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Sri Balalji Modern Rice and Flour Mill, Anaparthy and ors. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 197 and 198 of 1983
Judge
Reported inAIR1984AP134
ActsEssential Commodities Act, 1955 - Sections 3 and 3(2); Essential Commodities (Amendment) Act - 1976; Andhra Pradesh Rice Procurement (Levy and Restriction on Sale) Order, 1967; Andhra Pradesh Rice Procurement (Levy and Restriction on Sale) Order, 1927; Constitution of India - Article 19(1)
AppellantSri Balalji Modern Rice and Flour Mill, Anaparthy and ors.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateG.R. Subbarayan, Adv.
Respondent AdvocateGovt. Pleader for Food and Agriculture
Excerpt:
constitution - reasonable restriction - sections 3 and 3 (2) of essential commodities act, 1955, essential commodities (amendment) act, 1976, andhra pradesh rice procurement (levy and restriction on sale) order, 1967, andhra pradesh rice procurement (levy and restriction on sale) order, 1927 and articles 14 and 19 (1) of constitution of india - vires of amendment of order of 1967 vide government orders dated 21.11.1981 and 29.05.1982 challenged - appellants non-trading rice millers - some of appellants are partnership firms others are having proprietary concerns - appellants served with notices under section 3 (1) of order of 1967 and asked to levy 30% of rice milled in their mills - amendment dated 21.11.1981 granted exemption in favour of huller type rice mills milling paddy belonging.....jagannadha rao, j.1. these two writ appeals w. a. nos. 197 and 198 of 1983 arising out of writ petitions nos. 5824/82 and w. p. no. 7263/82 are connected and can be disposed of together.2. in writ petition no. 5824/82 there are 257 petitioners representing various rice mills in east godavari district and in w. p. no. 7263/82 there are 56 petitioners representing certain other rice mills from east godavari district of andhra pradesh. the 1st respondent in each of the petitions is the government of andhra pradesh; the 2nd respondent is the commissioner of civil supplies, hyderabad; the 3rd respondent is the district collector, east godavari.3. the reliefs claimed in both the writ petitions are the issue of a writ of mandamus declaring the amendments to the andhra pradesh rice procurement.....
Judgment:

Jagannadha Rao, J.

1. These two Writ Appeals W. A. Nos. 197 and 198 of 1983 arising out of writ petitions Nos. 5824/82 and W. P. No. 7263/82 are connected and can be disposed of together.

2. In Writ Petition No. 5824/82 there are 257 petitioners representing various rice mills in East Godavari District and in W. P. No. 7263/82 there are 56 petitioners representing certain other rice mills from East Godavari District of Andhra Pradesh. The 1st respondent in each of the petitions is the Government of Andhra Pradesh; the 2nd respondent is the Commissioner of Civil Supplies, Hyderabad; the 3rd respondent is the District Collector, East Godavari.

3. The reliefs claimed in both the writ petitions are the issue of a writ of mandamus declaring the amendments to the Andhra Pradesh Rice Procurement (Levy and Restriction on Sale) Order 1967 as amended by G.O.Ms. No. 468 F & A dated 21-11-1981 and G.O.Ms. No. 245 F & A (CS-I) Department dated 29-5-1982 as null and void and ultra vires of the Constitution and for a direction to the respondents not to demand any levy of the rice from the petitioners under the above-said control order or under any other law.

4. The learned single Judge having dismissed both the writ petitions these appeals have been preferred by the writ petitioners in each of these cases.

5. There is no dispute that all the petitioners are non-trading rice millers in the East Godavari District of Andhra Pradesh. Some of the petitioners are partnership firms while others are having proprietary concerns. The non-trading rice mills-petitioners are either sheller or combined sheller and huller rice mills which are engaged for milling rice on hire basis. The petitioners do not deal in purchasing and selling rice or paddy. All the petitioners have licences under the Rice Milling Industry (Regulation) Act, 1958 for carrying on rice milling operations.

