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Rubbani Rice Mills Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 5343 of 1984
Judge
Reported inILR1985KAR3601
ActsKarnataka Rice Procurement (Levy) Order, 1981 - Clause 3; Karnataka Rice and Paddy Procurement (Levy) Order - Clause 15
AppellantRubbani Rice Mills
RespondentState of Karnataka
Appellant AdvocateM.P. Eswarappa, Adv.
Respondent AdvocateUdayashankar, HCGP
DispositionPetition dismissed
Excerpt:
.....hold that the levy order, 1981 conferred specific right upon the petitioner to transport levy-free rice outside the state or dispose it of within the state. it only regulated surrender of levy and imposed a restriction on the right to transport or dispose of the rice obtained by milling paddy owned by a miller or dealer.;under the levy order, 1981 it was not necessary to obtain a release certificate. a miller or a dealer was free to transport 50% of rice to any place outside the state as soon as he surrendered the levy. additional condition imposed under the levy order, 1983 as to obtaining release certificate for transporting rice outside the state, and further such a release certificate can only be issued in respect of the surrender of levy under the levy order 1983 would go to show..........to the 2nd respondent to issue release certificate to enable him to transport 400 quintals of rice outside the state.2. the facts necessary for deciding the contentions raised by the petitioner are not in dispute. under the provisions of the karnataka rice procurement (levy) order, 1981, (hereinafter referred to as the levy order 1981) thepetitioner has surrendered 400 quintals of rice towards levy as per clause-3 of the levy order, 1981. this surrender is evidenced by the f.c.i. acknowledgments bearing nos. 3537 dated 6-7-1983, 3447 dated 7-7-1983, 3545 dated 7-7-1983 and 3561 dated 11-7-1983. these acknowledgments have not been endorsed to show that the levy free ricepursuant to the surrender of levy evidenced by the acknowlegments, has been transported by the petitioner outside.....
Judgment:
ORDER

K.A. Swami, J.

1.The petitioner is a miller as well as a dealer. In this Writ Petition under Articles 226 and 227 of the Constitution, he has sought for quashing the order dated 28-2-1984 passed by the Deputy Commissioner, Shimoga in No. FSD. PRC. 21/11/83-84 produced as Annexure-E. The petitioner has also sought for a direction to the 2nd Respondent to issue release certificate to enable him to transport 400 quintals of rice outside the State.

2. The facts necessary for deciding the contentions raised by the petitioner are not in dispute. Under the provisions of the Karnataka Rice Procurement (Levy) Order, 1981, (hereinafter referred to as the Levy Order 1981) thepetitioner has surrendered 400 quintals of rice towards levy as per clause-3 of the Levy Order, 1981. This surrender is evidenced by the F.C.I. acknowledgments bearing Nos. 3537 dated 6-7-1983, 3447 dated 7-7-1983, 3545 dated 7-7-1983 and 3561 dated 11-7-1983. These acknowledgments have not been endorsed to show that the levy free ricepursuant to the surrender of levy evidenced by the acknowlegments, has been transported by the petitioner outside the State. The petitioner has made an application on 29-12-1983 before the 2nd Respondent on the basis of the aforesaid acknowledgments evidencing surrender of levy for grant of release certificate under the provisions of the Karnataka Rice and Paddy Procurement (Levy) Order, 1983 (hereinafter referred to as the 'Levy Order, 1983'). The Levy Order, 1983 came into force on 26-11-1983 repealing the Levy Order, 1981. The 2nd Respondent has rejected the request on the grounds that levy had been surrendered under the Levy Order, 1981, that the system of granting release certificate was not contemplated under the Levy Order, 1981; that there was no restriction for the inter-district movement of rice; that the petitioner was free to move the same before 26-11-1983; that no evidence was produced to show that levy free rice pursuant to the aforesaid surrender had not been transported outside the State; that theacknowledgments of surrender made before 26-11-1983 are not valid after 26-11-1983.

3. Sri M. P. Eswarappa, Learned Counsel for the petitioner, submits that under the Levy Order, 1981, as soon as the petitioner surrendered 50% of the total quantity of rice owned by him, right to move the remaining 50% of rice for sale either within the State or outside the State accrued to him ; that such right is not taken away by the Levy Order, 1983 which has repealed Levy Order, 1981. Learned Counsel has placed reliance on Clause-15 of the Levy Order, 1983.

