THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA Writ Petition Nos.12805, 14867 & 16900 of 2009 COMMON ORDER: 1 Since the issue involved in all these Writ Petitions is one and the same, the same are being disposed of by way of this common order. 2 For the sake of convenience I take up the case in Writ Petition No.12805 of 2009 first and then give finding in the other two Writ Petitions. 3 Petitioner filed the Writ Petition 12805 of 2009 seeking a writ of mandamus to declare the action of the respondents in seizing the entire stock of paddy, rice and broken rice from his mill on 17.06.2009 as arbitrary, illegal and without jurisdiction and consequently set aside the proceedings of the first respondent in CS 1/1017/2009 dated 25.06.2009. 4 Brief facts are that Petitioner herein is a Parboiled Modern Rice Mill situate at Gadipally village, Garidepally Mandal Nalgonda District and it has all valid licences to carry on the business of milling paddy and selling rice. On 17.06.2009 the Joint Director (CS) Nalgonda District who is arrayed as second respondent herein along with the vigilance officials surprised the rice mill of the petitioner and seized 2942 Quintals of BPT variety paddy, 26,224 Quintals of JGL paddy, 34,454 Quintals of 1010 variety paddy, 550 Quintals of BPT rice, 550 Quintals of Boiled Rice, 360 Quintals of Rejected rice and 495 Quintals of Broken rice and the stock registers on the ground that on verification of particulars of paddy purchased for milling, rice produced by the petitioner with reference to sales made (FCI/Open Market), the vigilance officials noticed variation of (-) 15216.45 Quintals in rice and (-) 753 Quintals in paddy. A panchanama was drafted then and there itself and put the entire stock in the custody of one Pabba Nageswar Rao Managing Partner of M/s. Mahalakshmi Rice Mill, Suryapet for safe custody. Thereafter the matter was reported to the first respondent-District Collector for initiation of proceedings under Section 6 A of the Essential Commodities Act. The first respondent issued a show cause notice to the petitioner vide proceedings CS 1/1017/2009 dated 25.06.2009 stating that the vigilance officials noticed variations in stocks of paddy and rice and the petitioner has stored preferred variety of paddy over and above the permissible limits and contravened the provisions of clauses 9, 12 and 16 of AP Rice Procurement (levy) Order 1984 and under clause 10(1) of APSCD (L, S &R) Order 2008 as amended vide the Government Memo No.41/CS1 (1)/2008 dated 12.01.2009 and G.O.Ms.No.50 CA, F & CS Department dated 02.12.2008 and proposed for confiscation of the entire stock worth Rs.6,84,11,620/-. 5 The petitioner contends that the authorities have calculated the stocks without taking into consideration the yield of broken rice and that it supplied 2,000 Quintals of BPT to assist the Government in distribution of the rice through civil supplies counters, that as required by law it is submitting the registers to the authorities for every fifteen days, which are under the control of the respondents and there is no concealment of any stock as they have paid the market fee besides the sales tax and VAT. 6 This court on 30.06.2009 while adjourning the matter to 06.07.2009 enabling the learned Assistant Government Pleader to file counter affidavit, permitted the respondents to sell 550 Quintals of BPT rice seized from the petitioner’s mill in public auction and as regards the direction to the petitioner to mill the seized paddy, no further action shall be taken in that regard till the next date of hearing. 7 An affidavit sworn to by the second respondent has been filed stating that the stocks held by the petitioner is beyond the permissible limits, according to Clause 18(2) (c) of APSCD Order 2008, 6% variation between book balance and ground balance should be allowed as per which the permissible variation in rice is only 88 Quintals on ground balance, but the variation noticed by the authorities is 15,216 Quintals. It is further stated that the yielding of rice was calculated @ 67% as per the Government Memo which is for the head rice only and broken rice percentage is different, which will not be included in the head rice percentage. The petitioner did not produce any evidence regarding per hour milling capacity of the mill is 10 tonnes and even if the contention of the petitioner is taken into consideration, as per G.O.Ms.No. 49 CA, F&CS (CS1) Department dated 25.11.2008 the paddy stock limits than can be held by the rice millers for above 5 tonne paddy per hour milling capacity is 2,52,000 Quintals and as per G.O.Ms.No.4 CA, F&CS (CS1) Department dated 16.01.2009 and Memo No.41/CS 1/2009, dated 05.06.2009 the rice miller can hold 10% of total stock allowed as superfine (preferred varieties) of paddy i.e. 25,200 Quintals only, but the petitioner has hoarded 29166 Quintals of preferred variety of paddy as on the date of seizure which is 3,966 Quintals more than the permissible limit. 