6. The Government firstly issued G.O.Ms. No. 468 F & A dated 21-11-81 stating that in exercise of the powers conferred by Sec. 3 of the Essential Commodities Act, 1955 read with the orders of the Government of India dated 9-6-1978 and with the prior concurrence of the Central Government, the Government of Andhra Pradesh was making the following amendments to the Control Order:

'In the said order-

(1) In the first proviso under sub-clause (2) of Cl. 3, the words 'and got milled in a huller type rice mill' shall be inserted at the end;

(2) for sub-clause (i) of Cl. 3-A, the following sub-clause shall be substitut3ed, namely:-

'E (i) Every person transporting or intending to transport paddy outside the State, shall sell such paddy to the agent or to an Officer duly authorised by the Government in this behalf, at the prices notified in the Andhra Pradesh Paddy (Procurement Prices) Order for the time being in force, and at such percentage of the total quantity of each variety of paddy intended to be transported by him as is specified for each districst in Schedule-II.'

7. In the month of December, 1981 all the petitioners have been served with notices under S. 3 (1) of the A. P. Rice Procurement (Levy) and Restriction on Sale Order, 1967 (hereinafter called the Control Order). As per the said notice each of the petitioners was asked to give a levy of 30% of the rice milled in their mills. It appears that the petitioners were not in a position to meet the said demand made by the District Collector and hterefore for some time the mills were not allowed to conduct their milling operations. The millers then made representations to the Government issued a clarification as per D.O.Lr. No. PI/2875/81 dated 4-1-82. Under the said letter the Government stated that it had been brought to their notice that even in respect of small shellers where ryots got their personal requirements of paddy milled, levy was being insisted in some Districts like East Godavari. The Government pointed out that the real position that any stock processed in mills other than huller mills was subject to levy when it was marketed. The intention of exempting only hullers from the purview of mill levy was that the hullers would generally operate only to meet the local consumption requirements of ryots milling the paddy brought by producers or others for their own consumption purposes. It was pointed out that in a number of districts the baby shellers etc., were too large a number and they actually meet the personal concumption milling requirements locally. The Government was also considereing the advisibility of exempting certain relevant provisions in this regard. In the meantime it was directed that the Collector should act in accordance with this memo.

8. The Government then issued the second impugned G.O.Ms. No. 245 F & A (CS-I) Department dt. 29-5-1982. The said amendment issued in exercise of the powers conferred by S. 3 of the Essential Commodities Act read with the orders of the Government of India dt. 9-6-1978 and issued with the prior concurrence of the Central Government reads as follows :

'In the said order, after the third proviso to sub-clause (2) of Cl. 3, the following proviso shall be added, namely:- 'Provided also that nothing contained in sub-cl. (1) shall apply to rice obtained in non-trading rice mills the capacity of which is 1/2 tonne or less of paddy per hour.'

Explanation: For the purpose of this proviso non-trading rice mill means 'a rice mill, the owner of which is not engaged in buying or selling paddy or rice, but is engaged only in milling rice for hire charges.'

9. The petitioners in these writ petitions came within the purview of the amendments in the sense that such of the petitioners whose capacity was more than half tonne of paddy per hour became liable for the levy as provided under the Control Order. They therefore felt aggrieved by the fact that they became liable for the levy of rice and they filed the two writ petitions abovementioned.

10. With references to the first amendment which came into force under G.O.Ms. No. 468 dt. 21-11-1981 the petitioners stated that under the said amendment the exemption was applicable only to the rice that was milled in a huller type rice mill and not to the other modern type of rice mills. In fact previously all the rice mills were of the huller type but the Government had issued instructions to all the rice millers to modernise their rice mills by introducing huller-sheller type so as to get better quantity of rice with low percentage of broken rice. By virtue of the amendment under G.O.Ms. No. 468 most of the mills which were converted into the huller-sheller type became liable for the levy. The petitioners' broad contention is that they do not trade either in rice or in paddy, they simply dehusk the paddy on hire basis for consumers and other agricultural labourers. The Control Order is applicable, according to them, only to the stocks that are owned and possessed by the mills for the purpose of trading and not to the stock brought to the mills by third parties for milling on hire basis. The petitioners have no ownership right or control over the stock received by them for the purpose of milling on hire basis. Therefore they contended that the levy of rice from them is arbitrary and contrary to the provisions of the Control Order. The restrictions imposed bythe respondents in directing the petitioners to give levy rice is arbitrary and discriminative and violative of Art. 14 of the Constitution of India. It also violates the fundamental rights of the petitioners under Art. 19(1)(g) of the Constitution of India. The amendment issued in G. O. Ms. No. 468 dt. 21-11-1981 discriminates a consumer or an agricultural labourer who gets his paddy milled in a huller type mill and a consumer hwo getshis rice milled in a huller-sheller type mill. Therefore the said amendment is discriminatory and violative of Arts. 14, 19(1)(g) of the Constitution of India. Similarly the second amendment in G. O. Ms. No. 245 dt. 29-5-1982 is also violative of the petitioners' fundamental rights inasmuch as even non-training rice mills with a capacity more than half tonne of paddy per hour are subjected to the levy.