4. On the contrary, it is submitted by Sri S. Udayashankar, Learned High Court Government Pleader, that under Levy Order, 1981, no right was specifically conferred upon the petitioner regarding the transporting or selling of the remaining 50% of free rice. That the Levy Order 1981 created liability on the petitioner to surrender 50% of the rice obtained by him by milling paddy owned by him. Therefore the question of taking advantage of Clause 15 does not arise. Alternatively, it is submitted that even if it isconstrued that any such right had accrued to him under the Levy Order, 1981, a different intention is apparent from Clause-7(1) and Clause 9 of the Levy Order, 1983; therefore under Section 6 of the Karnataka General Clauses Act, such a right cannot be construed to have been saved. It is also further contended by the learned Government Pleader that even if such a right is saved that can be exercised only in accordance with the provisions contained in Clause 9 of the Levy Order, 1983 by filing an application within one month from the date of surrender or in the instant case, at the most within one month from the date the Levy Order, 1983 came into force. It is submitted that since the request for grant of release certificate is made on producing the aforesaid acknowledgments only on 29-12 1983 after more than one month from the date the Levy Order, 1983 came into force, the Deputy Commissioner is justified in rejecting the same. It is also further submitted that the Deputy Commissioner is also justified in rejecting the application on the ground that as there was no restriction on the movement of levy free rice upto 26-11-1983 in the absence of evidence to show that levy free rice referable to the acknowledgments in question was not transported.

5. Having regard to the aforesaid contentions, the points that arise for consideration are as follows:

(i) Whether in respect of the levy surrendered under the Levy Order, 1981, the right had accrued to the petitioner to transport 50% of the levy free rice outside the State, and if so, such right is saved by the Levy Order, 1983 ?

(ii) Whether the Deputy Commissioner was justified in rejecting the application ?

6.1) POINT NO (i) For our purpose, Clause-3(1) of the Levy Order, 1981 is relevant, which reads thus:

'Miller to sell rice : -- (1) Every miller shall sell every day beginning with the date of commencement of this Order to the Government or the purchase agent at the purchase price, fifty per cent of the total quantity of rice obtained by milling paddy owned by him in hisRice mill everyday conforming to Fair Average Quantity.'

From the aforesaid provisions contained in Clause-3 (1) of the Levy Order, 1981, it is clear that a liability is imposed upon a miller to surrender 50% of the rice obtained by milling the paddy owned by him. However, Sri Eswarappa, Learned Counsel for the petitioner, has placed reliance on sub-clause (3) of Clause-3 thereof, which provides that no stock of rice shall be removed from the mill premises without delivery of the rice relating to such stock, in accordance with sub-clause (2). Learned Counsel submits that no sooner the petitioner surrendered the rice towards levy the right accrued to him to transport outside the State or sell within the State, the remaining 50% of the rice. Therefore, it is submitted that the Levy Order, 1981 created the right in the petitioner either to transport the remaining 50 percent of rice to any place outside the State or sell it in the open market within the State, and it is this right, it is submitted, that is saved under Clause 15 of the Levy Order, 1983. Clause 15(b) of the Levy Order, 1983 provides that the repeal of Levy Order, 1981 shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Levy Order, 1981. Whenever a question arises, whether the right had accrued under the repealed order or enactment, as the Case may be, and whether such right is saved by the repealing order or enactment, the provisions contained in the repealed as well as the repealing order or enactment shall have to be looked into with reference to the facts of the case in order to find out whether under the repealed order or enactment any right had accrued and whether the repealing order or enactment contains a provision which militates against the continuation or saving of such right which had accrued under the re-pealed Order or enactment, as in such a situation the provisions of Section 6 of the Karnataka General Clauses Act, are attracted. Apart from Clause-3 of the Levy Order 1981, no other provision is relied upon in support of the contention. Even sub clause (3) of Clause 3 of the Levy Order, 1981 also imposed restriction on the right of the petitioner to remove the rice from the mill. He could not remove the rice from the mill premises without surrendering levy. Clause 3 of the Levy Order, 1981, only imposed restriction on the existing right to sell or transport rice. Unless the requisite levy was surrendered rice could not be moved from the mill. Therefore, it is not possible to hold that the Levy Order, 1981 conferred specific right upon the petitioner to transport Levy free rice outside the State or dispose it of within the State. It only regulated surrender of levy and imposed a restriction on the right to transport or dispose of the rice obtained by milling paddy owned by a miller or dealer.

