At, High Court of Punjab and Haryana
By, THE HONOURABLE MR. JUSTICE AJAY TEWARI
For the Petitioner: R.L. Batta, Senior Advocate with J.S. Saggi, Advocate. For the Respondents: R3, Sushant Maini, DAG, Punjab., J.K. Sibal, Sr. Advocate with Baibhav Prashar, Advocate.
Ajay Tewari, J.
By this petition the petitioner has challenged the orders of seizure and sale. The petitioner is running a flour mill within the notified area of Kharar Mandi. As per his case he was purchasing wheat from outside the notified area of Kharar Mandi, paying market fee thereon and then bringing from within the said notified area to his premises for grinding and subsequent sale.
The market committee seized 185 bags of wheat on 27.6.1991 on the ground that the petitioner had not obtained a licence from the market committee despite having been directed to do so. Thereafter show cause notice dated 28.6.1991 was issued asking the petitioner to show cause up to 2.00 p.m. on the next day why the said wheat should not be confiscated under Section 13(1)(b) of the Punjab Agricultural Produce Markets Act, 1961 (hereinafter referred to as the Act). On 29.06.1991 the petitioner sent a telegram requesting for one week's time. However, on 29.06.1991 the request for grant of time was declined and it was decided to confiscate the said wheat. On 4.7.1991 the petitioner sent a reply to the show cause notice. On receiving this reply a fresh opportunity was granted to the petitioner to show cause on 8.7.1991 by the committee. On that day after hearing the petitioner the confiscation order was upheld and it was ordered that the confiscated wheat wold be auctioned on 11.7.1991 at 10.00 a.m. Learned senior counsel appearing on behalf of the petitioner has very fairly accepted that as per the judgment of M/s JCT Ltd. v. State of Punjab and others CWP No. 5139 of 2003 decided on 16.09.2003 even the act of storage of wheat for purpose of grinding would be covered under the definition of 'dealer' within the scope of Section 6(3) of the Act. He has, however, argued that not only notice was not given to the petitioner before conducting seizure of the goods, the same were also sold in auction whereas there is no provision in the Act for the sale of confiscated goods and there is no power of appropriation of sale proceeds thus making Rule 24-B of The Punjab Agricultural Produce Markets (General) Rules, 1962(hereinafter referred to as the Rules) ultra vires the Act. In this regard this completely uncanalysed power should not be envisaged by the Act.
As regards the first argument, had the reply dated 04.07.1991 not been considered this argument could have been correct. However, it is not disputed that the reply dated 04.07.91 was considered and the petitioner was heard. Resultantly the initial action of the respondents in having issued 24 hours notice (which may have been termed to be unreasoned) was cured by the fact that subsequently the reply filed by the petitioner was considered and he was given an opportunity on 08.07.1991. It would be appropriate to first reproduce Section 13(1)(b) of the Punjab Agricultural Produce Markets Act 1961 as well as Rule 24-B of the Punjab Agricultural Markets Produce(General Rules) 1962 which are as under:-
'S. 13(1)(b) It shall be the duty of a Committee -
(b) to control and regulate the admission to the market, to determine the conditions for the use of the market and to prosecute or confiscate the agricultural produce belonging to person trading without a valid licence'
Rule 24-B Seizure of the agricultural produce:-
(1)The agricultural produce belonging to a person selling without a valid licence shall be liable to be confiscated.
(2)(a) The Secretary of the Committee shall seize the agricultural produce referred to in sub-rule (1) and therefore he shall prepare a seizure memo, of the agricultural produce so seized giving such of the following particulars as may be available on the spot:
(i) Name of the agricultural produce;
(ii) Weight or available description of the vehicle;
(iii) Name of the driver of the vehicle;
(iv) Builty or consignment;
(v) Name of the consignee or consignor;
(vi) Place from where the agricultural produce is seized ; and
(vii) Such other particulars as may be considered necessary.
(b) The seizure memo, shall be signed by the Secretary of the Committee, the driver of the vehicle or the person from whose possession the agricultural produce is seized and if the driver or the person from whose possession the agricultural produce is seized does not sign the seizure memo, it shall be signed by two witness alongwith the signatures of the secretary of the Committee.
(3) The Secretary of the Committee shall inform the chairman of the committee about the seizure referred to in sub-rule (2) for convening a meeting of the Committee or of the sub-committee, as the case may be, for taking a decision regarding its confiscation and the meeting of the committee of the subcommittee, as the case may be, shall be convened within forty – eight hours of the seizure of the agricultural produce:
Provided that the order to confiscate the agricultural produce shall not be made without giving the person concerned an opportunity to show cause as to why such an order should not be made.
(4) The confiscated agricultural produce shall be disposed of in an open auction or in such other manner as may be decided by the Committee and the sale proceeds thereof shall be deposited in the Market Committee Fund.'
Learned senior counsel on behalf of the respondents has argued that since many categories of agricultural produce are inherently perishable the power to confiscate would necessarily imply the power to dispose of the goods to save them from damage due to their perishability. As per learned counsel if this were not so avoidable loss can be caused not only to the person who owns the goods but also to the market committee concerned, since once the produce spoils it would be of no use. In the circumstances the power to confiscate perishable items, as per learned counsel, would carry within it the power to dispose of the same so as to avoid loss. As regards the argument that the power granted was in any case uncanalised, learned senior counsel has argued that the method of auction to dispose of confiscated property is the best option
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where no other method is mentioned and if such goods are disposed of by public auction the said action could never be challenged on the ground that the allegation of mode of disposal is uncanalised and arbitrary. I find myself in agreement with learned counsel for the respondents and, even while holding that the time of 24 hours granted to the petitioner may have been unreasonable, dismiss the petition on the ground that the subsequent action of the respondents in considering the reply of the petitioner was valid and cured the initial unreasonableness and disposing of goods by auction under the provisions of the aforesaid Act is not uncanalised or arbitrary. Petition is dismissed.