11. A counter-affidavit has been filed on behalf of the respondents. While admitting that the petitioners are owners of various non-trading rice mills of East Godavari District and that the petitioners are licensees and that the Rice Milling Industry (Regulation) Act, 1958 it was stated that the petitioners were not licenced dealers under the Andhra Pradesh Food Grain Dealers Licensing Order, 1964. With regard to the circumstances under which the amendments in G. O. Ms. No. 468 dt. 21-11-1981 were issued, it was stated that the Government in their Memo No. 51196/CS-I/81-3 F & A dated 10-10-1981 enunciated a policy of levy for the kharif season 1981-82 to ensure that under the garb of cultivators, the millers and dealers did not undertake milling operations and consequently avoid the delivery of levy of rice. Pursuant to the said policy the amendment in G. O. Ms. No. 468 dt. 21-11-1981 was issued stating that all hullers that are non-trading would continue to be exempted from any levy whatsoever so long as they do custom milling only for personal consumption and that where such mills move or market rice from this State to another State they shall be subject to levy. This was clarified further bythe Commissioner in his reference dt. 27-11-1981 the petitioners who are non-trading rice millers (other than hullers) were informed through notices to deliver 50% of the levy under Cl. 3 (1) of the Control Order.

12. In the counter-affidavit, with reference to the validity of the second G.O. Ms. No. 245 (F & A) dt. 29-5-1982, it was pointed out in the counter that the Government issued a memo dt. 4-1-1982 through the Commissioner of Civil Supplies and for some time no levy was made on huller mills which were exempted. We have already referred to the above memo. It is then stated that under the second G. O. Ms. NO. 245 dt. 29-5-1982, all mills with a milling capacity of more than half ton per hour were to deliver mill levy at the prescribed percentage (50% of rice recovered) and that the amendment introduced under the said G. O. does not affect the fundamental rights of the petitioners under Art. 14 or 19(1)(g) of the Constitution of India. The said amendment was brought out in public interest and after taking into consideration the capacity of the rice mill. Only bigger mills with a capacity of over half ton per hour or over 40 quintals of paddy per day (of 8 hours working) have been brought under the purview of the Control Order. In addition to the rice milled in huller mills, rice milled in any other small mill with a capacity of half ton or less per hour is exempted from mill levy and they are at liberty to undertake custom milling of paddy of ryots or agricultural labour. It is stated that with a view to curbing the malpractices and the clandestine business transactions in disposing of the rice, under the garb of custom milling without delivering levy, the said amendment has been introduced. In fact, the amendment was introduced with a view to remove the previous anomaly of levying mills on modern type sheller-huller type and exempting huller type mills. Now all mills, whether modern or not, having a capacity of half ton or less per hour alone are exempt. It is then averred in the counter-affidavit:

'The stocks available with the miller, whether such stocks belong to the miller himself or to third parties are liable for delivery of levy at the specified percentage. The procedure in delivering levy of stocks of rice belonging to third parties is laid in sub-cls. (3) and (4) of Cl. 3 of 1967 Control Order ............... As per the said provisions, the petitioner millers need not have control over the stocks of paddy to deliver levy. The provisions of the sub-cls. (3) and (4) of Cl. 3 came into force through G. O. Ms. NO. 439 Food & Agriculture (CS-I) Department, dt. 14-7-1978. The said provisions were so far not questioned and they have been in force for the past 31/2 years.'

