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Gangadhar Sadhashiorao Watane and ors. Vs. the State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 2084 and 2123 of 1974
Judge
Reported inAIR1976Bom13
ActsConstitution of India - Articles 9, 19, 31, 358 and 360; Maharashtra Raw Cotton (Procurement, Processing and Marketing ) Act, 1971 - Sections 25; Maharashtra Raw Cotton (Procurement, Processing and Marketing ) (Amendment) Act, 1974 - Sections 25
AppellantGangadhar Sadhashiorao Watane and ors.
RespondentThe State of Maharashtra and anr.
Appellant AdvocateV.R. Manohar and ;A.M. Deshmukh, Advs.
Respondent AdvocateA.S. Bobde and ;G.V. Patil, Advs.
Excerpt:
a) the case debated on the applicability of article 358 of the constitution of india to legislation based on financial stringency - it was held that the petitioners could not challenge such legislation during emergency on the ground that it was violative of the fundamental rights that were guaranteed under article 19 of the constitution;b) the court adjudged that the sale of the cotton by the petitioner under the provisions of the maharashtra raw cotton (procurement, processing and marketing) act, 1971 at the centers opened by the government at a price to be determined by the government in excise of the power conferred upon it by the act could not be termed to be a compulsory acquisition or requisition of the property within the meaning of article 31 of the constitution. ;c) the case.....dharmadhikari, j.1. the petitioner in both these petitions are agriculturists and cultivators in the vidarbha region of the state of maharashtra and according to them they solely depend upon agriculture f or their maintenance and livelihood. the petitioners in these cases have tendered their cotton at the cotton centers as per the pervasions of the maharashtra raw cotton (procurement processing and marketing) act, 1971 referred to hereinafter as the act. it is contended by them that they were entitled to receive 80 per cent of the guaranteed price for the quantity of cotton tendered by them and the cotton tendered by them and the action of the respondents incorporated in government resolution dated 28th december, 1974 providing revised mode of payment to the cotton tenderers under the.....
Judgment:

Dharmadhikari, J.

1. The petitioner in both these petitions are agriculturists and cultivators in the Vidarbha region of the State of Maharashtra and according to them they solely depend upon agriculture f or their maintenance and livelihood. The petitioners in these cases have tendered their cotton at the cotton centers as per the pervasions of the Maharashtra Raw Cotton (procurement Processing and Marketing) Act, 1971 referred to hereinafter as the Act. It is contended by them that they were entitled to receive 80 per cent of the guaranteed price for the quantity of cotton tendered by them and the cotton tendered by them and the action of the respondents incorporated in Government resolution dated 28th December, 1974 providing revised mode of payment to the cotton tenderers under the scheme, and the provision of Section 25, 26 and 27 of the Act, depriving them of their right to get 80 per cent guaranteed price in lump-sum is violate of their fundamental right under Article 31 of the Constitution of India. It was also contended by the petitioners that Section 25 to 27 of the Act, as amended, are also violative of their fundamental right under Articles 14 and 31 of the Constitution of India. as the cotton tendered by them in being acquired by the state without payment of reasonable compensation. It was also faintly argued before us that the said provisions are contrary to the basic objects of the Act itself. A contention was also raised on behalf of the petitioner that the Government order issued under Section 25 of the amended Act dated 28th December , 1974 is bad in law, it being retrospective in operation. For this purpose a reference was made to clause 4 and to clause 7 of the said order. Shri Manohar, the learned counsel for the petitioners in Special Civil Application No. 2123 of 1974 , further contended that the order issued by the Government dated 28th December , 1974 beyond the scope of Section 25 itself as no provision has been made in the said order for payment of interest for an intermittent period. namely, the period between the point of time, the cotton is tendered and the amount is actually deposited in the Bank. For this purpose he has drawn our attention towards the averments made in para , 10 of the return filed on behalf of the respondent No. 1, wherein it was admitted that though the date of tender of cotton was 12th December 1974, the amount was credited in the Bank account on 18th December 1974., and therefore the petitioner are deprived of their property, namely, the cotton, without any compensation. Therefore, in substance, the petitioners in Special Civil Application No. 2123 of 1974 have challenged the provisions of S. 25 of the Act as well as the order issued thereunder by the State Government on the ground that it is violative of their fundamental right guaranteed under Article 31 of the Constitution of India. It is also contended that the order issued by the Government under Section 25 of the act is bad in law, it being retrospective in nature and beyond scope of Section 25 of the Act.

