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Palaniswami Gounder and ors. Vs. State of Madras Represented by Taluk Supply Officer, Karur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case Nos. 373 etc. of 1967
Judge
Reported inAIR1970Mad343; 1970CriLJ1232
ActsMadras Paddy and Rice (Movement Control) Order, 1966; Madras Paddy and Rice Dealers (Licensing and Regulation) Order, 1966; Essential Commodities Act - Sections 3(1)
AppellantPalaniswami Gounder and ors.
RespondentState of Madras Represented by Taluk Supply Officer, Karur
Appellant AdvocateS. Sethuratnam, ;T. Somasundaram, ;B. Soundarapandian, ;Fyzee Mohmood, ;V.C. Palaniswami, ;G. Gopalaswami, ;A. Nagarajan, ;T.S. Arunachalam, ;S.R. Srinivasan, ;V.P. Raman, ;K.A. Panchapakesan, ;N. Cha
Respondent AdvocateAsst. Public Prosecutor
DispositionRevision allowed
Cases ReferredState of Madras v. Vanamamalai Mutt
Excerpt:
civil - validity of order - section 3 (1) of essential commodities act and madras paddy and rice (movement control) order, 1966 - conviction for violating provisions of order challenged on ground validity of order - impugned order issued government without forming opinion that it is necessary and expedient to issue - forming of such opinion prior to issuance of order mandatory under section 3 (1) - impugned order illegal - conviction for violating illegal order also set aside. - - but the advocate general could not satisfy us that the government was at the relevant point of time satisfied about the necessity or expediency of the order......also by-- (a) such officer or authority subordinate to the central government or (b) such state government or such officer or authority subordinate to the state government, as may be specified in the direction.' by virtue of section 5 of the act, the central government in notification g. s. r. 906 dated 9-6-1966, published in the extraordinary issue of the gazette of india, delegated its power to the state government exercisable under section 3 of the act.3-a. it is contended by the learned counsel for the petitioners in these cases that the impugned order is not valid as it is not proved that before the order was passed, the state government as required under section 3 of the act had formed the opinion that it was necessary or expedient to pass such an order for the purposes.....
Judgment:
ORDER

Krishnaswamy Reddy, J.

1. Batch I:-- In all these petitions, a common point has been raised that the prosecution under Clause 3 of the Madras Paddy and Rice (Movement Control) Order 1966 (hereinafter called 'the Order') is unsustainable for the reason that the said order is invalid as the condition requisite for passing such an order has not been conformed.

2. The Madras Paddy and Rice (Movement Control) Order 1966 the Madras Paddy and Rice Dealers (Licensing and Regulation) Order, 1966 and the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, were all passed by the State of Madras on 20th June 1966. These orders were made in exercise of the powers conferred by Section 3 of the Essential Commodities Act 1955 (Central Act 10 of 1955) read with the Government of India, Ministry of Food, Agriculture, Community Development and Co-operation (Department of Food) Notification G. S. R. 906 dated 9th June 1966.

3. Section 3(1) of the Essential Commodities Act (hereinafter called the 'Act') reads thus:--

'If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential, commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.'

Section 5 of the same Act runs thus:

'The Central Government may, by notified order direct that the power to make orders under Section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-- (a) such officer or authority subordinate to the Central Government or (b) such State Government or such officer or authority subordinate to the State Government, as may be specified in the direction.'

By virtue of Section 5 of the Act, the Central Government in Notification G. S. R. 906 dated 9-6-1966, published in the Extraordinary issue of the Gazette of India, delegated its power to the State Government exercisable under Section 3 of the Act.

