MAHESH KUMAR GUPTA Vs. COLLECTOR SHIVPURI

JUDGEMENT

(1.) This is a petition under article 226/227 of the Constitution of India for quashing the order of the Collector Shivpuri, Annexure P-i. It has further been prayed that a direction be given to the State of M.P. for final decision of the appeal pending before it and for maintaining status quo during the pendency of the appeal. The allegations are that the petitioner carried on business of food grains and oil-seeds at Karera (district Shivpuri) under a valid licence No. 752/95 in the name of firm Dinesh Kumar Mahesh Kumar. At 9 P.M. on 17.6.96 the Assistant Food Officer and Food Inspector stopped Metador registration No. MP 07 G 1009 and detected certain irregularities as detailed in para 5, of the petition. A show cause notice dated 5.7.1996 was issued to him for the violation of item No. 8 and 15 of Madhya Pradesh Anusuchit Vastu (Anugyapan tatha Jamakhori Par Nirbhandan) Aadesh, 1991 (hereinafter referred to as the Order 1991), Para 3, Annexure P-2. The Collector passed an order purporting to act u/s 6-A of the Essential Commodities Act for following the procedure prescribed by law and directed confiscation of mustard seeds of the value of Rs. 20,000/- vide Annexure P-3. An appeal was preferred by the petitioner against the said order to the State Government on 9.9.1997 which is still pending. Along with that appeal an application for stay (Annexure P-5) was also moved but no order has been passed A notification was issued on 3. 10. 1997 under which provision has been made for an appeal before the District Judge. However, no provision was made for pending appeals. The petitioner was, therefore, deprived of a legal remedy. Hence he preferred this petition

(2.) Learned Counsel for the petitioner contended that originally there was in Essential Commodities Act, 1955, in which Section 6-C made a provision for appeal under which appeal lay before the judicial authority appointed by Government which was amended by the Essential Commodities (Special Provisions) Act, 1981. Under this Essential Commodities (Special Provisions) Act, 1981, Section 6-C was amended and instead of judicial authority the State Government concerned was invested with the appellate power. This Act ceased to operate after the period for which it was enacted Learned Counsel further contended that an Ordinance has been issued which came into force on 3.10.1997. Under this Ordinance the position which existed prior to the enforcement of the Essential Commodities (Special Provisions) Act, 1981, was restored. Consequently, after this date the appellate powers conferred upon judicial authority under the original Act stood revived. There is no provision under the Ordinance with respect to pending appeals. The learned Counsel, therefore, contends that in view of the provisions of Section 6 of the General Clauses Act the authority which had jurisdiction to hear the appeal prior to the enforcement of the Ordinance continued to have the authority to hear and decide all the appeals pending before it. In this connection the learned Counsel pressed into service a decision of this Court reported in Kapoor Chand v. State of M.P.1. Consequently, it is the State Government who has to hear and decide the appeal pending before it as it has not been heard and decided, the petitioner had to approach this Court. Learned Additional Advocate General, Shri R.K. Vashishtha, on the other hand, frankly conceded the legal proposition. The original Act i.e. the Essential Commodities Act, 1955, stood restored subject to the amendments made in the Ordinance itself. There is no provision in the Ordinance relating to pending appeals or Section 6-C as such. Thus, the power of the appellate Court conferred upon the judicial authority in the original Act stood restored but the appeals which are pending before the State Government under the law which stood prior to the coming into force of Ordinance 1997 have to be heard by the State Government.

(3.) I have carefully considered the contentions raised before me. It is crystal clear from the Ordinance issued in the year 1997 which came into force on 3.1 0.1997 that during the period of this Ordinance the Essential Commodities Act, 1955, shall have effect subject to the amendments specified in Sections 3 to 11. The amendments specified In Sections 3 to 11 do not show that any amendment has been made in Section 6-C of the original Act, 1955. Consequently the appellate authority which stood in the original Act, 1955, is revived. In the original Act the appellate powers are conferred upon any judicial authority appointed by the State Government concerned. As the powers of the judicial authority so appointed was taken away by the Essential Commodities (Special Provisions) Act, 1981, the appellant had preferred an appeal before the State Government as contended by the learned Counsel for the petitioner and which is pending. The State Government according to the learned Counsel has not disposed of the appeal. Consequently, it is a case where the authority invested with the power has not performed its duty. Consequently the petition has to be allowed and a direction has to be given to the State Government to decide the appeal pending before it at the time of enforcement of the Ordinance of 1997 in accordance with law. The petitioner, therefore, succeeds. It is directed that the State Government shall dispose of the appeal pending before it on the date of the enforcement of the Ordinance i.e. The Essential Commodities (Special Provisions) Ordinance, 1997, expeditiously, if possible, within three months from the date copy of this order is presented before it. During this period it shall also dispose of the stay application of the petitioner. However, no action for auction shall be taken for a period of 10 days from today during which the stay application shall be disposed of by the State Government. Petition allowed.