2. Shri Holey, the learned counsel for the petitioners in Special Civil Application No. 2084 of 1974, contended before us that there is no nexus between the emergency declared under Article 352 of the Constitution of India and the present legislation, and therefore, the petitioners are entitled to challenge the present enactment on the ground that it is violative of the petitioners fundamental right guaranteed under Article 19 of the Constitution of India. it is contended by the learned counsel that under the Constitution two distinct and separate provisions are made for declaration of emergency, Article 352 of the Constitution confers a power upon the President to declare emergency if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whereas Art. 360 confers a powers upon the President to declare emergency if he is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened. Therefore, according to the learned counsel, to the present legislation the provisions of Article 358 are not applicable . According to the learned counsel as Article 360 appears on the statute book after Article 358 it is not applicable to a legislation which is based on financial stringency or paucity of funds. He further contended that the present legislation, namely, the Maharashtra Raw Cotton (procurement , Processing and Marketing) Act, 1971 and in particular Maharashtra Ordinance No. XXIII of 1974 has been promulgated providing a mode of payment of the advance price because of financial stringency of paucity of funds. According to the learned counsel, the present legislation has, therefore no nexus with the emergency declared under Article 352 of the Constitution and hence it is open for the petitioner to challenge the said legislation on the ground that it is violative of the petitioner's fundamental right guaranteed under Article 19 of the Constitution.

3. In our opinion, the contention raised by Shri Holey needs to be mentioned only for being rejected. Art. 358 of the Constitution deals with the suspension of provisions of Article 19 during the emergency. It is not open for this Court to go behind the proclamation. Only because Article 360 appears in the Statute book after Article 358, are not applicable to a legislation providing for the mode of payment of advance price due to financial stringency of paucity of funds. The protection given by Art. 358 to a legislation made during the subsistence of emergency is a blanket protection. This Court has considered this aspect of the matter in detail in Rajaram v. State of Maharashtra 1973 Mah. LJ 813 while dealing with the present legislation itself. In view of this in our , opinion, it is not open for the petitioners to challenge e the present legislation on the ground that it is violative of their fundamental right guaranteed under Article 19 of the Constitution of India. In all fairness to Shri Manohar, he has not adopted this part of the argument of Shri Holey.

4. On behalf of the petitioner in Special Civil Application No. 2123 of 1974 it is contended by Shri Manohar that the provisions of Section 25 and the order issued by the State Government in substance amount to acquisition of the cotton of the petitioners without payment of compensation or price therefore. According to him , under coming a law the petitioners, who are the agriculturists have a right to sell their cotton anywhere they desire. By the present legislation a monopoly has been created and their right to sell the cotton has been restricted. Under the present legislation it is compulsory for the agriculturist that he must sell the cotton to the State Government or its agent. Under the provisions of Sale of Goods Act an agriculturist is entitled to get price for his goods as soon as they are sold. The postponement of payment of prices as has been does in the present case, practically amounts to acquisition to cotton without payment of price or on payment of a meager price. He further contended before us that 30 per cent of the advance price, which is offered to the agriculturists immediately on sale practically amounts to non-payment of any price for the goods. The petitioners, who are agriculturists, are not able to incur any expenditure on their agriculture from this amount , nor the amount paid to them is enough to meet two ends. In substance therefore, it is contended by Shri Manohar that the acquisition of raw cotton of the petitioners by the State Government under the provisions of the Act amount to compulsory acquisition of their property, namely the cotton, without any authority of law and is , therefore, violative of the petitioner's fundamental right under Article 31 of the Constitution. In support of this contention he sough assistance from the provisions of Article 19(1) of the Constitution of India and contended that Sec 23 of the Act and the order issued thereunder are not a reasonable restriction upon the petitioner's right to acquire, hold and dispose of their property. He further contended that no time limit has been prescribed by the Act or the order issued by the Government for payment of 30 per cent of the advance price after the cotton is tendered. According to the learned counsel, no provision has also been made for payment of any interest from the time of tender of cotton till the payment of this 30 per cent of advance price. According to Shri Manohar, postponement of purchase price coupled with non-payment of interest amounts to unreasonable restriction upon the fundamental right of the petitioners under Article 31 of the Constitution of India. For this proposition he has relief upon the decision of the Supreme Court in Godhra Electric Co. v. State of Gujarat : [1975]2SCR42 .

