State of Madhya Pradesh Vs. Deena Nath Kedarnath - Court Judgment

Excerpt:
- madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - 4. the application filed before the judicial magistrate by the non-applicant for payment of interest was clearly beyond the competence of the court and was not maintainable and therefore dismissal of that application by the judicial magistrate was in accordance with law.orderp.p. naolekar, j.1. the non-applicant deena nath was prosecuted under section 3(1) read with section 3/7 of the essential commodities act, 1955 in the court of the judicial magistrate, first class, betul along with the driver. by order dated 3-4-1976 the driver was acquitted and the non-applicant deena nath was convicted and sentenced to till rising of the court. the court had given direction for return of the truck and the wheat which was seized. against the order the non-applicant preferred an appeal. the appellate court acquitted the non-applicant from the sentence of till rising of the court. so far as return of the seized goods, the appellate court maintained the order of the trial court. the state preferred an appeal under section 377 of the code of criminal procedure for enhancement of the sentence in this court was registered as criminal appeal no. 585 of 1976 against the order of the judicial magistrate and this court on 11-4-1980 dismissed the appeal preferred by the state. in the meanwhile on 1-12-1976 the collector passed an order under section 6a of the essential commodities act, 1955 for confiscation of 100 bags of wheat. the non-applicant preferred an appeal against the said order of the collector and in criminal appeal no. 6 of 1977 vide order dated 17-3-1977 the order of confiscation of 100 bags of wheat was maintained by the sessions judge. in pursuance of the order passed by the judicial magistrate and affirmed in appeal, the truck was returned back and the price of 100 bags of wheat, i.e. rs. 17,293.10 was given to the non-applicant by the collector on 28-11-1985. thereafter, on 4-7-1988 the non-applicant wrote a letter to the collector claiming interest on the amount of rs. 17,293.10, which was refunded on 28-11-1985. on 29-5-1990 the non-applicant moved an application under section 6c(2) of the essential commodities act, 1955 before the judicial magistrate for issuing a direction to the collector for payment of interest at the rate of 12% for the period 30-12-1973 to 4-12-1985 on the amount of rs. 17,293.10 and the judicial magistrate by order dated 27-2-1992 dismissed that application on the ground that there was no order passed either by the judicial magistrate or in the criminal appeal in pursuance of which the price of 100 bags of wheat seized was given for payment of interest. the non-applicant deena nath then preferred a revision in the court of additional judge to the court of sessions judge, betul which was registered as criminal revision no. 26 of 1992. the revisional court by its order dated 11-11-1992 allowed the revision petition filed by the non-applicant deena nath and remanded the matter back to the judicial magistrate for consideration of the question of payment of interest to the non-applicant. aggrieved by the said order, the state has preferred this revision petition.2. the question involved in this revision is whether the judicial magistrate while exercising powers under section 3/7 of the essential commodities act, 1955 has jurisdiction and authority to award interest under section 6c. under section 3 of the act the power is vested in the state government to control and regulate by licence, permits or otherwise the storage, transportation, distribution, disposal, acquisition, use or consumption of any essential commodity for the purpose of maintaining or increasing supplies of or for equitable distribution at fair prices. section 7 of the act provides for punishment for contravention of any order made under section 3 of the act. section 7 is comprehensive code covering the entire field of offences under the act. the power to punish vests with the court whereas power of confiscation of essential commodities vests with the collector. under section 6a where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, power of confiscation can be exercised by the collector, after issuing show cause notice and giving opportunity of making a representation in writing and giving reasonable opportunity of being heard, as provided under section 6b of the act. section 2(ia) defines collector. section 6c provides for appeal against the order of confiscation. under section 6a(2) the collector gets authority to dispose of the property seized, if the property is subject to speedy and natural decay. sub-section (3) of section 6a provides that when an essential commodity is sold, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall be paid to the owner thereof or the person from whom it is seized, on any of the eventualities mentioned in sub-clauses (a), (b) and (c) of sub-section (3) of section 6a, i.e., where no order of confiscation is ultimately passed by the collector, where an order passed on appeal under sub-section (1) of section 6c so requires; or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted. the