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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4242 OF 2003
PETITIONER: Shamsuddin S/o Yusufali, Aged about
53 years, occ. Business, R/o Yusufali
Garage, Mohammad Ali Road, Akola,
Tq. And Distt. Akola.
-VERSUS-
RESPONDENTS: 1. The State of Maharashtra Through
ig the Collector, Akola, Tq. And Distt.
Akola.
2. Assistant Commissioner (Supply), Commissionarate, Amravati, Tq. And Distt. Amravati.
3. The Additional Collector, Collectorate, Akola, Tq. And Distt.
Akola.
Shri C. A. Joshi, Advocate for the petitioner.
Shri P. V. Palshikar, Assistant Government Pleader for respondent Nos.1 to 3.
CORAM: SMT. VASANTI A. NAIK
AND A.S. CHANDURKAR JJ.
DATED : 26TH
FEBRUARY, 2016.
ORAL JUDGMENT : (Per A. S. Chandurkar, J)
The petitioner has challenged the order dated 30-11-2002 passed by the respondent No.2 thereby confirming the order dated 13-12-2001 passed by the respondent No.3 imposing a penalty of an amount of Rs.25,000/- on the petitioner.
It is the case of the petitioner that he was awarded a ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:44:51 ::: wp4242.03.odt 2/5 contract for transport of food grains in Akola District. As per said contract which was for a period of one year from 1-8-2001, the petitioner was required to transport Government food grains and other commodities as directed. The remuneration payable to the petitioner was also fixed under the said contract. The petitioner accordingly commenced the transport of food grains. It is his case that there was a practise of four transport passes being handed over to the driver of the vehicle in question. One pass was to be given at the octroi check post, the second pass was to be retained after unloading and the third pass was to be given at the destination where the goods were unloaded. The fourth pass was to be returned to the petitioner's driver for being brought back. On the ground that the fourth pass was not returned immediately by the petitioner, proceedings were initiated by the Food Supply Officer by issuing a show cause notice. The petitioner submitted his reply to the show cause notice and by the order dated 13-12-2001, the Additional Collector passed an order imposing penalty of Rs.25,000/- on the petitioner on the ground that the fourth pass had not been immediately handed over by the representative of the petitioner.
The petitioner filed an appeal before the Assistant Commissioner (Supply), Amravati and by the order dated 30-11-2002, said appeal has been dismissed. These orders are challenged in the present writ petition.
Shri C. A. Joshi, learned Counsel for the petitioner submitted that the respondent No.3 was not justified in imposing ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:44:51 ::: wp4242.03.odt 3/5 penalty on the petitioner. According to him, merely because the fourth copy of the transport pass had not been immediately returned by the petitioner, the same could not be a ground to impose penalty on the petitioner. He submitted that all the commodities had been delivered at the respective destinations and there was no shortfall so as to warrant imposition of any penalty. He also submitted that there was no authority with the respondent No.3 to impose such penalty on the petitioner and in case the impugned orders are set aside, the amount of penalty should be directed to be refunded with interest.
ig Shri A. V. Palshikar, learned Assistant Government Pleader for the respondents supported the impugned orders. According to him, on account of failure on the part of the petitioner to duly return the fourth transport pass, a penalty of an amount of Rs.25,000/- was imposed on the petitioner. He submitted that there was violation of clause No.25 of the contract in question and, therefore, the penalty had been rightly imposed. This aspect was considered by both the authorities and, therefore, there was no reason to interfere with the impugned orders.
Perusal of the contract dated 30-1-2001 indicates that the petitioner had been permitted to transport food grains as per the directions of the respondent No.2. In the contract itself, it has been stipulated that in the case of any shortfall in the delivery of food grains or if any loss is caused to the respondents, the same could be recovered by imposing penalty. There is also a clause for forfeiture of security ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:44:52 ::: wp4242.03.odt 4/5 deposit. In the show cause notice that was issued to the petitioner, it was stated that the petitioner had not submitted about 36 transport passes to the office of the respondent No.2. A reply was submitted by the petitioner in which he had explained that there was no deliberate act on the part of the petitioner in not submitting the transport passes in time. It was also stated that all the goods in question had been duly delivered at the concerned destination and there was no shortfall. The Additional Collector while passing the impugned order dated 13-12-2001 recorded finding that though all the goods in question had been duly delivered at the destination, there was delay in submitting the transport passes. There is no finding recorded that any loss was caused or that there was any shortfall in the goods to be delivered. The authority under which the amount of penalty of Rs.25,000/- was imposed the petitioner has not been indicated therein. Even the appellate Authority has not found that the penalty has been imposed in exercise of any authority conferred on the respondent No.3. Therefore, in absence of any such authority with the respondent No.3 under the contract in question to impose penalty on the petitioner, the said action of imposing penalty is liable to be set aside. It is not the case of the respondents that there was any breach of the terms of the contract on the basis on which action was being taken against the petitioner. Hence, on this count, the action of imposing penalty is liable to be set aside.
It is to be noted that the amount of Rs.25,000/- has been recovered from the petitioner despite the fact that there was an interim ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:44:52 ::: wp4242.03.odt 5/5 order passed in favour of the petitioner on 6-2-2004. As the impugned orders are liable to be set aside and the petitioner is found entitled to receive back the amount of penalty, the same is liable to be repaid at a reasonable rate of interest. In the judgment relied upon by the learned Counsel for the petitioner reported in B. G. & T. I. Ltd. Vs. C. O., Municipal Council 2015 (6) Mh.l.J. 606 on finding that certain amounts were wrongly recovered, a direction to repay the same with simple interest @ 6% per annum was issued.
In view of the aforesaid, the following order is passed:
(1)ig The order dated 30-11-2002 passed by the respondent No.2 as well as the order dated 13-12-2001 passed by the respondent No.3 are quashed and set aside.
(2) The action of imposing penalty of Rs.25,000/- on the petitioner is declared without authority of law. The respondents shall return the amount of Rs.25,000/- to the petitioner within a period of two months alongwith interest @ 6% per annum from 13-12-2001 till its realization.
(3) Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
//MULEY//
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