5. It is not possible for us to accept this contention of Shri Manohar. It cannot be disputed that in view of the provision of Article 358 of the Constitution , while a proclamation of emergency is in operation, the provisions of Art. 19 are suspended during the pendency of emergency. If this is so, then it is not open for the petitioners to contend during the pendency of emergency that the present legislation violates their fundamental right guaranteed under Article 19 of the Constitution of India. If this is so, is our opinion , it is not also permissible for the petitioners to avail of the same right obliquely or indirectly. The protection given by Article 358 to a legislation made during the subsistence of emergency against an attack on the ground of violation of article 19 of the Constitution is a blanket protection if the legislation is otherwise legal and constitutionally valid. In this view of the matter in our opinion. It is not open for the petitioner to take aid of the provisions of Article 19 of the Constitution is a blanket protection if the legislation is otherwise legal and constitutionally valid. In this view of the matter in our opinion, it is not open for the petitioner to take aid for the provisions of Article 19 of the Constitution of India for contending that they are being deprived of their property without authority of the law, meaning thereby that the law, which deprives them of their property, is violative of their fundamental right guaranteed under article 19 of the Constitution. Apart from this, in our opinion , the sale of the cotton by the petitioners under the provisions of the Act at the centres opened by the Government at a price to be determined by the Government in exercise of the power conferred upon it by the Act cannot be termed to be a compulsory acquisition or requisition of the property within the meaning of Article 31 of the Constitution. The present piece of legislation merely requires a person to sell the cotton to the Government or its agent as per provisions of the act and monopoly scheme. It does not empower the Government either to acquire or take possession of property. In this view of the matter, in our opinion, it is not necessary to refer to the decision of the Supreme Court in State in West Bengal v. Subodh Gopal Bose, : [1954]1SCR587 on which reliance was placed by the learned counsel in support of his contention. Moreover, after the said decision of the Supreme Court, Article 31 of the Constitution of India itself was amended. In the present case if it is not possible for the petitioners to attack the present legislation on the ground that it is violative of their right guaranteed under art. 19 of the Constitution, then , in our opinion , no argument based on infringement of Article 31 read with Article 19 of the Constitution can be independently set up.

6. It was then contended by Shri Manohar that the order issued by the State Government dated 28th December, 1974 has not made any provision for payment of interest from the date of tender of cotton till the date of actual credit of the amount in the Bank by the respondents.

7. For properly appreciating this contention it will be useful to reproduce Section 25 of the act, as amended which reads as under:

'25(1) Every tenderer of cotton at the collection centre shall in the first instance be entitled to receive eighty per cent of the guaranteed price for the quantity of cotton tendered by him, which shall be payable to him in lump sum or in such instalments, not exceeding two, as the State Government may, from time to time, having regard to the availability of the funds by general or special order determine. The payment of eighty per cent of the guaranteed price in this manner shall be the advance price payable to the tenderer.

(2) The difference between the guaranteed price and the advance price shall be payable to the tenderer within a period of three months after the close of every cotton season: Provided, that where the payment of the advance price or any part thereof is deferred for any reason or the difference between the guaranteed price and the advance price is not paid immediately after the close of any cotton season, there shall be paid to the tenderer by or on behalf of the State Government interest on the amount which remains unpaid, from the date of tender of cotton by him or from the close of the cotton season. as the case may be, till the date of payment of such amount, at such rate not less than ten per cent per annum, as the State Government may, from time to time, by general or special order , specify'.

