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Ramjiban Gurchait Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 222 of 1953
Reported inAIR1954Cal56,57CWN913
ActsConstitution of India - Article 31(2); ;Essential Supplies (Temporary Powers) Act, 1946; ;West Bengal Foodgrains (Intensive Procurement) Order, 1952
AppellantRamjiban Gurchait
RespondentState of West Bengal and ors.
Appellant AdvocateAtul Gupta, ;Ranjit Kumar Banerjee and ;Bimal Kumar Banerjee, Advs.
Respondent AdvocateHemendra Kumar Das, ;Jagneswar Majumdar and ;D.N. Basu, Advs.
Cases ReferredMohammad Yasin v. Town Area Committee
- true that the act taken by itself does not provide for their exclusion. but, as pointed out already, rules 5 and 6 ..... exclude these two categories in express terms, and these rules were brought into force simultaneously with the charging sections 5 and 10 on 1-11-1952. the position therefore was that, on the day when the general tax and the special tax became leviable under the act, sales or purchases of the kind described under article 286(1)(b) and (2) stood in fact excluded from taxation, and the state of bombay cannot be considered to have made a 'law imposing or authorising the imposition of a tax' on sales or purchases excluded under the aforesaid clauses of article 286. the act and the rules having being brought into operation simultaneously, there is no obvious reason why.....

Sinha, J.

1. This is an application in respect of procurement under the West Bengal Poodgrains (Intensive Procurement) order 1952 (hereinafter referred to as the 'order'). The facts are as follows. The petitioner owns agricultural lands at Bhyarapur in the district of Howrah. He is a 'producer' as denned by the order. On or about 7-11-1952, a notice in form 'ka' (corresponding to-form 'A') was served upon the petitioner. The petitioner thereupon filed a declaration in Form 'kha' (corresponding to form 'B'). On or about 18-1-1953 a notice in form 'C' was served upon the petitioner, directing him to deliver 769 maunds of paddy. It appears that the petitioner filed an appeal against the directive, which appeal has been dismissed. It is stated in the petition that the appeal was dismissed upon a technical point. Nothing is mentioned as to what the technical point was and the petitioner has not taken any steps against it. However, in this application, Mr. Gupta appearing on behalf of the petitioner has argued a constitutional point, by reason of which he claims the order to be ultra vires the constitution. It is therefore unnecessary to consider whether I can go into the other points raised in the petition.

2. The point has been formulated thus: Mr. Gupta assumes for the purposes of this application that the law applicable is the Essential Supplies (Temporary Powers) Act 1948, (hereinafter referred to as the 'Act') and the Order, promulgated by the Government of West Bengal under powers conferred by the Act read with Notification of the Government of India, No. PY-603-(2)/1 dated 21-10-1946. He refers to para. 3(5) of the Order which runs as follows:

'Delivery to the Director or to the persons appointed by him of the available surplus referred to in Clause (b) of Sub-para. (3) shall be made at such place or places and on or before such date and in such manner as may be specified by the Director in that behalf in the said order. The price of food-grains so delivered shall be paid in accordance with the price of foodgrains fixed and notified by State Government from time to time:

Provided that it shall be lawful for the director to make deductions on prices so fixed by the State Government

(a) on account of poorness of quality of stocks delivered at such rates as may be specified in that behalf by the state Government from time to time and notified in the official Gazette.

(b) For defraying transport costs and other incidental charges, according to such rates as may be fixed in this behalf by the State Government from time to time and notified in the official Gazette in case the foodgrains are not delivered at the specified date or in the specified manner.'

3. The order was promulgated by notification No. 10363 F.D./F.D./14R/21/52 dated 22-10-1952, published in the Calcutta Gazette (Extraordinary) dated 23-10-1952. The preamble runs as follows :

'In exercise of the power conferred by Sub-section (1) of Section 3, Essential Supplies (Temporary Powers) Act 1946 (24 of 1946) and in particular by Clauses (c), (d), (f), (h), (i) and (j) of Sub-section (2) of that section, read with the notification of the Government of India in the Department of Pood No. PY-603(2)/1 dated 21-10-1946, the Governor with the concurrence of the Central Government is pleased to make the following order, namely:'

4. On the same date and in the same Gazette extraordinary, in fact, immediately following the above notification, were published notification Nos. 10364 P. D., 10355 P. D., 10366 P.D., 10367 F.D. and 10368 F.D. Particulars thereof are as follows:


10364 F. D....Specifies the officers who are to exercise powers under the order.

10365 F. D....Specifies the schedule of rates of prices per mound for various qualities of Paddy and Rice in the various districts of the State, which are payable in respect of procurement under the order

10366 F. D....Specifies the rates of deductions to be made for poorness of quality.

10367 F. D....Specifics the charges for transport, weighing, bagging, sewing, marking and staking which are to be deducted fromthe prices payable.

