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Y. Eswariah Choudry Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 1409, 1410, 1446, 1447 to 1451, 1453 to 1455 of 1973
Judge
Reported inAIR1974AP96
ActsEssential Commodities Act, 1955 - Sections 3, 3(2) and 5
AppellantY. Eswariah Choudry
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateP. Krishna Reddy, Adv.
Respondent Advocate3rd Govt. Pleader
Excerpt:
.....validity - sections 3 and 5 of essential commodities act and clause 3 of andhra pradesh paddy and rice (requisitioning of stock) order, 1966 - validity of clause 3 challenged on ground that it gives uncontrolled power to authorities of demanding stock of rice from millers - contended that order empowered authorities to demand stock without prescribing any guidelines for exercise of same - also that power not only given to highly placed officials but also to officials at lower rank - court observed that order passed to secure even distribution of rice at time of emergency - in order to achieve same it is necessary to provide huge power to authorities at every level - validity of clause 3 cannot be challenged on any of the ground contended. - motor vehicles act (59 of 1988)section 149..........the constitution the petitioners seek a declaration that clause 3 of the andhra pradesh paddy and rice (requisitioning of stocks) order is void and inoperative. though the petitioners originally sought a declaration that clauses 3, 4 (1), 4 (2) and 10 of the andhra pradesh rice procurement (levy) and restriction on sale order were also void, the petitioners counsel confined his argument to clause 3 of the andhra pradesh paddy and rice (requisitioning of stock) order, 1966.2. the petitioners are rice millers of kurnool town who purchase paddy, mill the same and sell rice after milling. under the andhra pradesh rice procurement (levy) and restriction of sale order, 1967 they are obliged to sell to the agent (food corporation of india) such percentage of the total quantity of rice milled.....
Judgment:
ORDER

1. In these several applications for the issue of writs under Art. 226 of the Constitution the petitioners seek a declaration that clause 3 of the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order is void and inoperative. Though the petitioners originally sought a declaration that clauses 3, 4 (1), 4 (2) and 10 of the Andhra Pradesh Rice Procurement (Levy) and Restriction on sale order were also void, the petitioners counsel confined his argument to clause 3 of the Andhra Pradesh Paddy and Rice (Requisitioning of Stock) Order, 1966.

2. The petitioners are rice millers of Kurnool town who purchase paddy, mill the same and sell rice after milling. Under the Andhra Pradesh Rice Procurement (Levy) and Restriction of Sale Order, 1967 they are obliged to sell to the agent (Food Corporation of India) such percentage of the total quantity of rice milled by them as specified in the schedule. Prior to 1-11-1972 the schedule specified 50 percent. The Millers are obliged to sell the specified quantity of rice at the notified price which is defined as the price fixed under the Andhra Pradesh Rice Procurement (Ex-mill Prices) Order, 1972. Under that order the price of the variety of rice with which we are concerned has been fixed at Rs. 97-10 per quintal. Though the petitioners were obliged to sell 50 percent of the rice milled by them under the Rice Procurement (Levy) and Restriction on Sale Order they claim that there was an agreement with the Collector that each miller should sell 270 quintals of rice for the period prior to 1-11-1972. They also claim that there was a tentative agreement that all the millers of Kurnool district should together sell 270 tonnes of rice for the period subsequent to 1-11-1972. The petitioners allege that notwithstanding these agreements notices were served on all of them to sell 25 percent of the rice milled by them prior to 1-11-1972 and 50 percent of the rice milled by them after 1-11-1972. They sent suitable replies putting forward the agreements alleged by them. We are not now concerned in these writ petitions with the truth or the validity of these alleged agreements. On 1-3-1973 the Revenue Divisional Officer , Kurnool issued notices to all the petitioners proposing to requisition their entire stocks of paddy and rice leaving a quantity of 25 quintals of rice with each of them. Thereupon the petitioners filed the present applications for the issue of writs under Art. 226 of the Constitution.