power to make payment for the goods seized, under this section, is with the collector, after deducting the expenses incurred in the sale or auction of the property or any incidental expenses relating thereof. section 6c provides for appeal against an order passed under section 6a for confiscation of the essential commodity and sub-section (2) of section 6c provides for payment of interest and price of the essential commodity. sub-section (2) of section 6c reads as under :-6-c. appeal. -(1) *** ***(2) where an order under section 6a is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6a, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized, such person shall except as provided by sub-section (3) of section 6a be paid, the price therefor as if the essential commodity had been sold to the government, with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined -(i) in case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3-b) of section 3;(ii) in the case of sugar, in accordance with the provisions of sub-section (3-c) of section 3; and(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.3. under the above provisions, when an order of confiscation is annulled or when prosecution for breach or violation of the provisions of the order has ended in acquittal of the person and when the property seized is not possible to be returned, the person shall be paid the price of the goods with reasonable interest, as if such property is sold to the government. the price to be paid for such goods is fixed in case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3-b) of section 3; in case of sugar, in accordance with the provisions of sub-section (3-c) of section 3; and in case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3. thus, the person entitled to have the price of the essential commodity seized with reasonable interest in two eventualities: (i) when the order of confiscation is set aside in appeal; and (ii) when the prosecution launched against the person has ended in his acquittal. payment of the price of the essential commodity and interest therefor shall be payable only if the order of confiscation is set aside or the person concerned is acquitted. the order of acquittal is sine qua non for payment of price and reasonable interest. the words 'such person shall, except as provided by sub-section (3) of section 6a be paid the price therefor' in section 6c are significant and material, particularly the words 'be paid'. under this section a duty is imposed to make payment and a right is created to get payment of the price of the essential commodity and reasonable interest therefor. duty to make payment can only be discharged by an authority who actually holds the goods and who has power to sell the goods. this section does not speak about a direction or order to make payment, but the emphasis is on the words 'be paid' which means a duty is to be discharged by making payment. under the scheme of the essential commodities act, the power to seize essential commodities, confiscate them and sell it is with the collector and not with the courts. exclusion of jurisdiction of ordinary criminal courts can be brought about by setting up tribunals or authority having limited jurisdiction in limited fields. a reading of the relevant provisions of the essential commodities act. 1955, it is clear that there are two different authorities created viz., one for trial of offences and another for seizure of essential commodities, passing of order of confiscation and to dispose of the essential commodities. the power to dispose of the essential commodity vests with the collector and, therefore, payment of the price and interest on the price of the essential commodity, in case of acquittal of the person or in case of order of confiscation being set aside, is that of the collector and not of the judicial magistrate. as the collector is the authority to make payment of the price of the essential commodity illegally confiscated, the application for refund of the price with reasonable interest thereon shall lie to the collector and not to the judicial magistrate. the judicial magistrate does not have any power under section 6c of the act to direct repayment of the price or reasonable interest thereon.4. the application filed before the judicial magistrate by the non-applicant for payment of interest was clearly beyond the competence of the court and was not maintainable and therefore dismissal of that application by the judicial magistrate was in accordance with law. consequently, the direction given by the revisional court for disposing of the application for payment of reasonable interest to the non-applicant is not in accordance with law. courts cannot create jurisdiction in itself when there is no such jurisdiction given under the statute. consequently, this revision is allowed and the order of the revisional court remanding the matter back for fresh consideration is set aside. as a result thereof, the application moved by the non-applicant in the court of the judicial magistrate, first class, betul for direction to the collector, betul to make payment of interest stands dismissed.

