1. At the stage of preliminary hearing Sri M. R. Achar, learned Government Advocate was directed to take notice on behalf of the respondents. Accordingly, he has put in appearance for the respondents.
2. In these petitions under Arts. 226 and 227 of the Constitution, the petitioners have sought for a declaration that the seizure and consequential proceedings held pursuant thereto are illegal and without jurisdiction. They have also sought for issue of a direction to the respondents to release the seized commodities.
3. The different quantities of paddy and rice were seized from the premises of the petitioners. Pursuant to the seizure, the first respondent has also passed orders on 17-3-1984, produced as Annexures A, B and C under S. 6A(2) of the Essential Commodities Act (hereinafter referred to as the 'Act'), directing the seized commodities to be taken towards levy by the KFCSC Ltd./FCI, shimoga and the amount thereof be deposited in the P.D. Account of the Deputy Commissioner.
4. It is contended on behalf of the petitioners that there is no seizure effected; that without the seizure the proceedings initiated against the petitioners under Section 6A of the Act are without jurisdiction; that the order directing disposal of the seized commodities under S. 6A(2) of the Act can be passed only on being satisfy by the Deputy Commissioner that there is a prima facie case for proceeding under S. 6A of the Act, that the commodities were seized are subject to speedy and natural decay or it is otherwise expedient in the public interest so to do. It is submitted that no such findings are either separately recorded are apparent from the impugned orders in question. It is also further contended that the seized commodities - if at all the same are to be disposed of pending final decision in the case - cannot be disposed of by directing that the same be taken towards levy; that in such an event the seized commodities can be disposed of only in the manner it is done by the 1st respondent under the impugned orders, it is contended, does not fall in any one of the modes mentioned in S. 6A(2) of the Act. The 'purchase price' otherwise known as levy price or levy rate at which the seized commodities are directed to be disposed of cannot be equated either to the controlled price or to the price to be paid under the proviso to S. 6A(2) of the Act.
5. On the contrary, it is contended by Sri Achar, learned Government Advocate that pursuant to the seizure only the proceedings under S. 6A of the Act have been initiated by the Deputy Commissioner, therefore, the contention of the petitioners that there is no seizure does not call for consideration or at any rate it is submitted that it is a matter for the Deputy Commissioner to decide under S. 6A(1) of the Act as it is a question of fact. It is also further contended that once there is a seizure and initiation of the proceeding under S. 6A of the Act, the Deputy Commissioner gets jurisdiction to dispose of the seized commodities as per S. 6A(2) of the Act and the impugned orders do fall under S. 6A(2) of the Act; that the impugned orders of the Deputy Commissioner are not happily worded, and the effect of the same is not to take the seized commodities towards levy; but to dispose them of at the levy rate, in other words at the 'purchase price'. Learned Government Advocate has also tried to bring the impugned orders within the scope of the proviso to S. 6A(2) of the Act and has contended that a direction to take the seized commodities towards the levy in substance amounts to a direction to dispose of the same through the fair price shops at the retail sale price.
6. Having regard to the aforesaid contentions, the following points arise for consideration :
1. Whether it is necessary to go into the contention of the petitioners that there is no seizure
2. Whether, before initiating a proceeding under S. 6A of the Act it is necessary for the Deputy Commissioner to be satisfied that there is a prima facie case
3. Whether before passing the order under S. 6A(2) of the Act, it is necessary for the Deputy Commissioner to record a finding in terms of S. 6A(2) of the Act
4. Whether it is necessary to afford an opportunity of being heard to the affected party at the stage of directing the seized commodities to be disposed of in one of the modes prescribed by S. 6A(2) of the Act
5. Whether the impugned orders fall within the proviso to S. 6A(2) of the Act
6. What order
Point No. 1 :
7. The impugned orders to mention that the Tahsildar on seizure has reported the matter to the Deputy Commissioner. The Tahsildar being one of the enforcement officers has the authority to effect seizure. It is on the report of seizure, made by the Tahsildar, of the commodities in question, the Deputy Commissioner has initiated the proceedings under S. 6A of the Act. Whether in fact there is a seizure or not is a matter which can be verified by the Deputy Commissioner. In fact the seizure of essential commodity in pursuance of an order made under S. 3 of the Act in relation to such essential commodity, is the foundation for the initiation of the proceeding under S. 6A of the Act. As such, if such a contention is raised before the Deputy Commissioner, he has an undoubted jurisdiction to decide the same. Therefore, this contention is left open to be urged before the Deputy Commissioner.
Point No. 2 :
8. A proceeding under S. 6A of the Act can be initiated by the Deputy Commissioner only on receipt of the report of seizure of the essential commodity for the contravention of the