3. The first submission of Sri P. Krishna Reddy , learned counsel for the petitioners was that clause 3 of the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order gave unbridled power to the authorities to requisition stocks of paddy and rice without prescribing any guidelines for the exercise of that power. Sri Krishna Reddy also urged that power was given not merely to highly placed officials like the Commissioner and the Collector but also to officials in the lower ranks such as the Deputy Tahsildar and Grain Purchase Assistant. It is true that clause 3 itself does not mention the principles which are to guide the exercise of power under clause 3. That is because these principles are already mentioned in the Essential Commodities Act under which the Paddy and Rice (Requisitioning of Stocks) Order is made. In State of Rajasthan v. Nathmal, : [1954]1SCR982 dealing with argument that the power given to the Enforcement Officer to seize any stocks of foodgrain held by any person under an order issued by the Rajasthan Government was void as it conferred an arbitrary power , their Lordships of the Supreme Court observed :

'Nor do we think that the power to free the stocks of foodgrains is arbitrary or based on no reasonable basis. It is not disputed that the clause does not state in express terms that the circumstances in or the grounds on which the stocks may be freezed but it should be read along with Section 3 of the Essential Supplies Act which lays down the policy for controlling the production, supply and distribution of essential commodities.

We are clear , therefore, that the freezing of stocks of foodgrains is reasonably related to the object which the Act was intended to achieve namely to secure the equitable distribution and availability at fair prices and to regulate transport distribution disposal acquisition of an essential commodity such as foodgrains. We do not agree with the High Court that the first portion of clause 25 is void under Art. 19(1)(g).'

I may further add that in the very nature of things the discretion given to the authorities has necessarily to be wide. It is a matter of common knowledge that the food situation in our country if precarious because the production of food is marginal in relation to the requirements of our growing population and the rising standards of living. The balance may be upset by the slightest disturbance such as flood, fire, cyclone, drought or public disorder in addition to the usual practices of hoarding and black-marketing indulged in by unsociable elements. Ordinarily the paddy and rice procured under the Paddy Procurement (Levy) and Restriction on Sale Order may be quite sufficient to secure the even distribution of rice at fair prices throughout the country. But an unforeseen emergency may arise at any time in any part of the country. It is essential that the authorities should be armed with necessary powers to deal with emergent situation arising out of any of the many causes mentioned by me earlier. Since the causes are many and cannot be foreseen the discretion given to the authorities has necessarily to be wide. The discretion is of course to be exercised always for the purposes mentioned in the Essential Commodities Act. Sri Krishna Reddy urged that even assuming that it was necessary to confer wide discretion to the authorities such discretion should have been entrusted to highly placed officials and not to officials in the lower ranks. He invited my attention to cases where the wide discretion given to certain licencing authorities was upheld by courts on the ground that the discretion was entrusted to highly placed officials. There is no axiomatic rule that discretion, if wide, should always be entrusted to highly placed officials. In the case of licensing provisions often very great monetary stakes are involved. Entrusting wide discretion in such cases to lower officials may have the result of leading to undesirable practices. In such cases , it may be desirable that the discretion is entrusted to highly placed officials. But we are concerned here with the food problem which touches every nook and corner of the country and affects every one. Emergent situations may arise at any time in any nook and corner of the country. The officer on the spot must be entrusted with the power to deal with the situation immediately. Otherwise great mischief and havoc may be done by the time the highly placed officials are apprised of the situation and take necessary action. Take the case of a sudden flood or fire which washes away or destroys a village in a remote corner of the State. The Deputy Tahsildar is the man on the spot. It is his duty to provide food and shelter immediately to those affected by the devastation. He may provide food by requisitioning stocks of paddy and rice from a neighboring village and making them available to those affected by the flood or fire. If he has to wait for an appropriate order to be passed by the highly placed official at the Capital of the State or even the headquarters of the district great hardship may be caused to the people affected by the devastation. In situations which can only be dealt with satisfactorily and according to need by lower officials there is no charm in insisting upon higher officials dealing with such situations. I am , therefore, of the view that clause 3 of the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order is not void either for the reason that it confers unguided discretion to the authorities or for the reason that the discretion is not confined to the higher echelons of power.