It is not doubt true that no provision has been made in the order issued by the State Government dated 28th December 1974 for payment of interest for the period between the date of tender of cotton till the date of actual credit of the amount in the Bank by the respondents. As already referred to herein before, in the return filed on behalf of the respondent No. 1, it is an admitted position that thirty percent advance price, which was payable to the tenderer of cotton at the collection centre, was deposited in some cases after more than 6 days. It is also true that no provision has been made in the Order issued by the Government under Section 25 of the Act for payment of any interest for this intervening period. However, in our opinion, on that count it cannot be said that the order issued by the State Government under Section 25 of the act is either illegal or is beyond the scope of the section. itself. The proviso to Section 25 of the Act itself makes a provision for payment of interest where the payment of the advance price or any part thereof is deferred for any reason. According to the proviso to Section 25 of the Act, the tenderer is entitled to get interest from the date of payment of such amount at such a rate which cannot be less than ten per cent per annum. In a given case it can be more if the Government so specifies by general or special order. In the absence of such a specification by general or special order under the Provisions of Section 25 of the Act read with the proviso, the tenderer of the cotton is entitled to get interest at the rate of 10 per cent per annum from the date of the tender of the cotton by him till the date of payment of such amount. In this particular case, the payment of such amount is by the credit in the Bank account. The date on which the amount is credited in the Bank account of the tenderer will be deemed to be the date on which the payment is made to him. If the advance price or any part thereof is not paid to the tenderer immediately after the cotton is tendered, in our opinion. It will be amount to a deferred payment as contemplated by the proviso to S. 25 of the Act.

8. Shri. A.S. Bobde, the learned counsel for the respondent No.1 contended before us that the delay in actual credit of the amount in the Bank cannot be termed to he a deferred payment s contemplated by the proviso to Section 25 of the Act. According to hi, the delay in crediting the amount in the Bank could be caused due to administrative exigency of the Government or its agent. or in a given case the delay could be by the Banking authorities. In our opinion, whatever may be the reason or any part thereof as soon as the cotton is tendered, so far as tenderer is concerned, it will be a deferred payment as contemplated by proviso to Section 25 of the Act. As per provisions of Section 25 of the act, the tenderer is entitled to get payment of the advance price or any part thereof as soon as the cotton is tendered. Any postponement by the Government or its agent in payment of this price amount to deferred payment. This being the position, in our opinion, the tenderer will be entitled to get interest at the rate which will not be less than 10 per cent per annum from the Government or its agent from the date of tender to the date of actual payment of the amount. The amount remains unpaid till it is actually paid or credited in the Bank account. As a provisions has been made for payment of interest in S. 25 itself. it was not obligatory on the part of the Government to have made any provision in the order issued under S. 25 of the Act. , unless Government wanted to prescribed higher rate of interest than the minimum prescribed by the Act itself. Therefore, it is not possible for us to hold that on that count the order issued by the Government is any way bad in law. As a specific provision for payment of interest is already made in the Act , in our opinion, the law laid down by the Supreme Court in the Godhra Electricity Co. v. The State of Gujarat . : [1975]2SCR42 has no application to the facts and circumstances of the present case nor it can be said that the present legislation is violative of petitioner's fundamental right guaranteed under Art. 31 of the Constitution of India.

9. It was then contended by Shri. Manohar that Section 25 of the Act does not confer any right upon the State Government to issue any general or special order determining the mode of payment of 80 per cent of the guaranteed price with retrospective effect. According to him the subordinate authority exercising subordinate legislative function cannot issue an order which can operate with retrospective effect. For this proposition Shri. Manohar has relief upon a decision of the Supreme Court in the Income--tax Officer . Alleppey v. I.M.C. Ponnoose, : [1970]75ITR174(SC) .

10. For properly appreciating the contention it will be useful to refer to the aims and object leading to the promulgation of the Ordinance by which Section 25, 26 and 27 of the Act are amended. It is no doubt true that the Statement of Objects and Reasons leading to the passing of an enactment cannot be looked into as a direct aid to construction. yet it can be used for the limited purpose of ascertaining the condition prevailing at the time when Ordinance was issued and the purpose for which amendment was made. The Statement of Objects and Reasons of a Statute may and do often furnish valuable historical material in ascertaining the reasons which induced the legislature to enact a Statute. It can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the Statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the Statute for curing the mischief. It is useful to find out as to what was the law before the Act was passed. What was the mischief or defect for which law had not provided and the reason of the remedy. [See. Smt. Radhabai v. State of Maharashtra : AIR1970Bom232 (FB) and A.C. Sharma v. Delhi Administration , : 1973CriLJ902 . The Statement of Objects and Reasons appended to the Ordinance is as follows.

