Bombay High Court
Shamsuddin S/O Yusufali vs State Of Maharashtra And 2 Ors on 26 February, 2016
Bench: V.A. Naik
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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
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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
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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
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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
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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:
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//