It is stated that the amendments are introduced as a regulatory measure under Ss. 3, 5 of the Essential Commodities Act. It is also stated that there is an elaborate procedure prescribed to show the source of paddy procured and disposal of resultant rice, that therefore no genuine transaction of a consumer who gets his paddy milled in a huller type mill is affected, and that-

'No agriculturist has ever represented or initiated legal proceeding complaining against the said amendments to the provisions of the Control Order.'

13. In this writ appeal, it is contended by Sri. G. R. Subbarayan, firstly that the petitioners are admittedly non-trading millers and that therefore the stock of rice resulting from the milled paddy does not belong to them as owners and that their custody is only on behalf of the true owners and hence the levy cannot be demanded from the millers. He submits that the amendment to S. 3(2)(f) of the Act with effect from 25-11-1976 introducing the words 'or engaged in the production' cannot protect the impugned amendments to the Control Order, that in any event the said amendment to S. 3(2)(f) being subsequent to the introduction of the Act into the 9th Schedule of the Constitution under the Constitution (40th Amendment) Act on 27-5-1976, is not protected. He relied upon Prag Ice & Oil Mills v. Union of India, : 1978CriLJ1281a and submitted that even if the Essential Commodities Act was protected that did not mean that every Control Order was also protected. He also relied upon an unreported judgment of Chinnappa Reddi, J. (as he then was) in 1968, to say that levy cannot be demanded from millers who are not owners of the stock. Finally he argued that the amendments to the Control Order are arbitrary and offend Arts. 14 and 19(1)(g) of the Constitution.

14. The learned Government Pleader Sri N. Subba Reddi contended that these submissions cannot be accepted. He justified the amendments as being reasonable and contended that the provisions of the Control Order enabled the levy on millers who do not own the stock and under the sub-clauses (3), (4) of Clause 3 of the Control Order, the owner is provided with an opportunity to show cause against the levy. He relied upon several passages from the ruling of the Supreme Court in Laxmi Khandsari v. State of U. P., : [1981]3SCR92 .

15. From these submissions, two questions arise for consideration :

(1) Whether the levy on millers who are not the owners of the milled rice is invalid?

(2) Whether the amendments to the Control Order introduced by G. O. Ms. No. 468 dt. 21-11-1981 and G. O. Ms. No. 245 dt. 29-5-1982 are invalid as being ultra vires of Arts. 14, 19(1)(g) of the Constitution?

16. We shall take up the first question mentioned above. The basis of the submission of Sri G. R. Subbarayan is the unreported judgment in W. P. No. 1291/68 and batch dt. 27-3-1968.

17. In our opinion the said decision was rendered on the basis of the provisions of the Control Order as they stood then. Further, the judgment in that case shows that the matter was mainly based on the concession made on behalf of the respondents. We shall now elaborate these aspects further.

18. It is necessary to refer to the amendments made in the Act and in the Control Order subsequent to the judgment in W. P. NO. 1291/68 and batch dated 27-3-1968.

As on 27-3-1968l

Sec. 3 (2) :

As at present.

Sec. 3 (2) :

'Without prejudice to the generality of the powers conferred by sub-section (1) an Order made thereunder may provide-

.................................................... (f) for requiring any person holding in stock/any essential commodity, to sell the whole or a specified part of the stock to such a person or class of persons and in such circumstances as may be specified in the order.'

'Without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may provide ..................................

(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying and selling, of any essential commodity-

(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or (b) .................................................'

In the provisions of Cl. 3 of the Control Order, 1967 the following variations may be noticed:

As on 27-3-1968:

Clause 3 : Levy on Rice :

1. (a) : Every miller carrying on rice milling operations, shall sell to the agent or an officer duly authorised by the Government in this behalf at the notified price a minimum quantity of rice of fair average quality equivalent to sixty days production at the milling capacity.

Provided that ....................................

...............................................

(b) .................. ..... .....................