10368 F. D....Specifics the scale of allowances to be granted to producer to meet his requirements.

5. Mr. Gupta draws my particular attention to the Notification No, 10365 F.D. the preamble of which runs as follows:

'In exercise of the power conferred by Sub-section (1) of Section 3, Essential Supplies (Temporary Powers) Act (24 of 1946) read with Clause (c) of Sub-section (2) of that section and with Sub-para. (5) of para. 3 of the West Bengal Foodgrains (Intensive Procurement) Order 1952, published, under notification No, 10363 F.D. dated 22-10-1952, the Governor is pleased to fix for the districts mentioned - in column 1 of the schedule below the rates of prices mentioned in the corresponding entries in columns 2, 3, 4, 5, 6 and, 7 thereof to be the rates of prices per maund which shall be payable in paying prices to a producer who is called upon under Sub-para. (3) (b) of para. 3 and para. 4 of the said order to sell foodgrains of the type and quality mentioned respectively in the headings to the said columns 2,3,4,5,6, and 7 in respect of which such rates of prices have been so specified:'

6. Mr. Gupta's precise point is as follows. He argues that under Article 31(2) of the constitution, no property movable or immovable including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. He says, that the law in this case is the Act and the Order, as promulgated by Notification No. 10363 P. D. So, read, the law according to him neither fixes the amount of the compensation, nor specifies the principles on which and the manner in which, the compensation is to be determined and given. If the other notifications mentioned above are to be excluded from my consideration, the argument is one of substance. To say that the price will be as will be fixed from time to time, is certainly not by itself a fixation of the price. Nor can it be a specification of any principle or manner of determination, since to say that it will be as the Government fixes it, is necessarily so indeterminate as to embody no principle at all.

7. Mr. Gupta pointed out by way of comparison, the provisions as to compensation under the Government of India Act 1935, the Defence of India Act 1939 and the rules made thereunder and the Land Acquisition Act 1 of 1894. Section 299(2), Government of India Act 1935 (which was in operation when the Essential Supplies (Temporary Provisions) Act 1916 was passed), was in similar terms to Article 31(2) of the Constitution, save and except that movable property was not included within its scope. The Defence of India Act was promulgated after proclamation of an emergency under Sub-section (1) of Section 102, Government of India Act 1935. The power to requisition any property movable or immovable by making rules to empower any authority to make an order to that effect is contained in Section 2(2)(XXIV). Section 19 lays down the manner and principles according to which compensation was to be determined. It was to be determined by an arbitrator appointed for that purpose and he was required to have regard to the provisions of Sub-section (1) of Section 23, Land Acquisition Act, so far as the same could be made applicable.

8. Rule 75A (1), Defence of India Rules, provided for the requisition of property moveable or immoveable. Sub-rule (4) provides as follows: 'Whenever in pursuance of Sub-rule (1) or Sub-rule (2) the Central Government or the Provincial Government requisitions or acquires any move-able property the owner thereof shall be paid such compensation as that Government may determine.'

9. Section 23, Land Acquisition Act specifies the matters to be taken into consideration in determining the amount of compensation to be awarded for land acquired under the Act. It will be observed, that so far as moveables are concerned the provision for compensation in the D. I. Rules is closely analogous to the Order. But Mr. Gupta says that moveablea being excepted from the scope of Section 299, Government of India Act, such a provision was valid; whereas, it would be invalid If such a law is passed after the passing of the Constitution.

10. So far as the Essential Supplies Act is concerned, Section 3 (2) (f) authorises an order to be made 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.

11. I have already pointed out in -- 'Atulya Kumar De v. Director of Procurement & Supply,' : AIR1953Cal548 (A) that the Essential Supplies Act was merely an enabling statute. I said as follows:

'I next proceed to deal with the argument that the Act itself does not fix the compensation or lay down the principles upon which it should be fixed. Article 31(2) speaks of the 'law'. Now a statute like the present Act is only an enabling statute which confers powers upon the Government to do certain things by promulgating orders. All the ancillary and procedural provisions are to be found in the orders when promulgated. The 'law' in a given case must therefore be the Act read with the order. In other words, the Act provides the power to promulgate the order and when the order is promulgated in exercise of the powers conferred by the Act, it has the force of law. Since the Act is merely an enabling statute, it cannot stand by itself for any practical purposes and the Act and the order must be treated as supplementary to each other and the entirety considered as the 'law' which under Article 31(2) must provide the compensation or fix the principles for assessing it.