4. Sri P. Krishna Reddy relied on the decision of the Madras High Court in State of Madras v. Sri. Vanamamalai Mutt, (1969) 2 Mad LJ 324. where dealing with the power to requisition paddy and rice under clause 4 of the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order Natesan, J., relying on the observations in Yekus v. United States (1943) 88 Law Ed 834 observed :

'Can it be said in these cases that the order disclosed sufficient standards for the officer to decide whether he has to procure the entire stock or a specified part? Will it be possible for an aggrieved party to complain that the procurement in his particular case is excessive? What standards can he rely on? Can he point his finger at any rule or law and say that there has been excessive or hostile discrimination in the procurement? When there is no standard to guide discretion, the officer can say that it was justified by the law which gave him discretion. Excessive discretion unregulated by any policy or standard can provide a cloak for the malevolent, the misinformed or the corrupt. There is nothing to judge whether the law is followed. There is wide room to exercise privilege, show favoritism, wreak vengeance or spite and still be within the letter of the law. It will be difficult for the affected to establish the irrelevancies which have led to his being singled out. It is here that considerations under Article 19 and Article 14 overlap. Some administrators may find this approach rather annoying. Democratic methods are irksome to the overzealous administrator and equally to the few who can command, and more irksome to the privileged who may hope gain by unbridled and unjustifiable power vested in a few. Uncontrolled discretion besides being unreasonable is destructive of the principles of equality before law and equal protection of the laws. Whether the power is being in fact exercised arbitrarily or in an even-handed manner is wholly immaterial in considering the validity of the clause. It cannot be said that the discretionary power vested in the officers under clause 4 is not capable of being regulated by further rules. Nor can it be said that sufficient guidance could be found in the Act or in the other provisions of the order for deciding in what cases the entire stock should be procured and in what cases a part should be left out.'

With very great respect to the learned Judge I am afraid general observations about excessive discretion, overzealous administrators and undesirable results are apt to mislead if made without reference to the situation which the conferment of discretion is designed to meet. We are concerned with a sensitive food position consequent on marginal food production, which is susceptible of being upset by a slight disturbance of the balance. In such a situation I do not think that it can be said that the discretion given under clause 3 of the Andhra Pradesh Paddy and Rice Procurement (Levy) and Restriction on Sale Order can be said to be excessive. My late brother Vaidya, J. also held that clause of the Andhra Pradesh Paddy and Rice (Declaration and Requisition of Stocks) Order 1966 which corresponded to clause 3 of the present order was not void on the ground that it vested uncanalised and arbitrary power in the executive.

5. The next submission of sri P. Krishna Reddy was that the Paddy and Rice (Requisitioning of Stocks) Order did not recite that the Central Government was of opinion that it was necessary or expedient to make the order for any of these purposes mentioned in Section 3. According to Sri Krishna Reddy such expression of opinion was necessary in view of Section 3(1) of the Essential Commodities Act. He relied on the decision of the Supreme Court in Swadeshi cotton Mills v. State Industrial Tribunal, : (1961)IILLJ419SC . Hamdard Dawakhana v. Union of India, : [1965]2SCR192 , and the decision of the Madras High Court in (1969) 2 Mad LJ 324. In the first case, the Supreme Court observed :

'The power to pass an order under Section 3 arises as soon as the necessary opinion required thereunder is formed. The opinion is naturally framed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be valid exercise of the power conferred by the Section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence.'

The learned Judges, however, did not accept the argument that the mere fact that the order had been passed was sufficient to raise the presumption that conditions precedent had been satisfied even though there was no recital in the order to that effect. They pointed out that in the absence of such recital the authority passing the order would have to satisfy the Court, if the order was challenged, by other means that the conditions precedent were satisfied before the order was passed. In the second case, the Fruit Products Order, 1955 was attacked as invalid on the ground that it did not purport to say that before it was issued, the Central Government had formed the opinion that it was necessary or expedient to issue the order for maintaining or increasing the supplies of the commodity in question. The Supreme Court did not permit the question to be raised before them and observed.

'It is true, as Mr. Pathak contends, that in the absence of any specific averment made by the Fruit Order that the Central Government had formed the necessary opinion, no presumption can be drawn that such opinion had been formed at the relevant time; but it would have been open to the respondents to prove that such an opinion had been formed at the relevant time; and it cannot be suggested that the failure to mention that fact expressly in the Fruit Order itself would preclude the respondents from proving the said fact independently. That is why we think Mr. Pathak cannot be permitted to urge this contention at this stage.'