(2) .................. ..... .....................

(3) Every person other than a miller who gets his paddy milled at a rice mill shall sell at the notified price to the agent or an officer authorised by the Government in this behalf such minimum quantity of the rice so milled by him on any day as may be fixed from time to time, by the Collector.

(4) Every miller who comes into possession of any stock of rice, not being his own shall-

(a) furnish all particulars of the owner or other person from whom he got into possession of such stock of rice to the Enforcement Officer or such other person as may be authorised by him in this behalf;

As at present :

Clause 3 : Levy of rice :

(1) Every miller carrying on rice milling operations, shall sell to the agent or an Officer duly authorised by the Government in this 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 (G.O.Ms. No. 1533 dt. 30-10-1972)

(2) Every dealer shall sell to the Agent or an Officer duly authorised by the Government in this behalf at the notified price and at such percentage of the total quantity of :

(a) each variety of rice milled by him every day out of his stocks of paddy; and

(b) each variety of rice purchased or otherwise acquired by him for the purpose of sale from person other than millers or dealers as is specified for each district in the schedule-I.

Provided that nothing contained in sub-clauses (1) and (2) shall apply to the rice obttained for personal consumption by a cultivator from the stocks of paddy grown by him or by an agricultural labour out of the stocks of paddy earned by him as

(b) prove, when so required, to the satisfaction of the Enforcement Officer or the person authorised that he has no power of disposal by sale or otherwise over such stock of rice, and

(c) continue to keep such stock of rice in his custody and not part with its possession in any manner whatever, until a direction is received by him from the Enforcement Officer regarding the manner of disposal of such stock of rice.

wages (G. O. 565 F & A dt. 29-7-77), and get milled in huller type rice mill (underlined words brought in G. O. No. 468 dt. 5-11-1981)

(a) that the cultivator shall not mill more than 3 quintals of paddy and the agricultural labourer not more than one quintal of paddy at a time in a month, and

(b) that he shall produce from the village Karnam .............. a certificate that the paddy so milled is for his personal consumption ........... (G. O. No. 586 F & A dt. 18-6-1974).

Provided also that nothing contained in sub-clause (1) shall apply to rice obtained in non-trading rice mills, the capacity of which is 1/2 tonne or less, of paddy per hour.

Explanation : For the purpose of this proviso non-trading rice mill means 'a rice mill, the owner of which is not engaged in buying or selling paddy or rice, but it is engaged only in milling rice for hire charges.'

(underlined words brought in by G. O. Ms. No. 245 F & A dt. 29-5-1982).

Apart from the above differences in the provisions of Cls. 3 (1) and (2), the following sub-clauses (3) and (4) to Cl. 3 were introduced by G. O. Ms. No. 439 (F & A) dt. 14-7-1978.

'3 (3) : Every miller or dealer in a district who holds any stock of rice on behalf of any person, shall deliver to the agent or an officer authorised byhte Government in this behalf, such percentage of each variety of rice specified for that district in schedule-I on behalf of the person on whose behalf the miller or dealer holds the stock.

3 (4) : Any person whse stock or rice is delivered to the agent or officer authorised by the Government under sub-cl. (3) shall not be entitled to recover from the miller or dealer on account of value of the stocks so delivered notwithstanding any contract or instrument to the contrary. He shall forthwise approach the agent and state why such rice should not be levied from him by Government at the notified price and in case of such levy, he shall be entitled to receive the payment of the cost of the rice taken by Government at the notified price. (G. O. Ms. No. 439 F & A dated 14-7-1978)'.

19. We have set out the relevant changes in the statutory provisions so that the scope and applicability of the decision in W. P. No. 1291/68 and batch dated 27-3-1968 may be appreciated.

20. It will be seen that on the basis of the then existing provisions of hteControl Order, Chinnappa Reddi, J. (as he then was) held in the above batch:

'I have no doubt in my mind that Cl. 3 (1) (a ) is invalid to the extent that it applies to millers who merely mill for hire and do not own or exercise any control over the rice milled by them both because it is an unreasonable restriction on the right to carry on business and because it exceeds the power delegated under S. 3(2)(f) of the Essential Commodities Act. The learned Advocate-General also does not seriously dispute this.'

