STATE OF WEST BENGAL & ORS.versusCALCUTTA HARDWARE STORES AND ORS.

    364

A                     S'lA'D! OP WEST BERGAL & ORS.
                                    v.
                   CALCDrTA llAllWARE S'l'Olll!S & ORS.

                            FEBRUARY 20, 1986

                     [A.P. SEN AND B,C, RAY, JJ,]
B
          Constitution of India - Article 226 - Ad interim exparte
    orders - Grant of - Restraint and circumspection - Necessary.      ....,.

          600 metric tonnes of tin plates worth about Ila. 60 laths      -
    were seized frDll the respondent-firm. Prosecution wu launched
C   by the State Government against the respondents under ss. 7 and
    8 of the Essential eo->clities Act 1955 for violation of
    parqraph 3(2) of the West Bengal Declaration of Stocks and
    Prices of Essential ColllllOdities Order 1977 and under sa.1208
    and 420 of the Indian Penal Code 1860. Show cauae notices for
    confiscation of the seized goods were alao issued by the
D   Additional Collector under a.6A of the Act.                     --

           In the Writ Petition under Article 226 before the High
    Court the respondents moved an application for release of the
    seized goods which wu rejected by a Single Judge. In appeal
    the Divi•ion Bench set aside the interlocutory order of the
E   Single Judge and directed the release of the seized goods to
    the respondent• on their furnishing of a bank guarantee of
    lla.5 laldla in the form of fixed deposit recepits and also on
    furnishing sec1irity of illllovable property being O. 71 acre of
    land aituate at Police Station Titaghur District 24 pargana.

F         Allowing the appeal of the State to this Court,

          lllU>i 1. Although the powers of the High Court under
    Art.226 are far and wide and the Judges mat ever be vigilant
    to protect the citizens against arbitrary executive action,
    noaetheleH, the Judges have a constructive role and
G   therefore, there is always the need to use such extensive
    powers with due circumpection. There has to be in the larger
    public interest an element of self-ordained restraint. It was
    diatresaing that despite a long line of decisions of Supreme
    Court deprecating the cursory manner of passing suc11it-
    interlocutory orders for the mere asking, the High Court -
H
                STATE v, CALCllTrA llARIMARE· STORES        365

                                                                  A
should have passed the impugned order in the 1118111U!r that it
did. [370 C-ll; 367 ~]

      2. 'lbe sd interf.a order of the Division llem:h of the
High Court was illegal and invalid. The result of the order
was that the respondents under threat of contempt secured          B
release of valuable seized uterial practically furnishing
little or uo security. The observations of the Division Bench
which bad the effect of prejudgiug the whole issue before the
Siugle Judge who 'IJU seized of the wr-it petitiou, as alao
foreclosiug the trial of the respondents for c:omieaiou of the
alleged offences bad also uo legality and propriety. [367 C;
367 G-H; 368 A]                                                    C

         Sillgari Jtmidpa\tcy • on. v. Au'lmdn ·nu • On.,
 [1984] 2 s.c.c. 436; Aaaiatant Collector of Central l:a;ia,
Chndn lqar lfeat lleDgal v. llllll1op India r.t. ·Ltd. • Ora.,
 [1985) 1 S.C.C. 260; State of lajatlum ' Ora. Vo '8/a. llllaika
l'l:CljleA"tiea &Anr., [1985) 3 S.C,C. 217; Sil:lgari JtmlcfpaJity, D
ntaaimr hper llil1a eo. Ltd. v. State of 0r1ua. [1983) 2
s.c.c. 433; lJaion of India •· OnaJ. lfoellen ll11l8 Ltd.,
 [1984) 2 S.C.C. 646; IJaion of India v. Jain Slmdh V_,at.i
Ltd., C,A.No. 11450/PJ and 9-ria Tndfng Co. Pwt. I.td. •• .
S. Saoiael, [1984] 4 s.c.c. 666; relied upon.
                                                                   E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 627 of
1986,

     From the Judgment and Order dated 11th December, 1985 of
the Calcutta High Court in F.M.A.T. No. 4053 of 1985,
                                                                   F
        D.N. Mukherjee and H.K. Puri for the Appellants.

      Bhola Nath Sen, Bhasker Sen, B.P. Singh, v. Sheker,    S,
Roy and L.P. Agarwala for the Respondents.

        The Order of the Court was delivered by                    G

      SEN, J. We had allowed the appeal at the conclus.ion of
hearing of January 31, 1986. We now proceed to give the
reasons therefor.

     In this appeal by special leave the short point is as to      H
the legality and propriety of an ad-interim order dated
    366                  SUPREME COURT REPORTS      [1986] l s.c.R.