6.2) Even assuming for the sake of argument that on the surrender of levy right accrued to the petitioner to transport or sell, the levy free rice either within the State or outside the State ; the next question would be whether such a right can be said to have been saved by Clause 15 of the Levy Order, 1983, which has to be read with Section 6 of the Karnataka General Clauses Act. Therefore, it becomes necessary to see whether the provisions of Levy Order, 1983 militate against saving of such right; in other words whether a different intention appears from the provisions thereof. On a consideration of relevant provisions of the Levy Order, 1983, a different intention is apparent; therefore, it is not possible to hold that the right claimed by the petitioner is saved.

Clause 7(1) of the Levy Order, 1983 specifically states that no person shall transport to any place outside the State rice in respect of which a release certificate has not been obtained. Thus, on and from 26-11-1983, it is not open to any person whether he is a miller or a dealer to transport to any place outside the State rice in respect of which a release certificate has not been obtained. In the instant case, the petitioner wants a release certificate for transporting the rice outside the State only. Further, Clause 9 of the Levy Order, 1983 states that release certificate has to be granted in respect of the levy surrendered as per Clause 8 thereof which in turn provides that levy has to be surrendered in accordance with Clauses 3, 4 and 6, as the case may be. That being so, the vouchers which have been produced by the petitioner, cannot be said to answer the requirements. Further, under the Levy Order, 1981, it was not necessary to obtain a release certificate. A miller or a dealer was free to transport 50% of rice to any place outside the State as soon as he surrendered the levy. Additional condition imposed under the Levy Order, 1983, as to obtaining of a release certificate for transporting rice outside the State, and further such a release certificate can only be issued in respect of thesurrender of levy under the Levy Order, 1983, would go to show that no release certificate can be issued in respect of levy surrendered under the Levy Order, 1981. Thus, a different intention appears from the provisions contained in the Levy Order, 1983. As such, irrespective of the fact, that the levy was surrendered prior to 26-11-1983 and the levy free rice in respect of such surrender was not transported or sold to any place outside the State, on the coming into force of the Levy Order, 1983, it is not permissible to transport rice outside the State pursuant to the surrender of levy made prior to 26-11-1983, because the movement of rice and paddy is controlled by the provisions of Levy Order, 1983, from 26-11-1983 which provides that no rice can be transported to any place outside the State in respect of which release certificate is not obtained. That being so, it is not possible to hold that the alleged right, if any, of the petitioner to transport the rice outside the State in respect of the levy he had surrendered under the Levy Order, 1981, is saved under the Levy Order, 1983.

6.3) For the reasons stated above, Point No. (i) is answered in the negative.

7. The conclusion reached by me on Point No. (i) is sufficient to dispose of the Writ Petition. As the arguments are addressed on the second point also, I proceed to consider the 2nd point also. Assuming for the sake of argument that the right as claimed by the petitioner had accrued to him and such right has been saved by the Levy Order, 1983, it can be enforced only on obtaining release certificate which can be granted if the application is filed under Clause 9 of the Levy Order, 1983 within one month from the date of surrender of levy. In the instant case, let us even assume that an application under clause 9 of the Levy Order, 1983, could have been filed within one month from the date of coming into force of the Levy Order, 1983, as the levy in question was surrendered prior to 26-11-1983. In the instant case, the request for grant of release certificate has been made on 29-12-1983 which is beyond one month from 26-11-1983. In addition to this, the Deputy Commissioner is also justified in holding that no evidence is adduced to show that the levy free rice referable to the acknowledgments in question was not either sold or transported outside the State before 26-11-1983. That being so, the Deputy Com-missioner was justified in rejecting the application. Hence, Point No. (ii) is answered in the affirmative and against the petitioner.

8. For the reasons stated above, the Writ Petition fails. It is accordingly dismissed.


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