STATEMENT

1. Consequent upon consistent demand from numerous organisations of cotton cultivators throughout the State the State Government decided to review the Monopoly Cotton Procurement Scheme from the cotton season beginning on the 1st July 1974. After taking into consideration any action required for solving difficulties experienced in the implementation of the Maharashtra Raw Cotton (Procurement, Processing and Marketing) Act, 1971 during the years 1972-73 and 1973-74 and particularly for minimising hardships experienced by cotton growers in obtaining their due payments expeditiously, suitable amendments were made in certain provisions of that Act, by Maharashtra Act No.XLVIII of 1974

2. Accordingly, necessary steps for raising adequate funds for procurement , processing and marketing of cotton during the year 1974-75 were inter alia initiated by submitting an application to the Reserve Bank of India, for sanctioning a credit limit upto Rs. 125, crores, having regard to the revised guaranteed price for various varieties and grades of kaps, which were fixed by the State Government in consultation with the Central Government after taking into consideration various factors involved.

3. It was expected, that, as in the years 1972-73 and 1973-74 the Reserve Bank of India would assist the Maharashtra State Co-Operative Bank Ltd. in raising necessary finance for the operation of the Scheme with the help of the nationalised banks. Unfortunately, the Reserve Bank of India has now put severe restrictions on the availability of credit for various purposes, with a views to curbing inflationary pressures on the national economy and controlling the level of rising prices of essential commodities required by the community at large. These credit curbs and the consequent restrictions on the supply of funds by nationalized banks not only hastened the downward trends of cotton prices, but also restricted very considerably the availability of funds for trading and other purposes. Although it appears obligatory on the part of the Reserve Bank of India not only to make available sufficient funds for only to make available sufficient funds for raising of crops but also for processing and marketing of agricultural produce by the CO-operatives, the Reserve Bank of India, in view of the national economic situation, has brought down its own limit of credit from RS. 25 crores to Rs. 20 crores for the operation of the Scheme during the year 1974-75, and also expressed its inability to persuade the nationalised banks, as in the past, to make available adequate funds for the operation of the Scheme through the agency of the Maharashtra State Co-operative Bank Ltd.

4. The overall situation arising from the factors mentioned in the foregoing paragraphs was examined by the State Government and though several attempts were made to persuade the concerned Ministers of the Central Government and the Reserve Bank of India to re-consider the matter, no hopes could be entertained for obtaining substantial additional credit required for the operation of the Scheme., If the scheme was, therefore, not be continued, it could continued only within the total availability of funds to the extent of Rs.50 crores (consisting of Rs 20 crores form the Reserve Bank of India; Rs 20 crores from the Maharashtra State Co-operative Bank and Rs. 10 crores from there funds available with the Maharashtra State Co-operative Marketing Federation Ltd.)

5. Since the decision to revive the Scheme was taken in consultation with the members of Parliament from the State, members of the State Legislature and representatives of various co-operative organisations of agriculturists in the State, it was considered necessary to explain to them the financial position presented by the credit squeeze measures brought into force by the Central Government and the Reserve Bank of India as a part of the national economic policy. Accordingly, a meeting of the representatives of members of parliament, members of the State Legislature, Presidents and Chairmen of the District Central Co-operative Banks, the Maharashtra State Co-operative Marketing Federation Ltd., Taluka /Block Level Co-operative Sale and purchase Societies, and the Agricultural Produce Market Committees in the cotton growing tracts of the State was convened by the Chief Minister at Nagpur, on the 17th November, 1974. This meeting reviewed the entire situation and recommended unanimously that since the Monopoly Cotton Procurement Scheme is in the best interest of the cotton cultivators, it should not under any circumstances be suspended, but it must be implemented and that cotton cultivators would in their own interests whole-heatedly help the Government in over-coming the financial difficulties faced by the Scheme. Accordingly, the meeting recommended that the State Government should adhere to the practice of paying 80 per cent of the guaranteed price as advance price to the tenderers, but this payment should be as under:-

(a) In the first instance, 30 per cent, in cash should be paid to the borrower as well as non-borrower members. However, in the case of borrower members 50 per cent should be deducted towards re-payment of the co-operative dues and in the case of non-borrower members 50 per cent should be treated as deposit by them with scheme, with interest at the rate of 10 per cent, per annum.