These two decision lay down that an order made in exercise of the powers conferred by Section 3 of the Essential Commodities Act is not invalid merely for the reason that the opinion of the Central Government which is a condition precedent to the making of such an order is not recited in the order itself. If the order was challenged on the ground that the Central Government had formed no such opinion it would be open to the Government to establish the opinion of the Central Government at the relevant time by other means. In a recent case, in Chinta Lingam v. Govt of India, : [1971]2SCR871 it was held that it was implicit in the very recital in a Control Order that it was made under Section 3 of the Essential Commodities Act that the Central Government had formed the requisite opinion under sub-section (1) of Section 3 of the Act. The preamble to the Paddy and Rice (Requisitioning of Stocks) Order also expressly refers to Section 3 of the Act. The opinion of the Central Government must, therefore, be considered to be implicit in the light of the decision of the Supreme Court. The preamble also refers to G. S. R. No. 906 dated 9-6-1966 of the Government of India (Ministry of Food and Agriculture) by which the power to make orders under section 3 (1), to provide for matters specified in Section 3(2) (a) to (I) was delegated to the state Government by the Central Government in exercise of its powers under Section 5 of the Act. In addition to delegating the powers the G. S. R. requires that the prior concurrence of the Central Government should be obtained before any order is made relating to any matter specified in Cls. (a) (c) or (d) of Section 3(2). The preamble to the Paddy and Rice (Requisitioning of Stocks) Order expressly recites that the prior concurrence of the Central Government was obtained by the State Government. There is, therefore, no substance in the submission that the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order is void because the Central Government failed to form an opinion about the necessity for the order.

6. The next submission of Sri Krishna Reddy was based on Section 3(2)(f) of the Essential Commodities Act. Section 3(2)(f) enables the making of an order providing for requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Government etc. and in such circumstances as may be specified in the order Sri Krishna Reddy urged that it was imperative that the order made under Section 3 should itself specify the circumstances under which stock of any essential commodity may be requisitioned. The Paddy and Rice (Requisitioning of Stocks) Order did not specify such circumstances and was, therefore, void. I do not agree with the submission of the learned counsel. The first proviso to clause 3 of the Paddy and Rice (Requisitioning of Stocks) Order requires that certain quantity of paddy should not be requisitioned if the stock-holder is an agriculturist. The third proviso requires that the quantity of paddy or rice shall be so requisitioned from a stock-holder as to leave with him a quantity of 25 quintals of rice or paddy which will be capable of yielding 25 quintals of rice on milling. The second proviso to clause 3 requires that a notice shall be first served on every stock-holder from whom it is proposed to requisition any quantity of paddy or rice, to give him an opportunity of making his representation against such order. Thus it is seen that the Paddy and Rice (Requisitioning of Stocks) Order specifies the limits upto which stocks of paddy or rice may be requisitioned. It also specifies a condition precedent for the making of an order of requisitioning, namely, the issue of a notice to give an opportunity to the stock-holder to make hid representation. These certainly are circumstances within the meaning of Section 3(2)(f) of the Essential Commodities Act. There is, therefore, a compliance with the provisions of Section 3(2)(f). If it is considered necessary that any circumstances should be specified in the order. I am, however, of the view that the circumstances need not be specified in the order. What Section 3(2)(f) really means is that an order may be made providing for requisitioning stocks of an essential commodity and such order may also specify the circumstances in which stock may be requisitioned. That is, in addition to enabling the Government to make an order providing for requisitioning the provision also enables the Government to specify the circumstances in which requisitioning may be made. But the Government is not bound to specify such circumstances. It is only an enabling provision. Therefore, the order providing for requisitioning may itself stipulate the circumstances in which the requisitioning may be made; on the other hand, it may not and the discretion may be left to the authorities concerned.