And the portion of the counter-affidavit filed in that case making the above concession was extracted. The learned Judge then declared Cl. 3 (1) (a) as invalid in so far as it affected millers who merely mill for hire and who do not own or have the authority to dispose of the rice milled by them. Then reference was made to Cl. 3 (4) (c) and it was observed that the clause too was invalid inasmuch as it applied to millers who did not own and who had no control over the rice milled by them. The learned Judges posed the question:

'If the owner insists on removing the stock how is the miller to prevent him? What is the period for which he is bound to keep the stock in his custody?'

and stated that S. 3(2)(f) when it used the words 'the person holding in stock', it was meant only to apply to persons having the right or authority to dispose of the stock. He held Cl. 3 (4)(c) also to be invalid in so far as it affected millers who merely milled for hire and who did not own or have the authority to dispose of the rice milled by them.

21. In our opinion, the learned counsel cannot, in the altered situation arising out of the amended Act and the amended Control Order, rely on the above judgment any longer for the following reasons:

22. First we shall deal with the amended provisions of the Act. It has been noticed that in S. 3(2)(f) of the Act, the words 'or engaged in the production' have been introduced in addition to the pre-existing words 'any person holding in stock' by Act 92/1976 with effect from 25-11-1976. In our opinion the above amendment would clearly cover cases where the person was 'engaged in the production' of rice in a rice mill whether or not he was the holder of the stock as owner, even assuming that the word 'hold' could be said to have been used in the sense of owning the stock.

23. Secondly coming to the amended provisions of the Control Order, it will be seen that every non-trading miller is to deliver the levy, even though he does not own the stock. It is here that the amendments introduced in G. O. Ms. No. 439 F & A dt. 14-7-1978 by adding sub-clauses (3) and (4) come into play.

24. A reading of the above sub-cl. (3) to Cl. 3 would show that it applies to 'millers' who came under Cl. 3 (1) and who hold any stock of rice 'on behalf of any person'. The miller is obliged to deliver the precribed percentage of rice on behalf of the person on whose behalf the miller holds the stock. Under sub-cl. (4) to Cl. 3, the owner of the stock so delivered.

'shall not be entitled to recover from the miller ................ On account of value of the stocks so delivered notwithstanding any contract or instrument to the contrary.'

But his remedy, based on well-known priciples of natural justice, is to approach the Government or the 'Agent under sub-cl. (4) and

'state why such rice should not be levied from him by Government at the notified price and in case of such levy, he shall be entitled to receive the payment of the cost of the rice taken by Government at the notified price.'

25. In our opinion, these provisions were not in existence when Chinnappa Reddi, J. (as he then was) rendered the unreported judgment. The validity of sub-cls. (3) and (4) of Cl. 3 has not been questioned before us.

26. It will be seen that sub-cls. (3) and (4) of Cl. 3 provide for the miller who does not own the stock but who merely has it in his possession, to deliver a percentage of the stock to the Government or its agent. Then an opportunity is provided to the real owner of the stock who has got his paddy milled, to approach the concerned authority objecting to the levy. If the levy is confirmed after hearing the objections of the owner, the owner gets the cost of the price notified for the levy rice. If the owner proves that he is not subject to the levy, the rice delivered by the miller is naturally liable to be delivered back to the owner by the Government or its agent whoever has received the rice from the miller. That appears to be a new and reasonable scheme brought in by the amendments on 14-7-1978 under G. O. Ms. No. 439 F & A.

27. Inasmuch as the said provisions were not there when W. P. No. 1291/68 and batch were disposed of on 27-3-1968 by Chinnappa Reddi, J. (as he then was) we are of the view that the judgment in that case cannot be applied to the cases of the writ petitioners before us. Apart from that the learned Judge has also based his judgment on the admission made in the counter-affidavit and on the concession made in the Court by the learned Advocate-General in that case.