3-A. It is contended by the learned counsel for the petitioners in these cases that the impugned order is not valid as it is not proved that before the order was passed, the State Government as required under Section 3 of the Act had formed the opinion that it was necessary or expedient to pass such an order for the purposes mentioned therein. The preamble of the order does not show that such opinion was formed by the State Government before passing the order. Nor was any material placed before this Court that such opinion was formed by the State Government. But the Secretary to Government, Food Department, Government of Madras, filed an affidavit on the 12th December 1969, stating that he consulted the Food Minister, had a discussion over the matter and on his specific instructions, the order in question came to be passed and issued. It is not the case of the State before me that it was not necessary to form an opinion provided under Section 3(1) of the Act. But it is stated that such opinion was formed in consultation with the Minister concerned.

4. The question now is, in the absence of a recital in the preamble itself that the State Government had formed an opinion that it was necessary and expedient for the purposes mentioned therein and in the absence of placing any material before the Court that such opinion was formed, whether the affidavit filed by the Secretary at this late stage without any other material to corroborate the averments made in the affidavit, specially when controverted by the counsel for the petitioners, can be accepted.

5. We have already noted that besides the impugned order, the other two orders, namely, the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order 1966 and the Madras Paddy and Rice Dealers (Licensing and Regulation) Order 1966, were passed on 28th June 1966. On an earlier occasion, the validity of the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order 1966 was challenged on several grounds, one of the grounds being that the State Government before passing that order did not form an opinion that it was necessary or expedient to pass the said order. Kailasam, J. who heard the petition, held that the State Government had not complied with the provisions of Section 3(1) of the Act before issuing the said order. On an appeal filed against that order, the Division Bench consisting of Anantana-rayanan, C. J. and Natesan, J. agreed with Kailasam, J. on this point and held that there was no material to show that the State Government complied with the requirements of Section 3(1) of the Act. It may be relevant to note the following observations made by the Division Bench in State of Madras v. Vanamamalai Mutt, : (1969)2MLJ324 :

'The objection taken for the respondent is not a mere technical one. Drastic powers could be taken by the State and its enforcement entrusted to a whole hierarchy of officials. The Government has to exercise its mind and consider whether the situation demanded the assumption of such powers, and the expediency of the course. These are matters to be determined at the highest level of the Government to its subjective satisfaction. Matters of policy and expediency arc executive functions, and if the opinion had not been formed at the relevant time the fact that later on the State Government stands by the order is neither here nor there. The State Government is here acting as delegate of the Central Government and of the Parliament which permitted the delegation, the pre-condition for its exercise of the delegated power being the formation of opinion as to the necessity or expediency for the order. In the absence of such an opinion, the Government has no power to issue the order.

Having regard to the importance of the matter and the fact that the order is for regulating and providing for equitable distribution of paddy and rice, despite objection by counsel for the respondents, we invited the learned Advocate General to satisfy us even though it was the appellants' case that the Government had formed an opinion before the issue of the order in question. To facilitate the production of the relevant material, we also adjourned the hearing. But the Advocate General could not satisfy us that the Government was at the relevant point of time satisfied about the necessity or expediency of the order. The Advocate General placed before us certain files relating to the passing of the order in question and frankly stated that it does not appear that the matter went up to the stage of consultation at the ministerial level before passing of the impugned order. We regret to notice that a matter of such considerable importance affecting the rights and liberties of the people does not appear to have been considered by any Minister. As we have stated earlier, there was current then, the Madras Paddy and Rice (Declaration and Requisitioning of Stock) Order 1964, issued under Rule 125 of the Defence of India Rules. As a routine matter in supersession of that order, the present order under the Essential Commodities Act has been issued, From the notings on the files, produced. It appears to have been thought sufficient if orders under the Defence of India Rules were re-issued under the Essential Commodities Act, utilising the occasion for incorporating whatever changes were considered necessary.'

