1. The petitioner is a rice mill owner run under the name and style of Sri Nataraja Rice Mill at premises No. 68 Sivagamapurani Road, Veilpattanam, Ramanathapuram Dt, under a licence duly granted to him under the provisions of the Rice Milling IndustryRegulation Act, 1958. In addition to hulling paddy, he is also carrying on in the said mill flour mill business. The petitioner's mill hulls paddy of wholesale merchants holding licences for carrying on business in paddy and rice, and the paddy of small farmers, agricultural labourers and others who have stocks of paddy for their domestic consumptions which they desire to hull. Under the terms of the licence he is required to maintain four registers A, B, C and D.
2. He was served with a notice dated 19-10-1977 by the District Supply Officer, Ramanathapuram, at Madurai, informing him that as per para. 3 of the Tamil Nadu Rice (Procurement by Levy on Millers) Order 1977, hereinafter referred to as the Order, every wholesale rice miller and rice millers having mills which have soaking and drying facilities shall deliver 20 per cent of the rice produced in his rice mill as levy to the Government and that in respect of the other rice mills, the rice miller shall deliver a compounded levy of 18 tonnes of rice per annum. The notice further informed the petitioner that he should provide a separate meter for rice hulling operation in the mill. Aggrieved by these proceedings wherein a demand had been made on the petitioner to deliver 20 per cent of the rice produced in the mill, the present writ petition has been preferred challenging the validity of the proceedings,
3. In the affidavit filed in support of the writ petition it is stated that the order as amended from time to tune is ultra vires and unconstitutional. Under Section 3(1) of the Essential Commodities Act, 1955, the Central Government or the State Government has to form a necessary opinion, No such opinion has been formed by the Central Government and the mere fact of concurrence is not sufficient compliance of the statutory provision.
4. Under Section 3(2)(f) of the Essential Commodities Act an order made under Sub-section (1) of Section 3 may provide for requiring any person holding in stock, or engaged in the production or in the business of buying or selling of any essential commodity to sell the whole or a specified part of the quantity held in stock or produced to the Central Government. The petitioner does not hold any stock and, therefore, there cannot be any order on him. Assuming without admitting that the said order is ultra vires, unconstitutional, offending Articles 14 and 19 of the Constitution, the order provides that the State Government may with the prior approval of the Central Government by notification exempt any rice miller or class of rice millers from the levy specified in Clause (1) subject to such conditions if any, as the State Government deem it fit to impose. There being no guideline with regard to the grant of exemption, such power seems to be arbitrary and therefore, violative of Article 14.
5. Though several grounds have been raised in the affidavit which have been extracted above, Mr. K. Parasaran, learned counsel for the petitioner, urges only two points before me in attacking the validity of the order. Firstly under Section 3(2)(f) of the Essential Commodities Act, a person who holds any stock of the essential commodity notified therein can also be obliged to sell to the State Government, but the rice miller like the petitioner notwithstanding he being a wholesale rice miller does not hold any stock and secondly, there are no guidelines for the grant of exemption. Where such a power is exercised without any guidelines prescribed under the Act, it would amount to an arbitrary exercise of power, and, therefore, would be violative of Article 14. In support of this submission, he relied on the decision in K. T. Moopil Nair v. State of Kerala, : 3SCR77 and particularly, on para. 8 at p. 558.
6. Both these contentions are not tenable. The Essential Commodities Act has been amended in that presently Section 3(2)(f) after the amendment by Central Act 92 of 1976, reads--
'For requiring any person holding in stock or engaged in the production of or in the business of buying or 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 case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government, to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.'
Clause (b) extracted above clearly shows that an order could be issued so as to affect the person who is likely to produce essential commodity or who is likely to receive such essential commodity. The petitioner would fall under either of these categories. Therefore, the argument advanced on the basis of the un-amended section has, necessarily to be rejected.
7. The exemption Clause (3) occurring in the order states--
'The State Government may with the, prior approval of the Central Government by notification, exempt any rice miller or class of rice millers from the levy specified in Clause (1) subject to such conditions, if any, as the State Government deem fit to impose.' In exercise of the powers exemption has been granted under G. O. Ms. 311, Food, D/- 27-12-1977 to the following effect.
After considering the representations received from Millers regarding certain difficulties that have arisen in the implementation of miller's levy scheme, the Government have decided to exempt from levy the cooly-hulling done for agriculturists and retailers by any rice mill. Paddy which is moved from other States into Tamil Nadu is also exempted from the miller's levy.
(i) Cooly-hulling done by any 'A' class rice mill in respect of paddy brought by producers and retailers will not be subjected to a levy. For this purpose the rice mills should maintain separate account for cooly hulling done by them. Deterrent action will be taken against the rice millers for irregularities, if any, noticed in the maintenance of such account.
(ii) All rice mills which do not have soaking and drying facilities and are exclusively undertaking cooly hulling will also be exempted from levy irrespective of the number type and number of hullers fitted in the rice mills.
(iii) Paddy purchased from other States and moved into Tamil Nadu will not be subjected to a levy. The production of relevant documents, railway receipts or other receipts is essential for claiming exemption from levy on paddy which is transported from other States into Tamil Nadu.....'
As such, all wholesale millers will be covered by the impugned order. Merely because some wholesale millers might be granted exemption by exercise of thispower, it cannot be contended that the clause itself is ultra vires. The power of exemption itself has to be exercised depending upon the circumstances of each case. It cannot be postulated in advance as to on what conditions, the exemption should be granted. No doubt, the Act may provide guidelines but the failure to do so will not vitiate the order. The Supreme Court decision in K. T. Moopil Nair v. State of Kerala, : 3SCR77 relied on by the petitioner, has no application to the facts of this case, since the wholesale dealers are brought under the network of the order and it is not open to the petitioner (wholesale dealer) to compare himself with others, for instance, cooly hullers and state that a discrimination is perpetrated. Therefore, I conclude that the writ petition has no merit and it is hereby dismissed.