A
    December ll, 1985 passed by a Division Bench of the Calcutta
    High Court consistiug ·of R.N. Pyne and Aj it Kumar Sen Gupta,
    JJ, setting aside an interlocutory order of Padma Khastgir, J,
    dated November 6, 1985, By the impugned order, the learned
    Judges have directed the release to the respondents of more or
    less 600 metric tonnes of tin plates which, according to the
B   State Government, are worth nearly about Rs,60 lakhs, seized
    from them for alleged contravention of item 24, schedule l to
    the West Bengal Declaration of Stocks and Prices of Essential
    c.,_,.iities Order, 1997 and which, according to the
    respondents, are nothing but waste material, on condition set
    out by them, namely, on the furnishing of bank guarantee of
c   Rs.5 lakhs in the form of fixed deposit receipts and also on
    furnishing security of immovable property being 0.71 acre of
    land situate at Police Station Titaghur, District 24 Pargana.

          The learned Judges while making the impugned order have
    unfortunately made certain observations which seek to prejudge
D   the issues involved in the prosecution launched against the
    respondents by the State Government for committing alleged
    offences punishable under ss.7 and 8·of the Essential Commodi-
    ties Act, 1955 for violation of the mandatory provisions of
    paragraph 3(2) of the West Bengal Declaration of Stocks and
    Prices of Essential Commodities Order, 1977 and of having
E   comuiltted alleged offences punishable under ss.1208 and 420 of
    the Indian Penal Code, 1860. They have gone to the extent of
    observing that the notices for confiscation of the seized
    goods were issued by the Additional Collector, 24 Paragana
    Alipore under s.6A of the Act without any basis in that they
    do not answer the description of tin plates, tin plates waste
F   waste or defective tin free steel sheets and therefore were
    not essential commodities within the meaning of s.2(a) of the
    Act and tbe said Order issued thereunder.

          Looking to the seriousness of the charges and the
    circumstances attendant upon the seizure of the huge quantity
G   of tin plates, the learned Single Judge had very rightly and
    properly refused to grant the application for release of the
    seized goods. It is rather surprising that the learned Judges
    in hearing an appeal from an interlocutory order should have
    passed the impugned order directing release of the seized
    goods without affording an opportunity to the State Government_.r-
H   to file a return to the writ petition. There is material on
              STATE v. CALCUTTA HARWARE STORES [SEN, J.]        367


    record to show that the seized goods are essential commodi-
    ties, namely, Notification No. S0.508(E)/ESS/lron & Steel '-2A
    dated 1.7.1985 issued by the Government of India, Ministry of
    Steel, Mines & Coal, and examination report dated November 13,
    1985 by the Appraiser (Metal Expert).
                                                                       B
            We are greatly distressed that the learned Judges
      despite a long line of decisions of this Court starting from
      Siliguri lbrlcipality & Ors. v. Amalendu Das & Ors. [1984] 2
      s.c.c. 436 to Assistant Collector of Central Excise, <llarulan
      Nagar West Bengal v. Dunlop India Ltd. & Ors. [!985] l s.c.c.
      260, down to State of Rajasthan & Ors. v. K/s Swaika
      Properties &Anr. [1985] 3 S.C.C. 217 deprecating the cursory
      manner of passing such interlocutory orders for the mere
                                                                       c
      asking, should have passed the impugned order in the manner
      that they did. It seens that the pronouncements of this Court
      have had little effect on them. The result "of this has been
      that the respondents under threat of contempt secured release
~~ of such valuable seized material practically furnishing little
                                                                       D
      or no security. We are really amazed that the State Government
 -1 should have been compelled to release the goods as per the
      directions of the learned Judges. What makes it worse is that
      the respondents are facing prosecutions under s.3 read with
      ss. 7 and 8 of the Essential Commodities Act as also under
      ss.!20B and 420 of the Indian Penal Code, and have also been
                                                                       E
      served with a notice by the Additional Collector under s.6A of
      the Act to show cause why the seized material should not be
      confiscated to Government. It is needless to stress that the
      question whether the seize~ goods answer the description of
      tin plates, tin plates waste waste or waste material etc. or
    ~ whether the respondents had committed a contravention of
                                                                       F
      paragraph 3(2) of the West Bengal Declaration of Stocks and
  \· Prices of Essential Commodities Order issued under s.3(1) of
      the Act, which is an offence punishable under ss.7 and 8, are
      all questions to be gone into and tried before the learned
      Special Judge, 24 Paragana, Alipore before whom the trial is
    pending. That apart, the observations Call in question the
                                                                       G
    validity of the action of the Additional Collector in serving
    a notice of confiscation under s,6A of the Act with respect to
    the seized goods. We do not see legality and propriety of
    making these observations by the learned Judges which have
- - the effect of prejudging the whole issue before the learned
    Single Judge who ts seized of the writ petition, as also
                                                                       H
    368                  SUPREME COURT REPORTS      [1986] 1 s.c.R.

A
    forec.losing the trial of the respondents for commission of the
    alleged offences.