6. It is significant to note that either before Kailasam, J. or before the Division Bench, no affidavit has been filed similar to the one filed before me stating that only after oral consultation with the Minister concerned the order was passed, I emphasise this fact for the reason that, as already noted, the impugned order in these petitions has been passed along with two other orders, one of which was the subject-matter of the decision of the Division Bench. If oral consultation was a fact, there is absolutely no reason for the Secretary concerned for not having filed ' an affidavit about the alleged consultation. On the other hand, we observed in the observation made by the Division Bench that the Advocate General placed before them certain files relating to the passing of the order in question and frankly stated that it did not appear that the matter went up to the stage of consultation at the ministerial level before passing of the impugned order. It is not the case of the prosecution that there were different files in respect of passing of the three orders. No such material was placed before me.

7. Later, the validity of Madras Paddy and Rice Dealers (Licensing and Regulation) Order 1966 was questioned in W. P. Nos. 1274 of 1968 and 2869 of 1967 (Mad) subsequent to the decision in 1969-2 Mad LJ 324 of the Division Bench, D/- 23-10-1967. In those petitions the Secretary to Government, Food Department, filed an affidavit stating that the impugned order was passed after carefully going through all the formalities, prescribed therefor and before issue of such order, he (the Secretary) contacted the then Food Minister, had a discussion over the matter and on his specific oral instructions, the order In question came to be passed and issued. The same secretary filed the present affidavit which is the exact reproduction of the averments made in the earlier affidavit. Kailasam, J. held that in the absence of any corroborative material in the file and the fact that an affidavit was not filed on an earlier occasion when another order was the subject-matter before himself and later before the Division Bench, he was not persuaded to accept the statement made by the Secretary, and rejected it The learned Judge ultimately held that that order was invalid. I respectfully agree with the observation of Kailasam, J. in respect of the affidavit filed by the Secretary to Government, Food Department.

8. In the affidavit filed before me, we do not have even the minimum details of the alleged oral discussion between the Secretary and the Food Minister, such as, the date and the time of discussion. The date of discussion may be relevant especially when it is not supported by any document, for the opposite side to know whether such a discussion could have taken place on the alleged date. It may be open to the opposite side, if certain date is given, to contend that the concerned Minister was on camp or that he would not have been available on the alleged date and time. I, therefore, hold that it is not established that before passing the impugned order, the State Government formed an opinion that it was necessary and expedient to pass such an order for the purposes mentioned in Section 3(1) of the Act The impugned order is invalid. The convictions and sentences of the petitioners in all these cases are set aside. The pending proceedings in certain cases are set quashed. The fines, if paid, will be returned to the respective petitioners. The orders of confiscation in these cases are set aside. The lorries concerned in Crl. R. C. 1234 and 1441 of 1967 and 110, 116 and 392 of 1968 will be returned to the respective petitioners. The sale proceeds of the paddy or rice as the case may be, would be returned to those persons who are entitled to them. On the applications filed by the parties, the lower Court will go into the question of ownership of the paddy or rice as the case may be and after due enquiry shall return the same to the persons entitled to them. The properties concerned in Crl. R. C. 666 and 667 of 1968 will be disposed of by the lower Court after enquiry. The revision petitions are allowed.

9. Batch II. In all these petitions the petitioners were convicted under Clause 3 of the Madras Paddy and Rice Dealers (Licensing and Regulation) Order 1966 read with Section 7(1)(a)(ii) of the Es-sential Commodities Act, 1955. For the reasons given by me in the order relating to the previous batch, I hold that this order is also invalid. No affidavit has been filed by the Secretary to Government, Food Department, similar to the one filed in the previous batch. Kailasam, J. in W. P. Nos. 1274 of 1968 & 2869 of 1967 (Mad) held that the impugned order is invalid. I respectfully agree with him. The convictions and sentences of the petitioners in these cases are set aside the fines, if paid, will be refunded to the respective petitioners. The orders of confiscation in these cases are set aside. The sale proceeds of the paddy or rice as the case may be would be returned to those persons who are entitled to them. On the applications filed by the parties, the lower Court will go into the question of ownership of the paddy or rice as the case may be and after due enquiry, shall return the same to the persons entitled to them.

10. The revision petitions are allowed.


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