1. This is a petn. under Article 226 of the Constitution for an order on the opposite party to revoke or cancel the order, dated 7-12-1950, issued under his signature, notifying & directing that husking mill owners were authorised to husk half of their previous permitted quantities upto 14-12-1950 & no husking mill should be run after that date without obtaining further orders, & also for issue of permits for running such husking machines without imposing restrictions on the quantities to foe husked, & for issue of licenses to run the husking machines for husking paddy of the local consumers.
2. The petnr. is the license-holder of three husking mills situate at Duttapukur, Beliaghatta & Changdana in the Barasat Sub-Division within the District of 24 Perganas, holding License Nos. 35 A. L. P., 34 A. L. P. & 31 A. L. P. respectively. Barasat Sub-Division is a deficit & non-procurement area. The petnr. had been carrying on the business of husking paddy at the said mills for about the last 20 years & he was first given licence about the year 1945. Previous to that the petnr. used to obtain permits for husking paddy to the extent of about one thousand maunds per month in each mill. The quantity of paddy permitted to be husked was reduced from time to time until, it is alleged, it has reached the figure of 90 maunds & 75 maunds per month in respect of the first two mills. The petnr. was carrying on the. business of husking paddy & was charging 10 annas only per maund. It is alleged that the sole means of livelihood of the petnr. & his family is the income derived from this husking business.
3. On 7-12-1950, the opposite party issued a general notice to the following effect :
Further to this office order No. 11181 (8) VII-14, dated 16-10-50, 11848 (10) A. P. VII-V( 50), dated 2-11-50, & 11971 (10) A. P. VII-7 (50), dated 16-11-50, it is notified for general information that the husking mill owners are authorised to husk half of their previous permitted quantities up to 14-12-1950. No husking Mill should be run after that date (without obtaining further orders).
Sd. A. K. Ghose.
for A. R. C. P. Alipore
dated 7-12 50.'
4. This Notice appears to have been forwarded to several Police Stations of different Sub-Divisions.
5. By reason of the said order, the petnr. was compelled to close down his mills with effect from 15-12-1950. It is stated that the petnr. had been seeing the A. R. C. P., Alipore, & demanding justice from him by cancellation of that Order & by granting of fresh permits & licenses but to no effect. It is stated that the sole business of the petnr. is to husk boiled paddy brought by the customers who are permitted by the authorities to husk their paddy for their own consumption. It is farther stated that the system of issuing these permits is that a list of persons who require the paddy to be husked for their own consumption is prepared in duplicate & the list is carefully checked & verified by the local procurement officer who sends the list for issuing husking permits in favour of such interested persons. In fact, however, it appears from the permits which have been annexed to the petn. that these permits are issued in the name of the proprietor of the mill & a list of persons who are to get their paddy husked in these mills is attached to such permit. It is stated that as a result of this Order & the closing down of the husking mills, the price of rice shot up in the locality to a certain extent. It is stated that the restriction imposed by the A. B. C. P., Alipore, regarding the amount of paddy to be husked is an unreasonable restriction. It is pointed out that the quantity allowed to be husked in the neighbouring District of Nadia & in the Sub-Division of Basirhat is a minimum of about 800 maunds
6. The petnr. challenges the Order, dated 7-12-1950, as illegal & in violation of the fundamental right of the petnr. guaranteed under Article 19(1)(G) of the Constitution & he challenges clauses NOS. (9), (11), (13) & (15) of the West Bengal Rice Mills Control Order, 1949 as infringing the Constitution. The petnr. also challenges the system of issuing permits under the Rice Mills Control order as violating Article 14 of the Constitution.
7. It is argued by Mr. Das, learned Counsel for the petnr. that the Order directing that no husking mill should run after 15-12-1950, without further orders & thus forbidding the carrying on of the business which provides the only means of livelihood of the petnr. is an invasion on his fundamental right given under the Constitution of carrying on his trade & business freely & must be held to be illegal. Mr. Sen, the Senior Govt. Pleader, submits that what was notified on 7-12-1950, is not an Order but it is an advice which was given to the husking mill owners that they should refrain from husking any paddy from 15-12-1950. He contends that it was open to the owners of the husking mills to disregard this advice & go on husking in spite of the Notfn.
8. I am unable to accept this interpretation put by Mr. Sen upon the Notfn. in question. The Notfn. bears the heading 'Order' & it purports to be 'in continuance of previous orders' of the same office of which numbers & dates are given & it states in clear & unambiguous language that no husking mill should be run after the 14th December 'without obtaining further orders', I have no doubt that the Notfn. dated 7-12.1950, was intended to be a general prohibitory order directing the stoppage of the running of the husking mills after 15-12-1950. The petnr. was clearly given to understand that the Govt. had decided to cancel all existing licenses & therefore, the A. K. C. P., although approached, was unable to issue any permit, or to do anything else unless the Govt. decided otherwise. (See para. 8 of the petn).
9. Now Clause 9 of the Rice Mills Control Order is as follows :
'Notwithstanding anything contained in this order, the Comr. may, without assigning any reason, direct any appln. for the issue of a license, or for the renewal of a license be refused.'
