1. This is an application under Article 226 of the Constitution against an order of the Subdivisional Magistrate of Ghumsur passed in exercise of the powers conferred on him by Clause (f) of Sub-section (2) of Section 3, Essential Supplies (Temporary Powers) Act 1946, directing the sale to the Government purchasing agent of 1000 maunds of paddy in the possession of the petitioner. The order of sale was passed on 15-3-1951 and as no stay was granted by this Court the order was, in due course, executed and the paddy taken possession of by the purchasing agent on behalf of the Government more than eleven months ago. The order was made in pursuance of the policy of procurement and it may be reasonably assumed that the paddy has been sent in due course to deficit areas, presumably outside the State of Orissa. It is also extremely unlikely that the paddy has not yet been consumed.
2. Mr. P. Misra on behalf of the petitioner urged that Clause (f) of Sub-section (2) of Section 3, Essential Supplies (Temporary Powers) Act, 1946, is invalid and inoperative in view of the fundamental rights guaranteed to a citizen under Article 19(1)(f) of the Constitution. The impugned clause is as follows :
'Section 3. Powers to control production, supply, distribution etc. of essential commodities:
(1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein.
(1-A) An order made under Sub-section (1) shall:
(a) in the case of an order of a general nature or affecting a class of persons be notified in the Official Gazette; and
(b) in the case of an order affecting an individual person, served on such person :
(i) by delivering or tendering it to that person, or
(ii) by affixing it on the outer door or some other conspicuous part of the premises in which the person lives.
2. Without prejudice to the generality of the powers conferred by Sub-section (1) an order made thereunder may provide:
X X X X(f) for requiring any person holding stock of an essential commodity to sell the whole or a specified part of the stock at such prices and to such persons or class of persons or in such circumstances, as may be specified in the order.'
Mr. Misra's contention is that the said clause authorises the competent authority to direct the sale to the Government purchasing agent of the whole of the stock of paddy of a person thereby denuding him of the food-stuffs required for his family consumption. Such a law was urged to be invalid inasmuch as it imposed unreasonable restrictions on the rights of a citizen to hold and dispose of his property. Mr. Misra, however, conceded that in the present case the Magistrate concerned did not direct the sale of the whole of the petitioner's paddy but only that portion which the Magistrate thought was in excess of the normal requirements of the petitioner. The Magistrate appears to have followed some executive instructions issued to him by the District Magistrate while estimating the paddy required for the needs of the petitioner. Mr. Misra urged that if the law itself did not provide for immunity from compulsory sale of that portion of the essential commodity which is necessary for the normal requirements of the owner such a law would be unreasonable and invalid notwithstanding the fact that in administering the law the competent authority may pass a reasonable order. Doubtless there is some force in this contention because the impugned clause authorises the compulsory sale of the whole of the stock of paddy of a person if the authority concerned considers that such an order is necessary for securing the equitable distribution and availability at fair prices of that essential commodity. In exercise of this power if a competent authority directs the sale of the whole of the stock of paddy in a particular area and sends it elsewhere thereby reducing the inhabitants of that area to starvation his order, however unreasonable it may be, would be a valid order under the impugned clause. Mr. Misra, therefore, urged that any law which authorises the passing of such an unreasonable order imposes unreasonable restrictions and would, therefore, contravene the fundamental rights guaranteed under Article 19(1)(f) of the Constitution.
3. Mr. Misra's argument is undoubtedly attractive. But I think it will be academic to discuss its full implications in the present case. As already pointed out, the requisitioned paddy appears to have disappeared long ago and even if Mr. Misra succeeds in his legal objection there can be no question of restoring the paddy to the petitioner. All that he can reasonably claim is its fair price and the order of the Magistrate itself shows that the Government were willing to give him fair price for the paddy. Thus no further relief can be granted to the petitioner in the present case.
4. Mr. Misra, however, urged that it was very necessary to decide this legal question in view of the likelihood of the Magistrates passing such orders in the near future. I am not, however, satisfied that this will be a good ground for discussing this question which is undoubtedly academic in the present case. The aggrieved party can always approach the High Court for a decision of this important question of law when it )s a live issue in any case.
5. The application is, therefore, rejected. There will be no order for costs.
Jagannadha Das, C.J.
6. I agree that this application should be rejected without costs. But I am bound to say that the legal argument, raised on behalf of the applicant, about the invalidity of Clause (f) of Sub-section (2) of Section 3, Essential Supplies (Temporary Powers) Act, 1946 as being inconsistent with the fundamental rights guaranteed under Article 19(1)(f) of the Constitution appears to me to be prima facie correct On behalf of the State, we have not been shown any sufficient reason or argument to the contrary. If we have refrained from pronouncing an final opinion on the serious question raised in its application to this case, it is because it has become academic. In view of the possible dislocation of the procurement machinery of the Government that may be caused by any decision which a Court may be called upon to pronounce in an appropriate case, the validity or otherwise of the legal provisions in this behalf is one that must receive the immediate attention of the Government and the close scrutiny of its legal advisers.
(Let a copy of this judgment be forwarded to the Government through the Advocate-General).