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Cirivisetti Sastrulu and ors. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 1546, 1547, 1624, 1646, 1742, 1743, 1784, 1785 and 1893 of 1964 and 67, 78, 236 and
Judge
Reported inAIR1969AP59; 1969CriLJ157
ActsConstitution of India - Article 226; Essential Commodities Act, 1955 - Sections 7; Andhra Pradesh Rice Procurement (Levy) Order, 1964
AppellantCirivisetti Sastrulu and ors.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateD. Narasaraju, ;G. Kameswararao, ;T. Dasartha Ramayya, ;A. Subbarao and ;Y. Suryanarayana, Advs.
Respondent AdvocateGovt. Pleader
Excerpt:
.....226 of constitution of india, section 7 of essential commodities act, 1955 and andhra pradesh rice procurement (levy) order, 1964 - grain purchasing officer filed complaint before magistrate against petitioners for failure to deliver stock of rice to government as per clause 3 (1) (b) of order of 1964 - petitioner cannot be held guilty for non-compliance with requirement of order as order ceased to be in force prior to commencement of his business as rice miller - held, writ of prohibition rightly issued to magistrate. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and..........in pursuance of notices issued to the petitioners under the provisions of the andhra pradesh rice procurement (levy) order, 1964 and declaring that the prosecutions launched under section 7 of the essential commodities act of 1955 are illegal. 2. though the writ petitions have been filed by different counsel, they arise from the same or similar facts. the main argument was addressed by the learned counsel, mr. d. narasa raju, in w. p. no. 1546 of 1964 and the decision in that writ petition will govern the other writ petitions except w. p. no. 1785 of 1964, which will be dealt with separately. 3. w. p. no. 1546 of 1964: the petitioners are rice millers in krishna district. in exercise of the delegated powers under section 5 of the essential commodities act (central act x of 1955),.....
Judgment:
ORDER

1. These Writ Petitions are filed under Article 226 of the Constitution of India, seeking the issue of writs of prohibition restraining the respondents from taking action in pursuance of notices issued to the petitioners under the provisions of the Andhra Pradesh Rice Procurement (Levy) Order, 1964 and declaring that the prosecutions launched under Section 7 of the Essential Commodities Act of 1955 are illegal.

2. Though the writ petitions have been filed by different Counsel, they arise from the same or similar facts. The main argument was addressed by the learned Counsel, Mr. D. Narasa Raju, in W. P. No. 1546 of 1964 and the decision in that Writ Petition will govern the other Writ Petitions except W. P. No. 1785 of 1964, which will be dealt with separately.

3. W. P. No. 1546 of 1964: The petitioners are rice millers in Krishna district. In exercise of the delegated powers under Section 5 of the Essential Commodities Act (Central Act X of 1955), the State of Andhra Pradesh issued on 31st July, 1959 an order called the Andhra Pradesh Rice Procurement (Levy) Order, 1959 under which the dealers and millers were required to sell the State Govt. on a requisition served on them by the requisitioning authority, 40% of the quantity of rice held in stock by the dealers or the millers as the case may be at the controlled price. This order came into operation in December, 1963. The said order was rescinded by G. O. Ms. No. 507, Food and Agriculture, dated 4th March, 1964 and a fresh order called the Andhra Pradesh Rice Procurement (Levy) Order, 1964 came into force. Under the provisions of this order, every licensed dealer or miller was required to sell to the Purchase Officer at the controlled price, 25% of rice of the total quantity of rice produced or manufactured by him in his rice mill every day and it was made obligatory on the part of the licensee to deliver to the Purchase Officer or such other persons authorised in that behalf by the Purchase Officer, the required quantity of rice for sale. The Andhra Pradesh Rice Procurement (Levy) Order of 1964 was rescinded by G. O. Ms. No. 1748 dated 1-7-1964. The said G. O. contained a provision that the rescission shall not affect the previous operation shall not affect the previous operation of the order or the rights and liabilities acquired or incurred thereunder. On 12-7-1964. the Grain Purchasing Officer, Vijayawada, issued a notice, which was received by the petitioners on 28-7-1964. The terms of the notice, as extracted in the affidavit filed in support of the writ petition, are as follows:

'You are hereby required to sell to the undersigned at the controlled prices 137-56 tons of rice, which you were under obligation to deliver under Clause 3 of the Andhra Pradesh Rice Procurement (Levy) Order. 1964, prior to 1-7-1964, before 29-7-1964 failing which you are hereby informed that necessary legal action (Civil and Criminal) will be taken against you. The stocks can be delivered at the Central Storage Godown, Masulipatnam Port.'

Obviously, the terms of this notice were not compiled with and complaints were lodged in the Court of the District Munsif-Magistrate. Avanigadda (C.C. Nos. 37, 38, 39, 40, 51, 54 and 55 of 1964) under Section 7 of the Essential Commodities Act. In the other writ petitions also similar notices were issued to the petitioners and, for non-compliance with the terms thereof complaints were lodged in the Courts of Munsif-Magistrates having appropriate jurisdiction.

4. In these writ petitions, the main relief asked for is a direction in the nature of a writ of prohibition against the continuance of the prosecution for non-compliance with the terms of the notices issued to the petitioners.