28. We are therefore of the view that under the amended provisions of the Control Order, the miller will not be acting without any authority of law for delivering 50% of the stock to the Government or its agent inasmuch as the delivery to the Government is on behalf of the owner and has clear statutory sanction. The real owner of the stock is also provided with a reasonable opportunity, consistent with principles of natural justice. He can contend that he is not, under law, so obliged to deliver the rice to the Government or its agent. That appears to us to be reasonable and consistent with justice. It also balances the public interest against the rights of the owner of the stock. These new provisions, in our opinion, eliminate the vice in the unamended Control Order, and therefore, we do not find anything unreasonable in these amended provisions.

29. Sri Subbarayan however contends that the purpose behind sub-cl. (3) of Cl. 3 is to cover cases where the real owner of the stock has defaulted to delivery the levy rice but has kept the same in the custody of the miller. According to him, sub-cl. (3) of Cl. 3 is meant to enable the Government or the agent to claim the levy rice from the miller who is having custody of the stock.

30. In our opinion, the use of the words 'on behalf of the person on whose behalf the miller holds the stock' in sub-cl. (3) of Cl. 3 does not mean that this was meant to meet a situation where a levy already made against the owner has not been complied with by him. Sub-cl. (3) of Cl. 3, in our opinion, is intended to apply to cases where the miller has mere possession of the rice and where the miller is allowed to deliver the stock on behalf of the owner on the assumption that the owner is prima facie subject to the levy. By doing so the miller does not offend the contract entered into with the owner of the stock. The action of the miller is protected and is made lawful under sub-cl. (4) which provides that this will be notwithstanding any contract or instrument to the contrary.

31. The interests of the owner are at the same time protected by enabling him to show cause that the assumption upon which the delivery from the miller is ordained is nt valid and that he (the owner) is not, in the particular case, liable for the levy. Sub-clause (4) of Cl. 3 clearly shows that the owner is to be given an opportunity before the competent authority consistent with principles of natural justice.

32. We, therefore, reject the restrictive interpretation put upon sub-cl. (3) of Cl. 3 by the appellant's learned counsel.

33. It is then contended by Sri G. R. Subbarayan that if the milled rice in the possession of the non-trading millers is thus transferred to the custody of the Government or its agents, the millers would no longer be entrusted with paddy for milling by their customers inasmuch as these customers would be harassed by their being driven to the office of the competent authority to prove that they (customers) are not liable for the levy. We do not think that there is any justification for the apprehension of the petitioners. If the owner of the rice is liable to for the levy, it does not matter whether the levy is made directly against him or whether the rice is first taken delivery of from the miller and then a hearing is given to the owner on the question of his liability for the levy. If on the other hand, the owner is not liable for the levy, he has an opportunity to have his stock released from the Government or its agent. There is, in our opinion, no harassment to the owners. Therefore there is no force in this submission. The first question is therefore decided against the petitioners-appellants.

34. Coming to the second question, we shall first deal with the validity of the amendment introduced by G. O. Ms. No. 468 dt. 25-11-1981. The effect of this amendment would be to exempt.

'rice obtained for personal consumption by a cultivator from the stocks of paddy grown by him or by an agricultural labourer out of stocks of paddy earned by him as wages and got milled in huller type rice-mill.'

It is stated in para 3 of the counter-affidavit that the intention of exempting huller mills from levy was that the hullers would generally operate only to meet the personal consumption requirements of ryots and agricultural labourers as stated in the letter of the Commissioner dt. 4-1-1982. Otherwise the bigger mills i.e., the sheller type were trying to indulge in malpractices and claim exemption on the ground that they were milling only small quantities for personal consumption requirements of ryots and agricultural labourers. It became necessary to plug the unauthorised private trade under the guise of milling paddy for personal consumption requirements. As stated in paragraph 6 of the counter, prior to 21-11-1981, the position wasthat all paddy milled either in sheller or huller type rice mills for personal consumption, was exempt from delivery of mill levy. The specific exemption only in favour of huller mills was resorted to with effect from 21-11-1981 with a view to prevent malpractices on the part of the larger mills i.e., the sheller type, from claiming that they are milling for the personal requirement consumption of ryots and agricultural labourers.