(b) The payment of full amount of 80 per cent advance should be made to the tenderers by the end of June and the balance of the guaranteed price as well as final price should be worked out and paid by the end of October 1975.

(c) In the case of any borrower member, if his entire loan is less that 50 percent of the guaranteed price to be paid to him, the remaining amount should be treated as deposit with the Scheme at the same rate of interest of 10 per cent per annum. The meeting also recommended that monopoly cotton procurement operations should be started forthwith and accordingly all cotton collection centres in the State have already been started and procurement operations are in full-swing.

6. Since the revised mode of payment has no statutory binding and is being questioned in some quarters, it is considered expedient to amend suitably the provisions of Sections 25, 26 and 27 of the Raw Cotton Act to leave no scope of any doubt or challenge.

7. Accordingly, it is considered necessary to make such amendments in the Act immediately, with a view to securing and facilitating the implementation of the Scheme more effectively. The amendments to Sections 25, 26, and 27 would legalese the mode of payment as agreed to by the representatives of the cotton ultimate from the date on which these decision were taken, i.e. from the 17th day of November. 1974,

8. As both Houses of the State of Legislature are not in session and immediate action is required to be taken to amend the Act for the purposes aforesaid, this ordinance is promulgated.:

After the Ordinance was promulgated the State Government vide Government resolution dated 28th December 1974 passed, a resolution prescribing revised mode of payment for cotton tenderers under the Cotton Monopoly Procurement Scheme. It was to take effect from the 17th November 1974. By the said resolution it was directed that 80 per cent of the guaranteed price is to be paid in two instalments and that the said order was to take effect from 17th November 1974, the date on which the Maharashtra Ordinance XXIII of 1974 has come into force. Prior to the present Ordinance every tenderer of the cotton at the collection centre was entitled to receive 80 per cent of the guaranteed price for the quantity of the cotton tendered by him. It seems that thereafter the Government approached the Reserve Bank of India for sanctioning a credit limit upto Rs. 125 crores, having regard to the revised guaranteed prices for various varieties and grades of kapas, which were fixed by the State Government in consultation with the Central Government after taking into consideration the various factors involved. However, the Reserve Bank of India, in view of the national economic situation, instead of granting higher credit facilities, brought down its own limit of credit from Rs. 25 crores to Rs. 20 crores for the operation of the scheme during the year 1974-75. In spite of the best efforts it was not possible for the Government to secure any credit facilities or funds for running the monopoly cotton procurement scheme. In view of the situation created because of the financial stringency a meeting was held on 17th November 1974 in which the representatives of the Bodies who were interested in running the scheme were present and from the statement attached to the Ordinance it seems that the State Government should adhere to the practice of paying 80 per cent of the guaranteed price as advance price to the tenderers, but this payment should be in instalments. In pursuance of the decision taken in this meeting and at the instance of the Government, the Maharashtra State Co-operative Marketing Federation issued a Circular dated 23rd November 1974 prescribing the method of payment to be followed under the Monopoly Cotton Procurement Scheme in respect of season 1974-75. A copy of this circular is at page 37 of the paper-book of special civil Application No. 2123 of 1974 as Annexes A. After this, a letter dated 30th November 1974 was sent by the Government to the Managing Director, Maharashtra State Co-operative Marketing Federation. It is stated in the said letter that the decision taken in the aforestated meeting dated 17th November 1974 and the statements made thereunder have been approved by the Government and the revised scheme, as mentioned in the said letter, has also been unanimously approved in the meeting of the representatives of the cotton growers, M. L. As., Chairman of the Sales and Purchase Societies and the Market Produce Committees, held at Nagpur on 17th November 1974. It seems from the record that the payment was being made to the tenderers of cotton according to the scheme incorporated in the Circular of the Marketing Federation dated 23rd November 1974. However, it was noticed by the Government that this revised mode of payment has no statutory binding force and was being questioned in some quarters, and therefore, it was considered expedient to amend suitably the provisions of Sections 25,26, and 27 of the Act, to leave no scope for any doubt or challenge. Accordingly, the Maharashtra Ordinance No.XXIII of 1974 was issued by the Government, amending Sections 25,26 and 27 of the Act. By sub-clause (2) of clause 1 of the Ordinance it was declared that the amending Ordinance of 1974 shall be deemed to have come into force on the 17th day of November 1974 itself. Therefore, it is quite clear that the Ordinance was given retrospective effect with effect from 17th November 1974. A legal fiction was created by the said Ordinance and for all practical purposes it was declared that Sections 25,26 and 27 of the Act, as amended, will be deemed to have come into force from 17th day of November 1974 itself. It is no doubt true that an authority exercising subordinate legislative function cannot make a Rule, Regulation or By-law which can operate with retrospective effect. In this context it has been laid down by the Supreme Court in the income-tax Officer, Alleppey v. I.M.C. Ponnoose, AIR 1970 385 (cit supra ) as under :- 'Now it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws are - in the words of Willes. J. in Phillips v. Eyre. (1870) 40 LJ QB 28 'no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on open the faith of the then existing law.' The Courts will not, therefore, ascribe retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect : See Subba Rao. J., in Dr. Indramani Pyarelal Gupta v. W. R. Nathu, : [1963]1SCR721 the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commr. of Sales Tad, U. P., : AIR1956All35 ; India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326 and General S. Shivdev Singh v. State of Punjab, .'

