IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 33908 of 2011(K) ---------------------------------------- PETITIONER(S): ------------------------ P.C.KURIAKOSE, PROPRIETOR, M/S.JOJI CHERIAN COMPANY, MARKET ROAD, ALAPPUZHA. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): -------------------------- THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA,PIN-688 001. BY SR GOVERNMENT PLEADER SMT.M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.33908/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE CERTIFICATE OF REGISTRATION OF THE LORRY. P2 COPY OF THE INVOICE NO.A 1306, DATED 05/09/2011. P3 COPY OF THE PETITION, DATED 19/09/2011, PREFERRED BY THE PETITIONER. P4 COPY OF THE PETITION DATED 23/09/2011 P5 COPY OF THE JUDGMENT DATED 26/09/2011, WP(C)NO.25411/2011. P6 COPY OF THE NOTICE, DATED 27/09/2011. P7 COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, DATED 13/10/2011. P8 COPY OF THE REPORT, DATED 25/10/2011 ISSUED BY THE MOTOR VEHICLES INSPECTOR ALONG WITH COVERING LETTER OF REGIONAL TRANSPORT OFFICE. P9 COPY OF THE PETITION FOR REVIEW, DATED 03/11/2011. P10 COPY OF THE PROCEEDINGS OF THE RESPONDENT, DATED 27/10/2011. P11 COPY OF THE ORDER DATED 15/11/2011 P12 COPY OF THE MODIFIED ORDER DATED 09/12/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. --------------------------------------- W.P.(C) No. 33908 of 2011 ---------------------------------------- Dated this the 19th day of December, 2011 JUDGMENT The challenge in this writ petition is against Ext.P12 in so far as lorry bearing registration No. KL-04 5102 is ordered to be released to the petitioner after remitting 50% of cost of vehicle and after executing an indemnity bond for balance 50% as ordered in Ext.P7. 2. It appears that on 5.9.2011 the above vehicle loaded with food grains was seized by the police and proceedings alleging violation of the provisions of Essential Commodities Act, 1955 were initiated against the petitioner. In such proceedings, Ext.P7 order giving the vehicle on interim custody to the petitioner was passed. However, the benefit of that order was not availed of. Finally, District Collector passed Ext.P10 order confiscating the food grains, and imposing a penalty of ` 5,000/- (Rupees Five thousand only) to the petitioner. This order did not say anything of vehicle. Therefore, contending that the vehicle is liable to be released, the petitioner filed W.P.(C) No. 31770/2011 W.P.C. No. 33908 OF 2011 -2- before this Court. When the writ petition was considered, learned Govt. Pleader submitted that omission in Ext.P10 to deal with the vehicle was a mistake and that a fresh order was being issued. When this submission was made, the petitioner withdraw that petition. 3. Accordingly Ext.P12 order was passed, the operative portion of which reads thus: “Perused the connected records. The explanation of the petitioner is not satisfactory. The charges levelled against the petitioner are evidently proved. The unauthorized storage and transportation of rationed articles for black marketing is the clear violation of clause 3 and 7 9 of E.C. Act 1955 and order 5(a) of KRO 1966. Hence I hereby order to confiscate the seized stock to government and to impose a penalty of Rs. 5000/- to Sri.P.C.Kuriakose. In respect of the vehicle NO. KL04-J.5102 seized, I hereby order to release the vehicle after remitting 50% of the cost of the vehicle at department account head and balance 50% after executing an indemnity bond, as already ordered vide reference 5th cited.” 4. This order is challenged to the extent petitioner is called upon to remit 50% of value of vehicle and to execute an W.P.C. No. 33908 OF 2011 -3- indemnity bond for balance 50% for releasing the vehicle. It is contended that this order is against the the provisions of Section 6 A of Essential Commodities Act, 1955. Section 6 A provides, for confiscation of essential commodities and also any vehicle used in carrying such essential commodity. In respect of vehicle which is held liable for confiscation, as per 2nd proviso to the said Section, the owner is entitled to be given an option to pay fine in lieu of confiscation of vehicle and this provision reads thus: “Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.” 5. Reading of this provisions shows that the maximum that can be levied is the amount not exceeding that market price as on the date of seizure of the essential commodity that is carried by such vehicle. In other words, when this power under the W.P.C. No. 33908 OF 2011 -4- proviso is exercised, the value of the vehicle has no relevance. In that sense to that extent Ext.P12 order cannot be sustained. 6. Further, it is also seen from Ext.P12 that the conditions imposed in Ext.P7 are again imposed Ext.P7 order was passed at the time when proceedings were pending and this order also has no relevance when final orders are passed. 7. For both the aforesaid reasons, Ext.P12 to the extent vehicle is ordered to be released to the petitioner subject to the conditions mentioned, therefore, is quashed. However, the District Collector is still entitled to pass an a correct order and the petitioner cannot go scot-free. Therefore, I direct the District Collector to pass fresh order in the matter duly adverting to the 2nd proviso to Section 6 A of the Act, which is extracted above. This shall be done, as expeditiously as possible, at any rate, within two weeks of receipt of a copy of this judgment along with a copy of the writ petition. ANTONY DOMINIC, JUDGE. Kp/-