35. In our opinion, the said amendment which came into force from 21-11-1981 does not offend either Art. 14 or Art. 19(1)(g) of the Constitution of India. In the light of the reasons mentioned in the counter-affidavit there is no question of any invalid discrimination between huller-type mills and other types of mills. The restriction is necessary in public interest and makes a distinction between small and big mills depending on their capacity. The smaller i.e., huller type caters to local requirements for milling in small quantities by ryots for personal consumption and for agricultural labourers. There is neither any unlawful discrimination nor any unlawful discrimination nor any unlawful restriction. The attack on the basis of Arts. 14 and 19(1)(g) of the Constitution of India is rejected.

36. That leaves the validity of the second amendment G.O.Ms. No. 245 dt. 29-5-82 to be considered. Under this amendment, the exemption is further extended, as stated in para 11 of the counter, to all types of mills whether huller type or sheller type, from the delivery of levy if their capacity is half ton or less per hour. As a matter of fact, after this amendment dt. 29-5-82, the alleged discrimination between huller type and non -huller type no longer exists. It is further stated in para 13 of the counter that the object of this amendment was to ensure that big rice mills-

(i) other than huller type milling paddy of cultivators or agricultural labourers for their personal consumption; and

(ii) other than mills (huller or sheller type) with capacity of half ton or less per hour, did not evade delivery of levy.

37. It is, therefore, clear that instead of confining the exemption only to huller type mills milling paddy for personal consumption of the cultivators or agricultural labourers, the said exemption was extended to other huller type mills or sheller type mills irrespective of the question whether they mill paddy required for the personal consumption of the cultivators or agricultural labourers, or not. The only condition is that it should have a capacity of half ton or less per hour. This amendment, therefore, increases the number of millers who were exempt before 29-5-1982 and benefits larger section of non-trading millers. Further there is, in our opinion, nothing arbitrary or irrational in the condition imposed. A classification based on the capacity of the mill is, in our opinion, valid and is intended to relieve small mills from the obligation of levy as they deal with small quantities of paddy. The fact that the bigger mills were evading the liability to deliver levy was a relevant fact which had led to this classification being based on the capacity. There is equally no unreasonable restriction coming under Art. 19(1)(g) of Constitution of India. This amendment, in our opinion, is perfectly valid.

38. We are satisfied that the two amendments in question satisfy the tests laid down by their Lordships of the Supreme Court in M/s. Laxmi Khandsari v. State of U. P. : [1981]3SCR92 . In that case their Lordships observed as follows (at Pp. 800-1) :-

'As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the Statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen........... If the restrictions imposed appear to be consistent with the directive principles of State policy, they would have to be upheld as the same would be in public interest and manifestly reasonable ........ the restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and danger or evil sought to be avoided ....... The mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition or restrictions will not render them unreasonable.'

39. We are of the opinion that the first amendment introduced in G.O.Ms. No. 468 dt. 25-11-81 granting exemption in favour of huller type rice mills milling paddy belonging to cultivators or agricultural labourers and the second amendment in G.O.Ms. No. 245 dt. 29-5-1982 granting exemption in favour of rice mills whether they are of the huller or sheller type but having the capacity of half ton or less than that per hour, satisfy the tests laid down by the Supreme Court. Therefore there is neither any violation of Art. 14 or Art. 19(1)(g) of the Constitution of India.

40. The learned Judge, in our opinion, was not, however right in stating that the Control Order is protected by reason of the fact that the Essential Commodities Act was placed in the 9th Schedule of the Constitution. As pointed out by their Lordships of the Supreme Court in Prag Ice & Oil Mills v. Union of India : 1978CriLJ1281a the protection granted to the Act does not extend to the control orders and the validity of the two amendments to Cl. 3 of the Control Orders, 1967 has to be decided independently.

41. In the result the writ appeals are dismissed but in the circumstances without costs. Advocate's fee Rs. 150/- in each.

42. The learned counsel for the appellants makes an Oral Application for leave to appeal. In our opinion, no substantial question of law of general importance which requires to be decided by the Supreme Court is involved in these appeals. The request is, therefore, rejected.

43. Writ Appeals dismissed.


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