IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 WP(C).No. 37892 of 2008(J) -------------------------- PETITIONER(S): --------------- 1. MANZOOR, PADINJARETTAYYIL HOUSE, P.O.ERUVA, KAYAMKULAM, ALLEPPEY DISTRICT. 2. SHAJAHAN, AGED 30 YEARS,S/O.ISMAIL, PADIPURAKKAL VADAKKATHIL, NEAR FIRE STATION, KAYAMKULAM, ALLEPPEY DISTRICT. 3. ASHRAF, VALIYAVEETTIL KIZHAKKATHIL, NEAR M.S.M.COLLEGE, KAYAMKULAM, ALLEPPEY DIST. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE TALUK SUPPLY OFFICER, CHERTHALA. GOVERNMENT PLEADER SMT. M.R. SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the permit issued to Ist petitioner dated 17.6.2008. Ext.P2. True copy of the bills dated 25.10.2008. Ext.P3. True copy of the representation dated 30.10.2008 before the Dist. Collector by the Ist petitioner. Ext.P3(a) True copy of the representation d ated 30.10.2008 before the Ist respondent by the 2nd respondent Ext.P4. True copy of the judgment dated 12.11.2008 in WP(c).No.33367/08 Ext.P5. True copy of the notice dated 28.11.2008. Ext.P6. True copy of the written explanation given by the Ist petitioner dated 3.12.2008. Ext.P6(a) True copy of the written explanation on the 2nd petitioner dated 3.12.2008. Ext.P6(b) True copy of the written explanation by the 3rd petitioner dated 3.12.2008. Ext.P7; True copy of the order dated 17.12.2008 of the petitioner. // true copy // P.A to Judge. ANTONY DOMINIC,J. ----------------------- W.P.(C).No. 37892/2008 ------------------------ Dated this the 13th day of January, 2009. JUDGMENT Challenge is against Ext.P7. 2. First petitioner claims to be a fisherman. He also claims to represent 14 other fishermen. Ext.P1 is the permit for Kerosene for supply of fishing purposes, issued in favour of the first petitioner. According him 14 other fishermen whom he represents also are having similar permits. It is stated that on the strength of permits in the nature of Ext.P1, 15 fishermen including the first petitioner, had purchased various quantities of Kerosene and Ext.P2 series are the invoices issued by M/s. M.s.Abraham, the whole sale dealer of Kerosene. 3. According to the Ist petitioner, soon after the purchase was made on 25.10.2008, they transported the kerosene in ten barrels by hiring a mini lorry, bearing WP(c).No.37892/08 2 registration No.KL-04-S-1535 to Mararikulam where their fishing boats were harboured. In the course of transport, the Circle Inspector of Police, Mararikulam stopped the vehicle and seized Kerosene, on the suspecion that the Kerosene was procured and transported in violation of the provisions contained in the Essential Commodities Act, 1955 and the matter was reported to the District Collector. 4. There upon, on behalf of the remaining fishermen and on his own behalf, the first petitioner submitted Ext.P3 to the District Collector, requesting for releasing the kerosene. Orders were not forthcoming and therefore he filed a writ petition before this court as WP(c).No.3367/08 and that writ petition was disposed of by Ext.P4 judgment directing the District Collector to take a final decision in the matter. Thereupon the District Collector issued Ext.P5 notice not only to all the purchasers of the Kerosene but also to the driver and owner of the lorry, who are petitioners 2 and 3 herein. WP(c).No.37892/08 3 5. The recipients of the notice filed objections and Exts.P6, P6(a) and P6(b) are the objections filed by the petitioners. Finally the District Collector issued Ext.P7 imposing penalty of Rs.10,000/- each to the petitioners and others and that order is under challenge. 6. A reading of Ext.P7 shows that the only reason for imposing penalty on the petitioners is the finding that the transportation of Kerosene from Karthikapally Taluk to Arthungal areas, where fishing boats were stated to have been harboured, was without any permit. It on that sole finding that the petitioners and others have been penalized. 7. The contention raised by the counsel for the petitioners is that the Kerosene Control Order, 1968 issued under Section 3 of the Essential Commodities Act, 1955 does not provide any permit for transportation of Kerosene as found in Ext.P7. Though counter affidavit has been filed by respondents 1 and 2, there is no explanation answering this contention. On the other hand according to the aforesaid WP(c).No.37892/08 4 respondents, the reason for Ext.P7 order is that the District Collector was satisfied that the Kerosene was transported for black marketing. So long as such a finding is not there in the impugned order, I am not in a position to take cognizance of such a contention now raised thorough the counter affidavit for the first time. Though I heard the Govt, Pleader also, no provision is shown to me requiring permit for transportation of Kerosene. Therefore, I cannot uphold Ext.P7. Ext.P7 is therefore quashed and the Kerosene will be released to the concerned permit holder on their producing permits by themselves before the 2nd respondent. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.37892/08 5