Shib Sankar Nandi vs State of West Bengal and Others

Hon''ble Mr Justice Jayanta Kumar Biswas

The petitioner in this AST under art. 226 dated October 3, 2012 is questioning an order of the Collector, Murshidabad dated July 30, 2012 (AST p.48) passed under s. 6A of the Essential Commodities Act, 1955. The Collector initiated proceedings for confiscation of the seized commodity and has ordered its confiscation. He, however, did not mention, either in the show cause notice or in the order, for violation of which provision of which order made under s. 3 of the Essential Commodities Act, 1955 he initiated the proceedings.

In his objection to the show cause notice the petitioner contended that no case of violation of any provision of any order made under s. 3 of the Essential Commodities Act, 1955 was stated in the show cause notice. The Collector, it is evident, has not considered this aspect. In my opinion, the question is related to the jurisdiction of the Collector to initiate the confiscation proceedings.

During pendency of the confiscation proceedings the Collector did not pass any interim order under sub-s.(2) of s. 6A. The petitioner has prayed for admission of the AST and a restraining order.

There is no dispute that a restraining order is likely to cause serious damage to the commodity that is subject to speedy and natural decay. Under the circumstances, Mr Sengupta appearing for the State was directed to ascertain from the Collector for violation of which provision of which order made under s. 3 of the Essential Commodities Act, 1955 the confiscation proceedings were initiated.

Mr Sengupta has submitted under instructions that the Collector did not mention anywhere any provision of any Control Order for violation of which the confiscation proceedings were initiated.

It is evident from the above-noted facts and circumstances that the Collector did not decide the question of his jurisdiction to initiate the confiscation proceedings, though the question was specifically raised by the petitioner in his written objection to the show cause notice. On these facts, I do not think availability of a statutory appeal against the order is a bar to file this AST under art. 226.

In my opinion, the Collector committed a jurisdictional error by not deciding the question of his jurisdiction. I think it will be appropriate, on the facts and in the circumstances of the case, to set aside the impugned order and direct the Collector to decide the question of his jurisdiction at once. For these reasons, I set aside the impugned order, allow the AST to this extent and direct the Collector to hear the petitioner and decide the question of his jurisdiction to initiate the proceedings, within a week from the date this order is served. No costs. Certified xerox.