Judgment:
ORDER

P.P. Naolekar, J.

1. The non-applicant Deena Nath was prosecuted under Section 3(1) read with Section 3/7 of the Essential Commodities Act, 1955 in the Court of the Judicial Magistrate, First Class, Betul along with the driver. By order dated 3-4-1976 the driver was acquitted and the non-applicant Deena Nath was convicted and sentenced to till rising of the Court. The Court had given direction for return of the truck and the wheat which was seized. Against the order the non-applicant preferred an appeal. The appellate Court acquitted the non-applicant from the sentence of till rising of the Court. So far as return of the seized goods, the appellate Court maintained the order of the trial Court. The State preferred an appeal under Section 377 of the Code of Criminal Procedure for enhancement of the sentence in this Court was registered as Criminal Appeal No. 585 of 1976 against the order of the Judicial Magistrate and this Court on 11-4-1980 dismissed the appeal preferred by the State. In the meanwhile on 1-12-1976 the Collector passed an order under Section 6A of the Essential Commodities Act, 1955 for confiscation of 100 bags of wheat. The non-applicant preferred an appeal against the said order of the Collector and in Criminal Appeal No. 6 of 1977 vide order dated 17-3-1977 the order of confiscation of 100 bags of wheat was maintained by the Sessions Judge. In pursuance of the order passed by the Judicial Magistrate and affirmed in appeal, the truck was returned back and the price of 100 bags of wheat, i.e. Rs. 17,293.10 was given to the non-applicant by the Collector on 28-11-1985. Thereafter, on 4-7-1988 the non-applicant wrote a letter to the Collector claiming interest on the amount of Rs. 17,293.10, which was refunded on 28-11-1985. On 29-5-1990 the non-applicant moved an application under Section 6C(2) of the Essential Commodities Act, 1955 before the Judicial Magistrate for issuing a direction to the Collector for payment of interest at the rate of 12% for the period 30-12-1973 to 4-12-1985 on the amount of Rs. 17,293.10 and the judicial Magistrate by order dated 27-2-1992 dismissed that application on the ground that there was no order passed either by the Judicial Magistrate or in the Criminal Appeal in pursuance of which the price of 100 bags of wheat seized was given for payment of interest. The non-applicant Deena Nath then preferred a revision in the Court of Additional Judge to the Court of Sessions Judge, Betul which was registered as Criminal Revision No. 26 of 1992. The Revisional Court by its order dated 11-11-1992 allowed the revision petition filed by the non-applicant Deena Nath and remanded the matter back to the Judicial Magistrate for consideration of the question of payment of interest to the non-applicant. Aggrieved by the said order, the State has preferred this revision petition.

2. The question involved in this revision is whether the Judicial Magistrate while exercising powers under Section 3/7 of the Essential Commodities Act, 1955 has jurisdiction and authority to award interest under Section 6C. Under Section 3 of the Act the power is vested in the State Government to control and regulate by licence, permits or otherwise the storage, transportation, distribution, disposal, acquisition, use or consumption of any essential commodity for the purpose of maintaining or increasing supplies of or for equitable distribution at fair prices. Section 7 of the Act provides for punishment for contravention of any order made under Section 3 of the Act. Section 7 is comprehensive Code covering the entire field of offences under the Act. The power to punish vests with the Court whereas power of confiscation of essential commodities vests with the Collector. Under Section 6A where any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, power of confiscation can be exercised by the Collector, after issuing show cause notice and giving opportunity of making a representation in writing and giving reasonable opportunity of being heard, as provided under Section 6B of the Act. Section 2(ia) defines Collector. Section 6C provides for appeal against the order of confiscation. Under Section 6A(2) the Collector gets authority to dispose of the property seized, if the property is subject to speedy and natural decay. Sub-section (3) of Section 6A provides that when an essential commodity is sold, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall be paid to the owner thereof or the person from whom it is seized, on any of the eventualities mentioned in sub-clauses (a), (b) and (c) of sub-section (3) of Section 6A, i.e., where no order of confiscation is ultimately passed by the Collector, where an order passed on appeal under sub-section (1) of Section 6C so requires; or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted. The power to make payment for the goods seized, under this section, is with the Collector, after deducting the expenses incurred in the sale or auction of the property or any incidental expenses relating thereof. Section 6C provides for appeal against an order passed under Section 6A for confiscation of the essential commodity and sub-section (2) of Section 6C provides for payment of interest and price of the essential commodity. Sub-section (2) of Section 6C reads as under :-

