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In Re : Satish Chandra Banik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1983CriLJ491
AppellantIn Re : Satish Chandra Banik
Cases ReferredAbanindra Kumar v. A. K. Biswas
Excerpt:
- .....of 1980 directing confiscation of a certain quantity of sugar in exercise of his power under the essential commodities act.2. the petitioner is a partner of a firm dealing in grocery cum stationery articles for which the firm has obtained a licence from the appropriate authority, in course of a search and raid held on 6-11-1979 an inspector of police of the enforcement branch seized 58 bags of sugar and found the actual stock not to agree with the entries in the stock register. thereupon a case being belgharia p.s. case no. 12 dated 6-11-1979 under section 7(1)(a)(ii) of the essential commodities act was started against the petitioner and his other partners for violation of para 3 (2) of the declaration of stock and price of essential commodities order, 1979 and para 3 of sugar (price.....
Judgment:
ORDER

B.C. Chakrabarti, J.

1. This is an application under Article 227 of the Constitution of India and is directed against an order dated 5-3-1982 passed by the Additional District Magistrate, 24-Parganas in Misc. Case No. 15 of 1980 directing confiscation of a certain quantity of sugar in exercise of his power under the Essential Commodities Act.

2. The petitioner is a partner of a firm dealing in grocery cum stationery articles for which the firm has obtained a licence from the appropriate authority, in course of a search and raid held on 6-11-1979 an Inspector of Police of the Enforcement Branch seized 58 bags of sugar and found the actual stock not to agree with the entries in the Stock Register. Thereupon a case being Belgharia P.S. Case No. 12 dated 6-11-1979 under Section 7(1)(a)(ii) of the Essential Commodities Act was started against the petitioner and his other partners for violation of para 3 (2) of the Declaration of Stock and Price of Essential Commodities Order, 1979 and para 3 of Sugar (Price Control) Order 1979. Thereafter a confiscation proceeding under Section 6A of the Essential Commodities Act. 1955 was initiated and a notice was issued upon the petitioner and his partner directing them to show cause, if any. The petitioner and his partner filed written objection but the S. D. O., Barrackpur by his order dated Sept. 30, 1980 directed confiscation and sale of the entire stock of sugar. Being aggrieved at the order the petitioner preferred an appeal under Section 6-C of the Essential Commodities Act before the Judicial Authority being the Sessions Judge, 24-Parganas at Alipore. The appeal was allowed. The order for confiscation and sale was set aside and the matter was remitted back to the S. D. O., Barrackpur for fresh proceeding from the stage of the notice. Thereafter a notice of confiscation dated 8-4-1981 was again issued. The notice is alleged to be defective in material particulars and is otherwise bad in law. The date of hearing in the said case was however shifted from time to time and was finally fixed for hearing on 5-3-1982. The petitioner's lawyer who was entrusted to look after the case having fallen ill on the said date, could not participate at the hearing as a result whereof the case was heard ex parte to the prejudice of the petitioner. The petitioner contends that he came to know about the order of confiscation from his lawyer only in the first week of Aug. 1982 and hence he could not take any steps in regard to the order for confiscation at an earlier date. The order is alleged to be illegal, defective and without jurisdiction.

3. The petitioner, therefore. prays for setting aside the said order.

4. The application has been heard upon notice to and on contest by the State.

5. The application, it appears is liable to fail on the preliminary ground namely, that the proper remedy Of the petitioner lay in an appeal under Section 6C of the Essential Commodities Act. He is not entitled to circumvent that provision and invoke the extraordinary jurisdiction provided by Article 227 of the Constitution. In the instant case the Essential Commodities Act provides a remedy available to the petitioner by way of an appeal and the petitioner is aware of such provisions. In fact, once before the petitioner had preferred an appeal against the order and the Appellate Court directed a remand of the matter. There being a specific provision for challenging the correctness of the order by way of an appeal, it seems the extraordinary jurisdiction of this Court with the aid of Article 227 cannot be invoked. It was argued on behalf of the petitioner that even where an alternative remedy is available the petitioner may yet apply under Article 227 where there is an erroneous exercise of jurisdiction and abuse of the process of law. In support of this contention reliance was placed on a decision of this -court in the case of Abanindra Kumar v. A. K. Biswas : AIR1954Cal355 . There the question for consideration was whether the procedure adopted in a certificate proceeding was warranted by law and if not whether redress could be sought by way of an application under Article 22227 of the Constitution. It was argued in that case by the senior Government pleader that it was open to the petitioner to file an appeal under Section 51 of the Public Demands Recovery Act and that he could have obtained his relief under that section. It was observed that it was difficult to find out any order from the order sheet of the Certificate Officer against which the petitioner could have appealed to obtain the relief which he was asking for. In the instant case before me there is no such difficulty. The petitioner knows what is the order complained against what is the remedy available to him. Again in the decision relied on by the petitioner there is an observation that the certificate debtor might institute a suit under Section 34 of the Public Demands Recovery Act for cancellation of the certificate but the existence of an alternative remedy like a suit, it was held, did not preclude the petitioner from seeking relief under Article 227 provided that alternative relief is not as speedy or effective as an application under Article 227. In the instant case there is no question of petitioner seeking relief by way of a suit. His specific remedy is by way of an appeal. By no stretch of imagination can it be said that the petitioner was at a loss to find out against which order he was to move the Appellate Court. That being the position the decision relied on can be of no avail to the petitioner.

6. While it is true that in exceptional circumstances the jurisdiction under Article 227 can be invoked in spite of the existence of a specific alternative remedy, the petitioner has failed to make out such an exceptional case. The only exceptional case made out is the alleged delay in coming to know of the ultimate order that was passed on 5-3-1982 impugned in this revisional application, it is however, not the case of the petitioner that the date of hearing was not known to him. All that is said is that his lawyer suddenly fell ill on that day and as such could not attend at the hearing. It is nowhere stated what prevented the petitioner from ascertaining from his lawyer or otherwise as to the fate of the proceeding. It is merely stated that the petitioner came to know of it in the first week of August, 1982. By that time obviously the period of limitation for preferring the appeal had run out. I am satisfied that had it not been so the question of moving this Court under Article 227 of the Constitution instead of preferring an appeal under Essential Commodities Act could never arise. Therefore the only exceptional circumstance for invoking this jurisdiction as pleaded is the delay which again is found to have been the result of the petitioner's own laches and negligence. The extraordinary jurisdiction cannot be invoked in aid of a party who sleeps over his rights known to him. I find that the present application is therefore misconceived and must fail. The application is accordingly dismissed.


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