5. Mr. Narasa Raju, the learned Counsel for the petitioners, has raised several contentions before me. It is argued, that the terms of the order casting liability on the dealers or the millers as the case may be to deliver and sell to the concerned authorities are vague and not capable of compliance without a proper requisition. To appreciate this argument, it is necessary to refer to sub-clause (4) of Clause 3 of the Andhra Pradesh Rice Procurement (Levy) Order, 1964, which reads as follows:

'The rice required to be sold to the Purchase Officer by the licensed miller or the licensed dealer under sub-clause (1) or sub-clause(2) as the case may be, or by the person referred to in sub-clause(3) and liable to sell rice under that sub-clause, shall be delivered to the Purchase Officer or to such other person as may be authorised in this behalf by the Purchase Officer, subject to such general and special instructions with regard to exemption of any miller or dealer or any other person from levy under this order, etc., as may be issued by State Government or the Commissioner of Civil Supplies, Hyderabad, from time to time.'

It is argued that this sub-clause would show that the obligation of the licensed miller or the dealer is to deliver to the Purchase Officer or such other person as may be authorised in that behalf by the Purchase Officer. That postulates, it is contended, that there should be a definite requisition as to whether the stock should be delivered to the Purchase Officer or to such other person as may be authorised in that behalf by the Purchase Officer. On that premises, it is contended that, without a requisition, there is no obligation to deliver and that failure, in those circumstances on the part of the licensed miller or dealer cannot be visited with penal consequences. It is further contended that, under Section 35 of the Sale of Goods Act, there should be a specific direction to the seller in respect of the delivery and that sub-clause (4) of Clause 3 of the Andhra Pradesh Rice Procurement (Levy) Order, 1964 should be read in harmony with the provisions of the Sale of Goods Act. It is, therefore, contended that, where there is no requisition by the buyer as to the person to whom the stock should be delivered, the prosecutions launched for non-compliance with the provisions of that Order are incompetent and illegal and should be interdicted by this Court.

6. On the contrary, the learned Government Pleader contended that there is no ambiguity in the provisions of the Andhra Pradesh Rice Procurement (Levy) Order 1964: that the 'Purchase Officer' is clearly defined in Clause 2 (e) of the Order and that the liability is clearly cast upon the miller or the dealer as the case may be to sell to the Purchase Officer. It is also contended that the Order clearly fixes the liability for sale, the quantity to be sold and to the person or authority to whom the stock should be delivered. It is also contended that, even though the Andhra Pradesh Rice Procurement (Levy) Order, 1964 was rescinded on 1-7-1964, the liabilities incurred under the said order are expressly saved that, for non-compliance with the terms of the notice calling for delivery, the prosecutions have been legitimately launched and that the petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.

7. It is well settled that the writ of prohibition will be directed to an interior Court forbidding it to continue proceedings which are in excess of its jurisdiction or manifestly in contravention of the laws of the land. Where the defect of the jurisdiction of the inferior Court is apparent, a writ of prohibition is normally issued as a matter of right. The defect of jurisdiction must be either a wrong assumption of jurisdiction or a palpable excess in exercise of that jurisdiction. The contentions of Mr. Narasa Raju, to my mind do not touch the question of jurisdiction. It cannot be said that the Courts in which the complaints have now been lodged have assumed jurisdiction which, in law, they do not possess or have exceeded their jurisdiction so as to be interdicted by a writ of prohibition from this Court. The various contentions raised by Mr. Narasa Raju as to the ambiguity of the provisions of the Andhra Pradesh Rice Procurement (Levy) Order, 1964, are designed to show that the petitioners could comply with the provisions of that order and hence penal consequences should not be vested on them. These are contentions which the petitioners can well raise before the Court in which the complaints are now lodged.

8. In that view, I do not promote to express any opinion on the validity of the contentions of Mr. Narasa Raju or those of the Government Pleader. I am of the view that this is not a case in which a writ of prohibition should issue from this Court. The writ petition is dismissed with costs. This decision will govern the other writ petitions except W. P. 1785 of 64 and they are accordingly dismissed with costs. Advocate's fee Rs. 50/- in each of the writ petitions.

9. W. P. No. 1785 of 1964: The circumstances for the filing of this writ petition may be briefly stated: On 27-7-1964, the Grain Purchasing Officer filed a complaint in C.C. No. 85 of 1964 on the file of the District Munsif-Magistrate, Nuzvid, against the petitioner for failure to deliver certain stocks of rice to the Government as required under Clause 3 (1) (b) of the Andhra Pradesh Rice Procurement (Levy) Order, 1964. The notice was given to the petitioner on the footing that he is a licensed miller. It is alleged by the petitioner that the licnece under Section 6 of the Rice Milling Industry (Regulation) Act, 1958 was granted to him on 2-9-1964 and that he actually commenced the rice-milling business on 14-9-1964 and that he also obtained the electric connection on 14-9-1964. It is, therefore, alleged that he was not a licensed miller within the meaning of the provisions of the Andhra Pradesh Rice Procurement (Levy) Order. 1964 and that, inasmuch as, by the time he started business as a rice miller, the Andhra Pradesh Rice Procurement (Levy) Order, 1964, had been rescinded he cannot be penalised and no prosecution would lie against him. No counter-affidavit has been filed by the Government. I have therefore, to proceed on the basis that the facts alleged by the petitioner are not challenged. That being so, it cannot be said that the petitioner is a person who is liable to be proceeded against in a Criminal Court for non-compliance with the requirements of an order which had ceased to be in force prior to the commencement of his business as a licensed miller. The prosecution seems to be obviously illegal and a writ of prohibition will issue to the District Munsif-Magistrate, Nuzvid, not to proceed further with the prosecution in C.C. No. 85 of 1964 on his file.

10. The writ petition is allowed with costs. Advocate's fee Rs. 50/-

SAP/D.V.C.

11. Order accordingly.


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