8 Denying the various allegations adverted to in the counter affidavit, the petitioner filed reply affidavit stating inter alia that the proceedings of the Government of India have no statutory value nor they are traceable to any power so as to calculate the production of rice at 67% for paddy milled, the millers purchase paddy of different varieties from the ryots and as such there cannot be any uniform ratio of production of rice for the paddy milled and it is only the rice or paddy, which is delivered as levy to the FCI, is given different grades by technical means and beyond prescribed limits the stocks are rejected. As regards the maximum limits of preferred variety of paddy, the petitioner submitted that the Government issued Memo No.41/CS 1/09 dated 12.01.2009 wherein it modified the upper limit of the paddy to be held by a miller with reference to the tonnage capacity of the mill and so the upper limit of 25,200 tonnes of paddy for a mill of above 5 tonnes capacity no more holds. The petitioner further submits that as per the inspection report of the General Manager, Industries the milling capacity of the petitioner is 12.75 tonnes and so the petitioner is entitled to hold paddy @ 3600 tonnes per ton milling capacity, which comes to 45,900 tonnes and the preferred variety that the petitioner can hold is 10% of this capacity, which comes to 4590 tonnes. Whereas the petitioner was holding 29166 Quintals of preferred variety, therefore, there is no variation in that regard. 9 Heard both sides. 10 Mr. Mahmood Ali learned counsel for the petitioner contended that the so called violation of Government Memo No.1 does not constitute contravention of an order made under section 3 of the Essential Commodities Act. As regards the alleged shortage of 753 Quintals of paddy when compared with the physical stocks of paddy available with reference to book balance, the learned counsel for the petitioner contended that the petitioner handled huge stocks of paddy and this quantity of 753 Quintals is negligible and the alleged shortage of 753 Quintals of paddy was purely on account of moisture contents in the paddy. He further contended that under G.O.Ms.No.49 dated 25.11.2008 the millers whose milling capacity is five tonnes paddy per hour, the miller was permitted to hold 25200 M.T of paddy and subsequently the Government issued Memo No.41/CS 1/2009, dated 12.01.2009 permitting the millers to hold paddy with reference to per ton per hour milling capacity of paddy. He further contended that the milling capacity of the petitioner was reported to be 12.75 tonnes per hour and so the petitioner is entitled to hold paddy at 2600 tonnes per ton milling capacity which comes to 45,900 tonnes whereas in the instant case it comes to 4590 tonnes and hence there is no violation. In that regard he takes the aid of Clause 10 of the G.O.Ms.No.49 dated 25.11.2008. He further contended that in view of the legal position, the proceedings initiated by the Collector will not stand as the Collector has no jurisdiction to initiate such proceedings. He further contended that the seizure of the stocks is totally without jurisdiction and ultimately prayed to allow the Writ Petition. 11 Per contra the learned Assistant Government Pleader has reiterated the contentions in the counter affidavit filed on behalf of the respondents, by contending that the variation in respect of rice is beyond the permissible limits and according to Clause 18 (2) (c) of APSCD Order 2008, 6% variation between book balance and ground balance should be allowed and according to this the permissible variation in respect of rice is only 88 Quintals on ground balance, but the variation noticed is 15216 quintals. 12 No doubt, it is contended by the learned counsel for the petitioner that the impugned proceedings initiated by the first respondent is without jurisdiction. But this Court is not inclined to go into the said aspect for the reason that the said aspect can also be canvassed before the 1st respondent. Of course, if this court is satisfied that an order is without jurisdiction, there is no need to direct the authority below to complete the enquiry. Since this court is not inclined to go into the said aspect, I deem it appropriate to direct the first respondent to complete the enquiry pending before him. 13 Since it is the contention of the respondents that the miller, with an oblique motive obstructed the free flow of preferred variety rice and paddy in the market, and since on the other hand it is the contention of the contention of the petitioner that the alleged variation is within the permissible limits, and inasmuch as proceedings under section 6 A of the Essential Commodities Act have already been initiated, this court is of the view that instead of giving any finding in this Writ Petition, suffice it to direct the Collector to complete the said enquiry as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of a copy of this order because any finding in this Writ Petition may have bearing on the outcome of the said proceedings initiated by the Collector. It is needless to observe that while adjudicating the matter, the petitioner shall be afforded an opportunity of personal hearing and it is for the petitioner to canvass all the contentions raised herein before the Collector. 14 Accordingly this Writ Petition is disposed of. No order as to costs. Consequent upon the disposal of the Writ Petition No.12805 of 2009, the Writ Petition Nos.14867 and 16900 of 2009, which are filed with an identical prayer, deserve no separate findings and they are also disposed of with the very same direction. ------------------------- 30.12.2009 kvsn