Himabindu Chemicals (P) Ltd. vs The Joint Collector

M.H.S. Ansari, J.—This Writ Petition is filed seeking a writ in the nature of Certiorari for quashing the impugned proceedings dated 22-5-1996. The impugned proceedings are orders passed u/s 6-A of the E.C. Act, 1955 (for short "the Act"). By the impugned proceedings, the petitioner was found to have violated the conditions laid down in the permit issued by the Commissioner of Civil Supplies by purchasing the rice locally and fraudulently showing it as having been procured from Madhya Pradesh apart from having violated Conditions 4, 7 and 12 of the A.P. Scheduled Commodities (Licensing and Distribution) Order, 1982 and consequently the entire commodity of the seized stock or its equivalent value were directed to be confiscated u/s 6-A of the Act.

A few brief facts need to be stated. The petitioner is a firm which was permitted by various orders of the Commissioner, Civil Supplies to purchase and export 6,000 MTs of Par Boiled Rice to Bangladesh through Andhra Pradesh State Trading Corporation (for short "APSTC"). The petitioner had obtained form ''B'' Licence to store the par boiled rice vide Licence No. EGV/KD/291 /95-96 in the specified godowns. The petitioner firm was permitted to purchase the said par boiled rice from other States i.e., Orissa, Madhya Pradesh and Maharashtra for the purpose of export and on information that the petitioner was indulging in clandestine business of purchasing the par boiled rice locally instead of from outside the State, a surprise check was conducted and apart from the above violation of the permission, certain other irregularities were also noticed and the petitioner was issued a show-cause notice as to why the seized stocks should not be confiscated to Government u/s 6-A of the Act. The petitioner submitted his explanation inter alia that the par boiled rice was purchased by the Company as per the permits issued and returns have been filed from time to time to the concerned local authorities and being subcontractors of APSTC Limited, the provisions of the Control Order, 1982 are not applicable and prayed to drop all the charges and release the stock. The petitioner was issued another show-cause notice dated 4-5-1996 wherein it was inter alia informed to the petitioner that the bills produced in the name of M/s Siddhartha Traders are fake and mere is no firm by that name and that there is a Company by name of Versha Trading Company, Nahar pura, Raipur which obtained FGL No. 880/R valid upto 31-12-1997 and that their office was visited by the Police and the bills submitted produced by the petitioner in the name of Versha Trading Company, even though the FGL Number is the same, there is no firm by that name and that the bills are fake and certain other irregularities with regard to the verification at Check-post by Deputy Tahsildar (CS) are also mentioned therein. The petitioner was asked to offer his explanation to the 2nd show-cause notice and requested to appear in person or offer its explanation on or before 10-5-1997 before the Joint Collector, Kakinada, with the said explanation. The impugned order, however, shows that the petitioner did not appear and filed an application requesting for the report of CI Vigilance and the impugned order was accordingly passed.

A counter-affidavit has been filed on behalf of the respondents while denying the allegations made in the affidavit filed in support of the Writ Petition, and taking up the plea that if the petitioner is aggrieved by the said order, an Appeal u/s 6-c of the Act is available to the petitioner and that the petitioner having failed to avail of the same, the Writ Petition is liable to be dismissed in limini.

It is no doubt true that an Appeal lies u/s 6-c of the E.C. Act against the impugned order which has been passed by the Joint Collector and the petitioner has not availed of the same.

I have therefore heard learned counsel for the petitioner as also the learned Government Pleader for Civil Supplies on the question of maintainability of the Writ Petition when the alternative remedy of Appeal is available to the petitioner in terms of Section 6-c of the Act.

Learned counsel for the Petitioner raised several contentions of law assailing the impugned order on the ground of violation of principles of natural justice, apart from mala fides and on several other grounds which need not be gone into inasmuchas I am considering the question at the threshold about the maintainability of the Writ Petition when the statutory remedy of Appeal is available to the petitioner.

Learned Counsel for the petitioner relied upon State of U.P. v. Mohammad Nooh AIR 1958 SC 86. In the said judgment, it has been held

"the superior Court will rightly issue a Certiorari in case where mere has been denial of natural justice before a Court of summary jurisdiction".

That was a case where a departmental trial against a Police Constable before Deputy Superintendent of Police who conducted the enquiry himself gave a testimony. The Supreme Court also in the same judgment held as follows:

"There is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by Statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved parry has exhausted his other statutory remedies, if any. But the rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law".