          In somewhat similar circumstances, Chinnappa Reddy, J.
    speaking for the Court in llulilop India Ltd. 's case, after
    referring to the earlier decisions in Siligud Municipality,
B   Titaghur Paper Mills Co. Ltd • v. State of Orissa [1983] 2
    S.C.C. 433 Union of India v. Oswal Woollen Mills Ltd. [1984] 2
    S.C.C. 646, Union of India v. Jain Shudh Vanaspsti Ltd. C.A.
    No.11450/83, anci Samaria& Trading Co. Pvt. Ltd. v. s. Sallllel
    [1984] 4 S.C.C. 666, expressed strong disapproval of the
    practice prevailing in the High Court of granting such
c   ad-interim orders which practically have the ef feet of the
    grant of the main relief in the petition under Art. 226 of the
    constitution, and observed :

               "We have come across cases where the collection of
               public revenue has been seriously jeopardised and
D              budgets of governments and Local Authorities aff ir-
               matively prejudiced to the point of precariousness
               consequent upon interim orders made by courts. In
               fact, instances have come to our knowledge where
               Governments have been forced to explore further
               .sources for raising revenue, sources which they
E               would rather well leave along in the public inter-
                est, because of the stays granted by courts. We
                have come across cases where an entire Service is
                left in a stay of flutter and unrest because of
                interim orders passed by courts, leaving the work
                they are supposed to do in a state of suspended
F               animation. We have· come across cases where buses ;
              - and lorries are being run under orders of court
                though they were either denied permits or their -;
                permits had been cancelled or suspended by Trans-
                port Authorities. We have come across cases where
                liquor shops are being run under interim orders of
G               court. We have come across cases where the collec-
                tion of monthly rentals payable by excise contrac-
                tors has been stayed with the result that at the
                end of the year the contractor has paid nothing but
                made his profits from the shop and walked out. We
                have come across cases where dealers in food grain.a •
H               and essential commodities have been allowed to take -
         STATE v. CALClITTA HAR!MARE STORES [SEN, J.]     369

                                                                   A
          back the stocks seized from them as if to , permit
          them to continue to indulge in the very practices
          which were to be prevented by the seizure. We have
          come across cases where .land reform and important
          welfare legislations have been stayed by courts.
          Incalculable harm has been done by such interim          B
          orders. All this is not to say that interim orders
          may never be made against public authorities. There
          are, of course, cases which demand that interim
          orders should be made in the interests of justice.
          Where gross violations of the law and injustices
          are perpetrated or are about to be perpetrated, it
          is the bounden duty of the court .to intervene and       c
          give appropriate interim relief. In cases where
          denial of interim relief may lead to public mis-
          chief, grave irreparable private injury or shake a
          citizen's faith in the' impartiality of public
          administration, a court may well be justified in
          granting interim relief against public au.thority.       D
          But since the law presumes that public authorities
          function properly and bona fide with due regard to
           the public interest, a court must be circumspect in··
          granting interim orders of far-reaching dimensions
          or orders causing administrative, burdonsome incon-
          venience or orders preventing collection of public       E
          revenue fot no better reason than that the parties
          have come to the court alleging prejudice, incon-
          venience or: harm and that a prim facie case has
          been shown. -There can be and there are no hard and
          fast rules. -But prudence, discretion and circums-
          pection are called for. There are several other          F
          vital considerations apart from the existence of a
           prims facie case. There is the question of balance
          of convenience. There is the question of_ irrepara-
           ble injury. There is the question of the public
           interest. There are many such factors worthy of
          consideration."                                          G

     Quite recently, this court in Swaika 'Properties' case
reiterated

          "It is to be deeply regretted that despite a series
          of decisions of this Court deprecattng the practice      H
    370                  SUPREME COURT REPORTS      (19861 l s.c.R.
A
               prevalent in the High Court of passing such
               interlocutory orders for the llM!re asking, the
               learned Single Judge should have passed the
               impugned ad interim ex parte prohibitory order the
               effect of which, as the learned Attorney-General
               rightly complains, was virtually to bring to a
B              standstill a developllM!nt sche.., of the Urban
               ImprovellM!nt Trust, Jaipur viz, Civil Lines
               Extension Sche..,, irrespective of the fact whether
               or not the High Court had sny territorial
               jurisdiction to entertain a petition under Article
               226 of the Constitution. Such arbitrary exercise of
c              power by the High Court at the public expense
               reacts against the developllM!nt and prosperit:y of
               the country and is clearly detrillM!ntal to the
          .'   national interest."

          Although the power of the High Court under Art.226 of the
D   Constitution are far and wide and the Judges must ever be
    vigilant to protect the citizens against arbitrary executive
    action, nonetheless, the Judges have a constructive role and
    therefore there is always the need to use such extensive
    powers with due circumspection. There has to be in the larger
    public interest sn elellM!nt of self-ordained restraint. We hope
E   and· trust that the High Court would hereafter use its powers
    to grant such ad-interim l!X1>&rte orders with greater
    circumspection.

          The appeal must therefore succeed and is allowed. The

F
    order passed by the Division Bench dated December 11, 1985 is
    set aside and that of the learned Single Judge dated November
    6, 1985 dismissing the application for release 'of the seized
    goods is restored. We direct that the High Court shall take
                                                                       .
    illlnediate steps to recover back the seized property from the
    respondents including the two vehicles bearing registration
    nos. USY 6342 and WBQ 6688 if they have been delivered in
G   pursuance of the orders passed by the learned Judges to
    respondents. The respondents shall pay the costs of the
    appellants. Costs quantified at Rs.5,000,


      '                                                                ...
    A.P.J.                                          Appeal allowed.