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P. Krishnamoorthi Gupta and ors. Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn Nos. 6362 and 800 of 1973
Judge
Reported inAIR1974AP252
ActsEssential commodities Act - Sections 3
AppellantP. Krishnamoorthi Gupta and ors.
RespondentThe Government of Andhra Pradesh and ors.
Excerpt:
.....second memo, therefore is only an addition to the first and if the first is bad the second if cannot stand on its own legs independent of the first, then it would not be enforceable independently. 17. we are, therefore, satisfied that the two abovesaid impugment memos are not enforceable. both the memos therefore will have to go as bad. ' 20. obviously the learned judge thought that such a memo can be issued under clause 4 (3) of the andhra pradesh rice procurement (levy) and restriction on sale order .if the learned judge's attention were to be brought to the fact that sub-clause (3) was inserted long after the memo and till then the government had no power to issue such instructions, we are sure he would have held the memo as bad in law. 21. for the aforesaid reasons we allow the..........not valid in law.14. it was however contended by the learned government pleader that the second memo issued by the government after the instructions of sub-clause (3) in clause 4 would be valid in law and can independently be enforced. this argument assumes that the second memo is independent of the first and is a self contained one. even a casual reading of that memo, however would disclose that it merely modifies the earlier memo and has no independent existence of its own. it is not a self contained memo which can be enforced. unless the requirement of 'no objection certificate' is seen from the first memo it will not be possible for the collector to issue such no-objection certificate which will be issued only to such of the dealers as have done business for a full year before.....
Judgment:

Gopal Rao Ekbote, C.J.

1. The Writ Petition and Writ Appeal raise common questions and they can be , therefore , disposed of by a common judgment .

2. We will give the facts of the writ petition in order to make out the point which arises for our considerations. The petitioners are wholesale dealers in foodgrains in Chittoor District . Some of them make purchases of rice within the District while others make purchases from surplus districts of Andhra Pradesh and move the purchased rice to Chittoor District for the purposes of trade there in.

3. Under Section 3 of the Essential Commodities Act , the Central Government , by order can provide for regulating or prohibiting production, supply and distribution of certain commodities and trade and commerce therein. The power which the Central Government has , can be delegated in part of the State Government. In exercise of that power certain powers are delegated to the State Government of Andhra Pradesh .

4. In exercise of this delegated power, the State Government issued G. O. Ms. No. 2346 (Food and Agriculture) dated 17-11-1967 entitled the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order , 1967. Such orders have to be issued with the prior concurrence of the Central Government and it was so issued.

5. According to clause 3 of the said order every miller carrying on rice milling operations shall sell , to the agent or an officer duly authorised by the Government in his behalf at the notified price and at such percentage of the total quantity of each variety of rice produced or manufactured by him in his rice mill every day as is specified for each district in the schedule.

5A. Sub-clause (2) of cl. 3 then enjoins that every dealer shall sell to the agent or an officer duly authorised the agent or an officer duly authorised by the Government in this behalf at the notified price and such percentage of the total quantity of each variety of rice got milled by him every day out of his stocks of paddy and each variety of rice purchased or otherwise acquired by him for the purpose of sale from persons other than millers or dealers as is specified for each district in the schedule .

5B. Clause 4 puts certain restrictions on sale and movement of rice. It states that no miller or dealer shall sell or agree to sell or otherwise dispose of the rice recovered by milling other than the quantity specified in clause 3 except in accordance with the directions of the Collector .

6. Sub-clause (3) was inserted in clause 4 by G. O. Ms. No. 97 (F & A) SSI dated 6-2-1973.

'The directions of the Collector referred to in sub-clauses (1) and (2) above shall however be subject to such directions as the Government may give in this behalf .'

7. The State Government issued another G. O. Ms. No. 163, Food and Agriculture dated 4th February, 1970 entitling the Andhra Pradesh Rice and Paddy (Restriction on Movement) Order , 1970. Under the said order the term 'Block' is defined to mean any block mentioned in column 1 of the schedule comprising the districts mentioned in the corresponding entry in column 2 thereof.

8. Clause 3 then puts restrictions on movement of rice and paddy. It states that no person shall move or attempt to move or abet the movement of rice or paddy from any place in any Block to any place outside that Block except under and in accordance with a permit issued by the State Government or an officer authorised in this behalf by the State Government, as the case may be.

9. It is thus plain that while the first referred to Order puts some restriction on sale of rice and directs the procurement levy from the millers and dealers , the second referred to order puts restrictions on movement of rice and paddy from one block to another . Such movement is possible only on the basis of a permit issued by the Government or the authorised officer. It is common case that the Collector of a District is authorised to issue the permit under clause (3) of the Andhra Pradesh Rice and Paddy (Restriction on Movement) Order . It is also not in dispute that the miller must hold a permit for the sale for the sale of rice.

10. While so, the Government issued Memo No. 2858/CS. 1/72-1 dated 1-11-1972. It relates to regulation of movement of rice from one block to another in the State. It claims to introduce new procedure. In so far as it is relevant it reads :

'Where the movement is outside the block the permit will not be issued unless those moving hold no objection certificates from the Collectors of the districts into which rice is to be moved. The no-objection certificates should be given to licenced dealers on the basis of the principle -- first come first served , provided , however , those whose antecedents have been bad in dealing in foodgrains may be kept out.'