6-C. Appeal. -(1) *** ***(2) Where an order under Section 6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under Section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized, such person shall except as provided by sub-section (3) of Section 6A be paid, the price therefor as if the essential commodity had been sold to the Government, with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined -

(i) in case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3-B) of Section 3;

(ii) in the case of sugar, in accordance with the provisions of sub-section (3-C) of Section 3; and

(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of Section 3.

3. Under the above provisions, when an order of confiscation is annulled or when prosecution for breach or violation of the provisions of the order has ended in acquittal of the person and when the property seized is not possible to be returned, the person shall be paid the price of the goods with reasonable interest, as if such property is sold to the Government. The price to be paid for such goods is fixed in case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3-B) of Section 3; in case of sugar, in accordance with the provisions of sub-section (3-C) of Section 3; and in case of any other essential commodity, in accordance with the provisions of sub-section (3) of Section 3. Thus, the person entitled to have the price of the essential commodity seized with reasonable interest in two eventualities: (i) when the order of confiscation is set aside in appeal; and (ii) when the prosecution launched against the person has ended in his acquittal. Payment of the price of the essential commodity and interest therefor shall be payable only if the order of confiscation is set aside or the person concerned is acquitted. The order of acquittal is sine qua non for payment of price and reasonable interest. The words 'such person shall, except as provided by sub-section (3) of Section 6A be paid the price therefor' in Section 6C are significant and material, particularly the words 'be paid'. Under this section a duty is imposed to make payment and a right is created to get payment of the price of the essential commodity and reasonable interest therefor. Duty to make payment can only be discharged by an authority who actually holds the goods and who has power to sell the goods. This section does not speak about a direction or order to make payment, but the emphasis is on the words 'be paid' which means a duty is to be discharged by making payment. Under the scheme of the Essential Commodities Act, the power to seize essential commodities, confiscate them and sell it is with the Collector and not with the Courts. Exclusion of jurisdiction of ordinary criminal Courts can be brought about by setting up Tribunals or authority having limited jurisdiction in limited fields. A reading of the relevant provisions of the Essential Commodities Act. 1955, it is clear that there are two different authorities created viz., one for trial of offences and another for seizure of essential commodities, passing of order of confiscation and to dispose of the essential commodities. The power to dispose of the essential commodity vests with the Collector and, therefore, payment of the price and interest on the price of the essential commodity, in case of acquittal of the person or in case of order of confiscation being set aside, is that of the Collector and not of the Judicial Magistrate. As the Collector is the authority to make payment of the price of the essential commodity illegally confiscated, the application for refund of the price with reasonable interest thereon shall lie to the Collector and not to the Judicial Magistrate. The Judicial Magistrate does not have any power under Section 6C of the Act to direct repayment of the price or reasonable interest thereon.

4. The application filed before the Judicial Magistrate by the non-applicant for payment of interest was clearly beyond the competence of the Court and was not maintainable and therefore dismissal of that application by the Judicial Magistrate was in accordance with law. Consequently, the direction given by the revisional Court for disposing of the application for payment of reasonable interest to the non-applicant is not in accordance with law. Courts cannot create jurisdiction in itself when there is no such jurisdiction given under the statute. Consequently, this revision is allowed and the order of the revisional Court remanding the matter back for fresh consideration is set aside. As a result thereof, the application moved by the non-applicant in the Court of the Judicial Magistrate, First Class, Betul for direction to the Collector, Betul to make payment of interest stands dismissed.