the emphasis in the Government order (annexure-5) was on Sessions Judge and not on District Judge. As there is no provision in the Code of Criminal Procedure akin to Section 8 of the Civil Courts Act the Sessions Judge had no power to transfer the appeal to Additional Sessions Judge for hearing. Thus contended learned counsel for the petitioner. The legal sanction of a Court of Sessions is to be found in Section 9 of the Code of Criminal Procedure, 1973 which reads as far as relevant as follows:--

(1) The State Government shall establish a Court of Session for every sessions division.

(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session.

The provisions under the new Code of Criminal Procedure are some what different from that under the old Code; but the differences are in phraseology only and are immaterial for the point in issue here. From the provisions quoted above, it will be seen that there is a Court of Session for every Sessions Division. Besides the Sessions Judge, there are Additional Sessions Judges for the exercise of sessions jurisdiction in every Sessions Division. Sections 194 and 408 of the Code of Criminal Procedure, 1973 empower a Sessions Judge to transfer cases to Additional Sessions Judges. The powers of a Sessions Judge under the Code of Criminal Procedure are thus no less than the powers of a District Judge under the Civil Courts'' Act. It is obvious, therefore, that a District and Sessions Judge is empowered to transfer cases to Additional District and Sessions Judges by virtue of the powers conferred upon him by the Civil Courts'' Act as well as by the Code of Criminal Procedure.

Learned counsel for the petitioner submitted that the District and Sessions Judge being a Persona Designate, he could not designate the authority of hearing appeals to some body else, as a delegate cannot delegate his authority. Delegata Potestas Non Potest Delegari. Learned counsel for the petitioner in support of his proposition placed reliance upon (1) The King Valloyd [ (1906) 1 KB 22] Reliance was placed upon the sentence which reads as follows:--

Nor can no individual, clothed with judicial functions delegate the discharge of these functions to another, unless as in the case of a county Court Judge; he be expressly empowered to do so.

It is obvious from the above that if an authority has been expressly empowered to delegate the discharge of his functions, the delegation by the delegate would be perfectly valid. In the case before us, I have shown above, the District and Sessions Judge in exercise of his Civil and Criminal powers was empowered to delegate the discharge of the functions entrusted to him as Sessions Judge. Reliance was also placed on behalf of the petitioner upon (2) Reg versus Perkin (7 QB 165) wherein it has been held--

A person to whom any office or duty is delegated, for example; an Arbitrator cannot lawfully devolve the duty on another unless he be expressly authorised so to do.

This case also cannot be of any assistance to the petitioner. In this case also it has been emphasized that an express authorisation may clothe an Arbitrator or any authority to lawfully devolve the duty on another. The observations in Broome Legal Maxim that "the right is personal to himself and a trust that he can no more delegate to another, than a justice of the peace can transfer his commission to his clerk" is also of no avail to the petitioner. The observations are general in nature and do not take note of provision regarding express authorisation in regard to delegation of functions.

The authorities relied upon by Mr. Sanyal for the petitioner; are not of much avail. The real question is whether the delegation of appellate functions was to a persona designata or to the judicial authority. In my view; the appellate authority created by Annexure-5 was not a particular person but to a judicial authority acting in terms of statutory provisions. The provisions which guided and controlled his functions are laid down in the Civil Courts Act, CPC and the Code of Criminal Procedure. It is obvious, therefore; that the delegation was not to a persona designata. The question whether creation of judicial authority in terms of Section 6-C of the E.C. Act is a persona designata or a Judge holding certain office was subject matter of consideration before the Supreme Court in (3) Thakur Das (Dead) by Lrs. Vs. State of Madhya Pradesh and Another, . The points raised for consideration before their Lordships in that case were not exactly the same as in this case, yet its verdict in regard to the nature of the delegation under the Act is of help in deciding the point in issue in the present case. There the High Court, acting in terms of Sections 435 and 439 of the Code of Criminal Procedure; had reversed the appellate order of Sessions Judge, Mandsaur Division; who had disposed of an appeal u/s 6-C of the E.C. Act. The power of the High Court to set aside and reverse the order of the Sessions Judge in appeal was challenged on the ground that the Sessions Judge acting in terms of Section 6-C of the E.C. Act was not an authority subordinate to the High Court and, therefore, the latter in exercise of powers under Sections 435 and 439 of the Code of Criminal Procedure could not revise the order of the Sessions Judge u/s 6-C of the Essential Commodities Act. While considering that submission; the Supreme Court observed that--