& Clause 13 of the order is as follows :
'(1) No licensee shall contravene any of the conditions of his license. If any such licensee contravenes any of the said condition, then without prejudice to any other action that may be taken against him, his license shall be liable to be cancelled, or suspended by the Comr.
(2) Notwithstanding anything contained in sub-para (1) the Provincial Govt. may, in special circumstances, without giving any previous notice, or without assigning any reason, cancel or suspend a license issued under this Order.'
10. It is under these two sections that a license issued under the Control Order can be cancelled or suspended by the Provincial Govt. without assigning any reasons & an appln. for a fresh license may be refused by the Comr. without assigning any reason therefor. It is submitted that the effect of the order of 7-12-1950, is that the license of this trader stands suspended or cancelled & his business has come to a standstill & the mills have to be closed down. There can be no doubt that the Rice Mills Control Order does not contemplate the total closing down of the husking mills, nor does it confer power on the authorities responsible for carrying out the provisions of the Act to make any order prohibiting the carrying of the business of the husking mills, or of the husking trade. It may be noted that no reasons are set forth in the counter-affidavit filed on behalf of the opposite party as to why the order dated 7-12-1950, was issued. An order which arbitrarily or excessively invades the right of an individual cannot be said to contain the quality of reasonableness. Clauses 9 & 13 of the Rice Mills Control Order which no doubt empower cancellation or refusal of a license already issued & refusal to issue a new license without assigning any reasons. But there can be no doubt that these provisions overstep the limits of reasonableness & must be held to be invalid in the face of the written Constitution of India. These provisions do not give any opportunity to the license-holder to make any representation against the action taken by the authorities concerned, or to protect their interest against any wrongful action of the authorities & they further provide scope for the exercise of the power conferred on the authorities in an arbitrary & capricious manner, if they so choose to do it. It is clear law that an arbitrary or capricious exercise of the power is no exercise at all. If no reasons are assigned, it is not possible to know or judge whether the order is a valid or a mala fide or arbitrary order. It may be noted that, the S. C. in the case of Chintamanrao v. The State of Madhya Pradesh, : 1SCR759 , has held that an Act imposing total prohibition of carrying on the business of manufacture of Biris during the agricultural season arbitrarily interferes with the private business & cannot be said to be reasonable restrictions on the fundamental right conferred by Article 19(1)(g) & is, therefore, void, as not being in conformity with Part III of the Constitution.
11. I hold that the order dated 7-12-1950, is in excess of the powers of the opposite party in this case & must be set aside.
12. It was also contended by Mr. Das that the System of granting permits as provided by Clause 15 of the Rice Mills Control Order infringes Article 14 of the Constitution. I am unable to accept this contention. There is nothing in Clause 15 of the Control Order which makes it inherently unconstitutional. As to what is the true meaning & import of Article 14 of the Constitution has been brought out very clearly by the decision of the S. C. in the case of Chiranjit Lal v. The Union of India, : 1SCR869 . It is unnecessary to reiterate the propositions which have been enunciated in that case over again. (Per Mukherjea J.) Para. 64 p. 57-58.
13. It may be noted that the system of permit has the object of controlling the carrying of the trade by the Govt. & the system seeks to prevent unfair competition & any wrongful practice, such as blackmarketing or other similar practices. It is undoubtedly a salutory system but if the exercise of this power of issuing permits is abused, the person aggrieved has the right to have it controlled, or set right by the Ct. The petnr.'s grievance is that the quantity which he is allowed to husk is uneconomical & unreasonable. But this question depends on various factors such as the capacity of the mills, the number of Mills in the locality the number of consumers & other factors. There are not enough materials before this Ct. to enable it to come to any definite finding that the quantity allowed was unreasonable, or the officer responsible had not exercised his power properly or reasonably.
14. It was contended by Mr. Sen that the opposite party is a ministerial officer who is carrying out the directions of the superior authorities & the order, dated 7-12-1950, is an order of these superior authorities who are not before the Ct. & so mandamus cannot issue against the opposite party.
15. The order itself shows that it is issued by the opposite party There is nothing in the counter, affidavit to suggest that the opposite party had no authority to make or issue this order, or that he is only a ministerial officer who has purported to have issued the order in obedience to the directions of his superior officers On the other hand, para. 8 of the counter-affidavit makes it quite clear that the opposite party takes upon himself the responsibility of making or issuing this order & the other paras, in the counter-affidavit proceed on the footing that the order is his order. The west Bengal Rice Mills Control Order, 1949, defines the term 'Commissioner' in Clause 3 (a) as follows :
'It means the Food Comr. the Govt. of West Bengal, or any other officer authorised by him in writing in this behalf to perform all or any of the functions of the Comr. under this Order.'
16. The definition shows that any officer authorised by the Comr. can perform his functions or duties under the Rice Mills Control Order, 1949. In the absence of anything to show to the contrary, it should be presumed that the opposite party is authorised to issue or pass the order that he has purported to do in this case.
17. In the result, the petn. succeeds in part & the Rule is made absolute in terms of prayer A & B of the petn. The petnr. is entitled to apply for a license & the opposite party is directed to deal with such appln. in accordance with law.
18. The petnr. is entitled to costs of these proceedings, the hearing fee being assessed at three gold-mohurs.
19. Certificate under Article 132 of the Constitution is granted to both sides.