7. Another submission of Sri P. Krishna Reddy was that under Section 5 of the Essential Commodities Act it was for the Central Government to delegate the power to make the orders under Section 3. If any sub-delegation was contemplated the Central Government itself should specify the permissible subdelegation. The Paddy and Rice (Requisitioning of Stocks) Order was void because it delegated the power of requisitioning to officials of the State Government without the same being authorised by any order of the Central Government under Section 5 of the Act. There is no substance in this submission. What Section 5 of the Essential Commodities Act contemplates is the delegation of the power to make an order under Section 3, that is to say the power to make the subordinate legislation contemplated by Section 3. Once the subordinate legislating activity is delegated, it is open to the delegate to further delegate the ministerial duties as distinguished from the subordinate legislating activity. That is all that has happened in the present case. The power to make orders under Sec. 3 was delegated by the Central Government to the State Government has made the order in which certain non-legislation activities are entrusted to the officials of the State Government. When a similar argument was addressed to me in connection with the Paddy Procurement (Levy) Order in Venkateswara Rice Working Co. v. Govt. of A. P., (1971) 1 APLJ 425. I had then said,

'Mr. Krishnamurthi, also submits, that under the Paddy Procurement (Levy) Order the Government has delegated its functions to the Collectors and that such sub-delegation is not permissible. An examination of the provisions of the Paddy Procurement (Levy) Order does not indicate that the State Government had delegated any of the functions delegated to it by the Central Government. What the State Government had done under the Order is to direct its officers to perform certainly purely ministerial functions for the purpose of carrying out the order. There is no sub-delegation of the powers delegated to it under Section 5 of the Essential Commodities Act. There is no force in this contention.'

The view taken by me was confirmed, on appeal, by a Division Bench, consisting of the Officiating Chief Justice and Sambasiva Rao, J. in W. A. No. 142/1968.

8. The last submission of the learned counsel for the petitioners was that the notified price was not fixed in accordance with the provisions of S. 3(3-B) of the Essential Commodities Act. S. 3(3-B) provides that the price to be paid for requisitioned foodgrains shall be (1) the controlled price, if any fixed under that section or under any other law for the time being in force, or (2) the price prevailing or likely to prevail during the post-harvest period for the foodgrains in that area, post-harvest period being defined as the period of four months beginning from the last day of the fortnight during which harvesting operations normally commence, Section 3(2)(c) enables the Government to make orders providing for controlling the prices at which essential commodities may be bought or sold. The Paddy and Rice (Requisitioning of Stocks) Order defines 'Notified Price' as the price notified by the Government having regard to (a) the price fixed in the Andhra Pradesh Paddy (Procurement Prices) Order, 1967 or the Andhra Pradesh Paddy (Procurement Ex-Mill Prices) Order, 1967 as the case may be; (b) the price for such grade or variety of paddy or rice prevailing or likely to prevail during the post-harvest period in the area as required by Section 3(3-B) of the Essential Commodities Act on 11-11-1972, the Government of Andhra Pradesh in exercise of the power conferred by Section 3(2)(f) read with Section 3(3-B) of the Essential Commodities Act notified the prices of paddy and rice for the purpose of the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order as Rs. 65/- and Rs. 117/- per quintal respectively in Kurnool District. Similarly on 11-1-1973 the Government of Andhra Pradesh in exercise of the power conferred by Section 3(2)(f) read with Section 3(3-B) of the Essential Commodities Act notified the prices of paddy and rice for the purpose for the Andhra Pradesh Paddy and Rice (Requisitioning of Stocks) Order as Rs. 62/- and Rs. 97-10 per quintal respectively in Kurnool District. The same prices are also fixed under the Andhra Pradesh Paddy (Procurement Prices) Order, 1972 and the Andhra Pradesh Rice (Procurement Ex-Mill Prices) Order, 1972 made on 28-10-1972. These two orders are made in exercise of the powers conferred by Section 3(2) of the Essential Commodities Act. There is nothing to indicate that the prices notified by the Government have not been arrived at by following the principles laid down in Section 3(3-B) of the Essential Commodities Act. The petitioners merely say that the notified prices are not properly fixed as contemplated by Section 3(3-B) of the Essential Commodities Act. In the additional counter-affidavit filed on behalf of the Government it is pointed out that prices were fixed in accordance with the provisions of Section 3(3-B) of the Essential Commodities Act taking into account the report of the Agricultural Prices Commission. The learned counsel drew my attention to the circumstance that the individual orders of requisitioning served on the petitioners refer to controlled prices and not to notified prices. That is an obvious clerical error. There is, therefore, no force in any of the submissions made by the learned counsel on behalf of the petitioners. All the writ petitions are, therefore, dismissed with costs. Advocate's fee Rs. 100/-, in each case.

9. Petitions dismissed.


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