Thus, the existence of other adequate legal remedy is not per se a bar to the issue of a Writ of Certiorari and it cannot be said to be an inflexible rule of law that the High Court must deny the Writ in appropriate cases when an inferior court or Tribunal discarded principles of natural justice which shakes the conscience of justice and fair Play. But discretion is, however, vested in the Court and it can take into consideration the existence of alternative remedy and existence of requisite grounds.

Next, learned counsel for the petitioner relied upon A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, which reiterated the principle laid down in the case supra (1) cited, that the existence of other legal remedies were not per se a bar to the issue of a Writ of Certiorari and the Court was not bound to relegate the petitioner to other legal remedies available to him. In arriving at the said result, the Court considered several judgments of the Supreme Court and observed that

"a discretion is vested in the High Court to entertain the petition and grant relief notwithstanding the existence of an alternative remedy, and that the matter is pre-eminently one of discretion and that it would not be desirable to lay down inflexible rules which have to be applied with rigidity in every case which comes up before the Court".

It is thus clear that when an alternative and equally efficacious remedy is open to the petitioner, he should be required to pursue that remedy and not invoke the Special Jurisdiction of the High Court to issue a prerogative writ. The existence of another remedy does not affect the jurisdiction of the court to issue a Writ, but it is a thing to be taken into consideration along with other requisite grounds.

Applying the above principles to the instant case, the first contention of the learned counsel for the petitioner is that the 2nd show-cause notice is dated 4-5-1996 calling upon the petitioner to offer his explanation on or before 10-5-1997, whereas, the impugned order has been passed on 22-5-1996. It is obvious that the year "1997" is a typographical error, surely, it could not be presumed that a notice issued on 4-5-1996 called upon the petitioner to furnish his explanation after one year i.e., 10-5-1997. It could only refer to 10-5-1996. The petitioner had in fact sent a Junior clerk to attend on 10-5-1996, the office of me Joint Collector.

The next contention is that in the 2nd show-cause notice reference has been made to the visit of the Inspector of Police to Raipur and the information furnished by the Addl. Collector and those reports not having been furnished to the petitioner, there has been violation of principles of natural justice. The impugned order shows that on 10-5-1996, the petitioner submitted a representation to the Joint Collector through one P. Vijaya Bhaskar Rao, Junior Clerk of the petitioner-Company stating that in the absence of the report of the Vigilance Inspector, the petitioner would not be able to effectively answer the allegations made in the show-cause notice. The said contention has been considered in the impugned order and in the view that I am taking, it may not be appropriate to further comment upon the same.

From the nature of charges levelled against the petitioner and the accounts required to be maintained by the petitioner as well as the explanation offered by the petitioner, the question is one which is dependant on certain facts to be established, especially about the genuineness of purchases outside the State, various bills, documents as to the transportation of stocks from outside the State to within the State of Andhra Pradesh. The matter is thus one where it may require consideration as to on whom the burden of proof lies and it is in this light, one may have to consider the legality of the impugned order in relation to the principles of natural justice.

It need hardly be stated that the statutory appeal available to the petitioner u/s 6-C of the E.C. Act affords petitioner an adequate opportunity of placing reliance upon such documents as to the petitioner may seem proper for establishing the genuineness of the bills and transport permits, accounts etc., upon which the petitioner relies for establishing its case.

It cannot be denied that the impugned order has been passed by an authority competent u/s 6-A of the Act and requisite grounds do not exist as to warrant the exercise of discretion in favour of the petitioner.

Further more, the questions of fact need to be adjudicated in this matter and the hierarchy of authorities under the Act which have been conferred jurisdiction are but appropriate authorities to adjudicate on facts. The petitioner would have an opportunity of seeking judicial review of the final orders that may be passed thereon by the said authorities. Therefore, the case oh hand, in my opinion, is not an appropriate case where the impugned order should be allowed to be questioned without the petitioner being relegated to the efficacious alternative remedy of appeal available to the petitioner u/s 6C of the E.C. Act.

For the reasons aforestated, I decline to entertain the Writ Petition and dismiss the same at admission stage with liberty to the petitioner to pursue the alternative remedy available to it in law.

It must, however, be clarified that nothing stated in this order shall adversely affect or be used against the petitioner in the proceedings which the petitioner may choose to pursue u/s 6C of the E.C. Act.