From this decision of the Supreme Court it is quite clear that as to whether a person or authority to whom such powers have been delegated by the legislature can make an order, rule or regulation or bye-law with retrospective effect or not, will obviously depend upon the statutory provisions However, in our opinion, it is not necessary to decide this question in the present case in view of the specific language used in Section 25 and the Ordinance. As per the provisions of Section 25 of the Act the advance price is made payable to the tenderer of cotton at the collection centre. In the first instance he is entitled to receive 80 per cent of the guaranteed price of the quantity of cotton tendered by him. This amount shall be payable to him in lump sum or in such instalments not exceeding two, as the State Government may, from time to time having regard to the availability of the funds, by general of special order determine. Section 25 of the Act confers a right upon the State Government to determine the mode of payment of the advance price. The determination could be made from time to time having regard to the availability of the funds. The determination contemplated is with regard to the amount which is payable to the tenderer. In the case before, us the petitioners were paid 30 per cent of the advances price under the scheme which was framed by the Marketing Federation under its circular dated 23rd November 1974, . Even assuming that as per the unamended provisions as it then stood the tenderer was entitled to receive 80 per cent of the guaranteed price immediately. it cannot be disputed that in the present case only 30 per cent of the guaranteed price was paid to him as an advance. price. Rest of the amount of which forms part and parcel of the advance price is still payable to him. If this is so, then, in our opinion, it is open for the State Government in exercise of the powers conferred upon it under Section 25 of the Act itself contemplates a situation under which the power can be exercised by the Government after the cotton is tendered by the tenderer and the amount remains to be paid or is still payable to him. The order issued by the Government does not operate retrospectively as it does not touch the payment already made. The order regarding payment of the amount either in lump sum or instalments operates on the amount which is still payable. In this view of the matter, in our opinion, it cannot be said that the order issued by the Government dated 28th December 1974 operates retrospectively. By the order issued by the State Government the mode of payment of the amount which is payable to the tenderer is only altered. This alteration is to take effect prospectively. Section 25 of the Act itself confers a right upon the State Government to issue an order determining the mode of payment regarding the amount which is still payable to the tenderer.