By the amendment Act No. 25 of 1966 Sections 6-A to 6-D were introduced in the Act. This introduced a basic change in one respect, namely, that an order of confiscation being penal in character, the person on whom penalty is imposed is given an opportunity of approaching a judicial authority. Earlier appeal from executive officer would lie to another executive forum. The change is appeal to judicial authority. Therefore, the expression clearly envisages a pre-existing judicial authority has to be appointed appellate authority u/s 6-C. When the provision contained in Section 6-C is examined in the background of another provision made in the Act itself, it would become further distinctly clear that pre-existing judicial authority was to be designated as appellate authority u/s 6-C. A seizure of essential commodity on the allegation that the relevant licensing order is violated, would incur three penalties: (1) cancellation of licence; (2) forfeiture of security deposit; and (3) confiscation of seized essential commodity, apart from any prosecution that may be launched u/s 7. In respect of the first two penalties an appeal lies to the State Government but in respect of the third though prior to the introduction of Section 6-C an appeal would lie to the State Government, a distinct departure is made in providing an appellate forum which must qualify for the description and satisfy the test of judicial authority. Therefore, when the Sessions Judge was appointed a judicial authority it could not be said that he was persona designata and was not functioning as a Court.

The Supreme Court thus clearly rejected the connection that the authorisation was to a persona designata. If Annexure-5 did not create a persona designate, I see no reason for holding that the District and Sessions Judge; Patna had no jurisdiction to transfer the appeal to the Additional District and Sessions Judge. In my view, the transfer of the appeal to Additional District and Sessions Judge, Patna was perfectly valid. The Tatter''s order (Annexure 3), therefore, was not without jurisdiction. The submission; therefore, on behalf of the petitioner must fall.

The second submission urged on behalf of the petitioner was that the grounds mentioned in the notice were extraneous and irrelevant. I fall to appreciate any substance in this submission. The first ground for confiscation was that the petitioner had failed to produce papers to the raiding party in connection with the business of essential commodities. I am unable to see why this should be considered as irrelevant consideration in the matter of confiscation of the essential commodities. There is social purpose behind enactment of the Essential Commodities Act, namely, regulation of the distributive machinery in regard to the essential commodities. It is incumbent, therefore, upon every dealer to produce relevant papers in connection with his business whenever called upon. The position is the same in regard to the reluctance of the petitioner to open the shop for inspection. These grounds cannot be dubbed as vague, irrelevant or extraneous to the E.C. Act and the Display of Price and Stock Order 1975. This submission also urged on behalf of the petitioner must, therefore, be rejected.

Learned counsel for the petitioner submitted that non-scheduled articles; namely; palm oil not being an essential commodity nor an essential article included in Schedule I of the Display of Price and Stock Order 1975 (hereinafter called ''the Display Order''), no offence had been committed in regard to it nor it was liable to be seized and confiscated. The submission in this behalf has no substance and must be rejected. In the Display Order of 1975 edible oils were not included in the Schedule, but the order was repealed in October; 1975. This Order was operative on the day the seizures were effected in the instant case. Schedule I to the Display Order 1977 lists edible oils of all kinds, as item No. 12 in Schedule I to the Order. Learned counsel for the petitioner endeavoured to spin out a point by contending that notice to show cause against confiscation referred to the Order of 1975 and not to 1977. The submission is move ethereal than substantial. On the date in question the Order in force was the 1977 Older. The reference to 1975 Order may be just a clerical mistake. Further it is now well established that the act of an authority cannot be invalidated if he possesses a necessary jurisdiction only because reference has been made to a wrong provision of law. In the instant case, the District Magistrate had the jurisdiction to act in terms of the Display Order 1977. The reference to 1975 Order in Annexure 1 cannot invalidate the order of confiscation. The order in relation to confiscation of palm oil and edible oil cannot be assailed on the ground urged by learned counsel for the petitioner.

Learned counsel for the petitioner also submitted that the goods were in the godown and as there was no obligation to display the stocks and prices of goods in the godown, the petitioner had not contravened the provisions of Display Order, 1977. There being do contravention of the Display Order, the seizure was illegal and the seizure being illegal, the confiscation was illegal. Thus argued learned counsel for the petitioner. The answer to this submission will depend upon the location of the business premises and the godown. If the two are one and the same premises, the non-display must have reference to the shop as well as godown. If the godown is at a distant place from the business premises, surely no dealer is required to display the stocks and price of the goods at the godown. In the instant case, it appears that the business premises and the godown were in the same premises. To add to it the petitioner was storing essential articles in a room which he was reluctant to open and show to the supply authorities.

The submission on behalf of the petitioner that none of the courts below had held that the petitioner had contravened the grounds mentioned in the notice has only to be stated to be rejected. Both the courts of facts have gone into questions of fact arising in the case and submitted before them and had come to the conclusion that the petitioner had contravened the provisions of the B.C. Act. The findings of fact are unassailable. No other submission was urged on behalf of the petitioner. Having given my most anxious consideration to the facts and law involved in this case, I am of the view that there is no merit in this application and it is accordingly dismissed. In the circumstances of the case, there will be no order for costs.

K.B.N. Singh, C.J.

I agree.