ORAL JUDGMENT

1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by the Deputy Secretary, Food and Civil Supply, State of Gujarat dtd.28/7/1995 in Appeal No.454 of 1993 in dismissing the same and confirming the order passed by the Deputy Collector, Gondal dtd.30/6/1993 in confiscating the good worth Rs.1,02,884=00 under the provisions of the Gujarat Essential Articles (Licensing,Control and Stock Declaration) Act, 1981 (hereinafter referred to as “the Act” for convenience).

2. The petitioner was having a license to run the fair price shop at Village Gondal, Taluka Gondal under the provisions of Act and there was inspection carried out by the Mamlatdar, Gondal on 27/2/1993 and it was found that the license which was valid up to 31/12/1991 has not been renewed after 31/12/1991, no Stock Register is kept at the place of the business and no Stock Register is produced, Board mentioning the price and other particulars as regards stock etc. has not been maintained, the particulars / statements which were required to be sent to the licensing authority are not produced. For the aforesaid allegations / irregularities and mal-practices, the petitioner was served with a Show Cause Notice asking him as to why the stock ceased should not be confiscated on the ground that there is a breach of Licensing Order. The petitioner replied the said Show Cause Notice pointing out inter-alia that at the relevant time the stock of food grain, pulse and sugar kept by the petitioner was below the permissible limits for getting license and therefore, the petitioner was not required to obtain the license and therefore, the license in question was not got renewed by the petitioner. It was also submitted by the petitioner with regard to maintenance of Stock Register that prior to two days of the surprise visit i.e. on 25/2/1993, there was Cyclone and the petitioner had proceeded to his house along with Stock Register. However, when the petitioner reached his home, it was found that the said register is lost and before the petitioner could give any advertisement in the news paper with regard to missing of the said register, the petitioner got information that there is a surprise checking on 27/2/1993 and therefore, the petitioner could not produce the Stock Register. So far as not keeping the Board mentioning the price and particulars of stocks etc., he was maintaining the same but the writing of the Board which were written by Choke, were erased due to touching of the hands of the customers and therefore, it is submitted that the petitioner has not committed any mal-practice. With regard to sending the Monthly Statement to the Mamlatdar, it was submitted by the petitioner that the petitioner is maintaining the same and sending it to the Mamlatdar but due to Cyclone, as stated above, he was not in a position to produce the same. Considering the reply to the show cause notice submitted by the reply and not accepting any of the submissions and after giving an opportunity to the petitioner, the Deputy Collector, Gondal passed the order confiscating the entire stock which was seized worth Rs.1,02,884=00. Being aggrieved and dissatisfied with the said order, the petitioner preferred an appeal before the State Government being Appeal No.454 of 1993 and the Dy.Secretary, Food and Civil Supply, State of Gujarat vide judgement and order dtd.28/7/1995 dismissed the said appeal. Being aggrieved by and dissatisfied with the aforesaid two orders, the petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India.

3. Mr.Mankad learned advocate appearing on behalf of Mr.Yogesh Lakhani, learned advocate appearing for the petitioner has vehemently submitted that both the authorities below have materially erred in passing the order of confiscation of stock seized worth Rs.1,02,884=00. He has also further submitted that as such, there is n