9. Apart from this , it cannot be forgotten that by Ordinance No. XXIII of 1974 a fiction has been created and the amending provisions of the Act are deemed to have come into force from 17th November 1974. The fiction created by the Legislature will have to be extended to its logical conclusion. This obviously means that on 17th November 1974 itself Section 25 , as is amended by the ordinance, was on the Statute Book. If this is so, it is open to the Government to issue a general or special order at any time determining the mode of payment of the advance price which is still payable to the tenderer. This is not a case where it could be said that Section 25, as amended was itself not on the Statute book on 17th November 1974. From the language of Section 25 of the Act itself it is quite clear that the power given by the said section to the Government in its ambit covers the amount which is still payable to the tenderer and it is open to the Government to issue a general or special order determining the mode of the payment of this amount which has not been paid to the tenderer, but is still payable. The order issued by the Government dated 28th December 1974 in its effect does not touch the amount which is already paid to the tenderer, namely, 30 per cent advance price which was paid to the tenderer under the scheme then existing. The sadi order does not seek to set at naught the transaction of sale or the amount already paid. The sale transaction remains intact and unaffected and so does the 30 per cent amount already paid. It is only the amount which is still payable is also not affected. The total price payable is also not affected. The total price payable is also not affected. The order operates prospectively on the amount which is still payable . In this view of the matter, in our opinion, there is no substance in the contention raised on behalf of the petitioners that the order issued by the Government dated 28th December 1974 is retrospective in its operation.

10. It was faintly argued by Shri Manohar that the provisions of Ss. 25, 26, and 27 of the Act are contrary to the basic object and the policy behind the legislation.

11. As observed by the Supreme Court in Municipal Committee, Amritsar v. State of Punjab (AIR 1960 SC 1100):

'The Courts in India have no authority to declare a statute invalid on the ground that it violates the due process of law'. Under our Constitution, the test of due process of law cannot be applied to the Statutes enacted by the Parliament or the State legislatures. This Court has definitely ruled that the doctrine of due process of law' has no place in our constitution system: A.K. Gopalan v. The State of Madras, : 1950CriLJ1383 . Kania, C.J. observed (at P. 120 of SCR) = ( at . p. 42 of AIR.): 'There is considerable authority for the statement that the Courts are not all liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words **** it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment'

The Court is construing and interpreting the provisions of the enactment has to ascertain the meaning and intention of legislature from the language used in the Statute itself and it is not concerned with the motives of the legislature. As observed by the Supreme Court in A.C. Sharma v. Delhi Administration, : 1973CriLJ902 (cit supra):

'Statement of Objects and reasons for introducing a Bill in the legislature is not admissible as an aid to the construction of the statute as enacted : for less can it control the meaning of the actual words used in that Act. It can only referred to for the limited purpose of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose for doing so. The preamble of a statute which is often described as a key to the understanding of it may legitimately be consulted to solve an ambiguity or to ascertain and fix the meaning of words in their context which otherwise bear more meanings than one. It may afford useful assistance as to what the statute intends to reach. but if the enactment is clear and unambiguous in itself then no preamble can vary its meaning. While construing a statue one has also to bear in mind the presumption that the legislature does not intend to make any substantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute'

Further in our opinion, it cannot be said that the present ordinance is beyond the scope of or is contrary to the object of the Legislation. It is no doubt true that there is some substance in the grievance made by the petitioner that the 30% of the advance price which is being paid to them is not enough to meet the expenses which they are required to incur for the purpose of agriculture as well as their household expenditure. But the policies of the Government which are expressed in the shape of legislation are to be considered by the members of the legislature and not by the Courts of law. A Statute cannot be challenged on the ground that it is the result of some alleged wrong policy of the Government. We are not aware of any authority which has laid down that a provisions of a statute can be struck down on the ground that the policy behind the enactment is either wrong or hostile. As already observed a provision of statute can be declared as unconstitutional and void by the Courts of law. if it is beyond the competence of legislature or if it contravenes any of the provisions of the Constitution. In this view of the matter , it is not possible for us to accept this contention also.

12. There were the only contentions argued before us.

13. In the result, therefore, both the petitions fail and are dismissed. However, in the circumstances of the case there will be no order as to costs.

14. Petitions dismissed.


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