4. In order to bring about uniformity in the manner of restriction on sale and movement under clause 4 of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order , 1967 these instructions are being issued. Action is being taken separately to amend the order to enable the Government to issue directives in this matter .'

11. Subsequently on 3-8-1973, Memorandum No. 1912/CS- I/73-1 was issued by the Government . Referring to the first-referred to Memo of 1-11-1972 in so far as it is relevant, it states :

'The Collectors are therefore informed that the 'No-objection certificates' should be issued only to such of the dealers as have done business for a full year before 1-4-1973 . Those who had done business for less than one year be done business for less than one year before 1-4-1973 need not be considered for issue of 'No-objection Certificates.'

12. It is the validity of these two memos that is challenged. It was contended by the learned counsel appearing for the petitioners that inasmuch as clause 4 (3) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order 1967, was introduced for the first time only on 6-2-1973, on the date when the Government issued the first Memo the Government had no power to issue such direction.

13. Assuming without so holding that that Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order, 1967 applies to the subject matter of the first Memo even then it is patently clear that on the date when it was issued, the Government had no power to issue such a direction. It has already been seen that clause-4, sub-clauses (1) and (2) authorised only the Collector of a district to issue directions referred to therein. It is only from 6-2-1973 that the Government has been authorised to issue directions and the Collector's directions will be subject to the directions so issued by the Government. What must, therefore, follow is that even if clause 4 is said to apply to the subject matter of the Memo even then since the Government had no power to issue such instructions which would have the force of law on 1-11-1972 the Memo so issued would be without any authority and not valid in law.

14. It was however contended by the learned Government Pleader that the second memo issued by the Government after the instructions of sub-clause (3) in clause 4 would be valid in law and can independently be enforced. This argument assumes that the second Memo is independent of the first and is a self contained one. Even a casual reading of that memo, however would disclose that it merely modifies the earlier memo and has no independent existence of its own. It is not a self contained memo which can be enforced. Unless the requirement of 'No objection Certificate' is seen from the first memo it will not be possible for the Collector to issue such no-objection certificate which will be issued only to such of the dealers as have done business for a full year before 1-4-1973. The second memo, therefore is only an addition to the first and if the first is bad the second if cannot stand on its own legs independent of the first, then it would not be enforceable independently.

15. The Government was conscious that without amending the order it would not be possible to enforce the instructions given in the first Memo as is clear from para 4 of the first Memo. Although the Government promised to take action separately to amend the order to enable the Government to issue the directives in the matter, the Government inserted sub-clause (3) in clause 4 of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order on 6-2-1973. Subsequent to it, the Government ought to have issued fresh directions. But no such fresh directions seem to have been validly issued.

16. No doubt, the first Memo, claims to introduce procedure for obtaining permit. It is however highly doubtful whether the Memo in truth and reality lays down any procedure as such. In effect the grant of permit is made conditional upon a no-objection certificate from the from the Collector of the District into which rice is to be moved. It further lays down the conditions on which such no-objection certificate can be given to licensed dealers. The second Memo puts further restrictions upon the grant of no-objection certificate. Thus the two memos lay down condition precedent for the effective discharge of the statutory duty of the authority concerned to grant permit to move the rice under clause 3 of the Andhra Pradesh Rice & Paddy (Restriction on Movement) Order , 1970. It could not be doubted such a restriction on the power to grant permit can be validly put only by suitably issuing a statutory order either by amending said clause 3 or issuing fresh directions under cl. 4 (3) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order , 1967 in case that provision applies to such a case.

17. We are, therefore, satisfied that the two abovesaid impugment memos are not enforceable. The first was issued without authority. The first was issued without authority and the second has no independent enforceability unless it takes assistance from the first. Both the Memos therefore will have to go as bad.

18. Our attention was drawn to a decision of another learned single Judge in W. P. No. 2830 of 1973, D/- 17-7-1973, (Andh. Pra). A similar argument was advanced before the learned Single Judge that the Government was not vested with any power to empower the Collectors to issue no-objection certificates to the wholesale dealers in rice for the purposes of bringing stocks from surplus districts in the State. The learned Judge, rejected this argument. He observed :

'The transport of rice from a surplus area to a deficit area is restricted and controlled under clause 4 of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order , 1967. A wholesale dealer or a miller has to obtain permission from the Collector of the District for movement of rice outside that district. This memorandum had to be issued by the Government as it was found issued by the Government as it was found that the deficit areas in the State required immediate supply of rice.'

20. Obviously the learned Judge thought that such a Memo can be issued under clause 4 (3) of the Andhra Pradesh Rice Procurement (Levy) and Restriction on Sale Order . If the learned Judge's attention were to be brought to the fact that sub-clause (3) was inserted long after the Memo and till then the Government had no power to issue such instructions, we are sure he would have held the Memo as bad in law.

21. For the aforesaid reasons we allow the writ petition and the Writ Appeal, set aside the judgment of the learned single Judge and hold that the first memo is bad in law and the second memo has no independent existence and therefore is not enforceable . The petitioners will get their costs. Advocate's fee Rs. 100 in each court in each case.

22. Petition allowed.


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