So read; I do not think that the law in this particular case does not fix the compensation.' I further pointed out that Notification No, 10365 is made inter alia under Section 3 (1) read with Clause (C) of Sub-section (2) of Section 3 of the Act which relates to control of prices. If a power to control prices is given under an Act, the controlled price must necessarily be read into the Act and was a sufficient fixation of compensation under Article 31(2).

12. I think, a slight extension of the principle adumbrated above, covers the point raised in this case. In speaking about the 'law', I have held that the Act must be read with the Order. In speaking about the 'Order', we must not only consider notification No, 10363 F. D. but all the several other notifications mentioned above, which purport on their face to be connected with the Order and were published simultaneously in the same Gazette They are merely supplementary to the main notification No, 10363 P. D.

13. It is quite clear that notification No, 10365 P. D. cannot stand alone. It purports to be in exercise, amongst other things, of the power conferred by Sub-para. (5) of para. 3 of the Order. In my opinion, the Act and the Order, read with the specification of prices etc. under notification No, 10365 P. p. to 10368 P. D., fixes the amount of compensation and/or the manner and principle or its determination, and is a sufficitant compliance with Article 31(2) of the Constitution. I am unable to hold that the order and the notification No, 10365 P. D. are to be taken as entirely separate, and read as such.

14. In -- 'State of Bombay v. The United Motors (India) Ltd', : [1953]4SCR1069 (B) a question arose about the constitutional validity of the Bombay Sales Tax Act 1952 (Act 24 of 1952). According to Article 286 of the Constitution the State Legislature could impose tax on certain categories of sale and purchase. The Act as it stood, infringed the provisions of Article 286(1)(b) and (2) of the Constitution. On the same day as the Act came into operation, the Government published rules made in exercise of the powers conferred by Section 45 of the Act. The learned Judges stated as follows:

'As regards the other two categories of sales or purchases excluded by Article 286(1)(b) and (2), it is true that the Act taken by itself does not provide for their exclusion. But, as pointed out already, Rules 5 and 6 ..... exclude these two categories in express terms, and these Rules were brought into force simultaneously with the charging Sections 5 and 10 on 1-11-1952. The position therefore was that, on the day when the general tax and the special tax became leviable under the Act, sales or purchases of the kind described under Article 286(1)(b) and (2) stood in fact excluded from taxation, and the State of Bombay cannot be considered to have made a 'law imposing or authorising the imposition of a tax' on sales or purchases excluded under the aforesaid clauses of Article 286. The Act and the rules having being brought into operation simultaneously, there is no obvious reason why the rules framed in exercise of the power delegated by the Legislature should not be regarded as part of the law' made by the State (see observations at p. 364 in Article 148, 'Constitution of India and Delhi Laws Act (1912) etc., In re', AIR 1951 SC 332 (C)). The position might be different if the Rules had come into operation sometime later than the charging sections of the Act, for, in that case, it is arguable that if the legislation, without excluding the two classes of sales or purchases, was beyond the competence of the Legislature at the date when it was passed the exclusions subsequently effected by the Rules cannot validate such legislation.'

15. In the present case also the Order and the several notifications, including notification No. 10365 P. D. were published simultaneously on the same day, in the same Gazette. It is argued that the making of rules under an Act is a different matter, since, when a rule is made, it has the force of law. I do not find any difference in principle because notification No, 10365 P. D. and the notification Nos. 10366 to 10368 are orders and not rules. The several orders have all the force of law. The order states that the Government will fix the compensation and the Government has fixed it. The fixation was published simultaneously with the main order. It is pointed out that notification No, 10365 F. D., cannot be considered independently because an order under Section 3 (2) (c) of the Act would require sanction of the Central Government under notification No. P. Y-603 (2) 1. But this objection is easily met by the fact that Section 3 (1) of the Act confers all the powers necessary, and would make the order valid, even if we omit Section 3 (2) (c). The producer, when the order was published, could not say that he was kept in ignorance of the compensation to be received by him. Such an argument could have been possible if the fixation was done subsequently. The reason why these figures have been published separately, is obvious because it is proposed to amend them from time to time and it would be inconvenient to keep on amending the main order itself.

16. In -- 'West Bengal Settlement Kanungoe Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee' : AIR1951Cal3 it was similarly held that the rules must be read with the West Bengal Land Development and Planning Act (21 of 1948), although there was no compulsion upon the Government to frame rules under the Act. In my opinion, the underlying principle is that in the case of the compulsory acquisition of property, belonging to a citizen, he must not be left in ignorance of the compensation which he will receive. In the instant case, he is not left in ignorance. I have had an enormous number of applications made before me challenging the procurement order and the directives under it, but no one has ever complained that he did not know the rate at which Government proposed to pay for the procured goods. In fact, the prescribed form 'C' appended to the order, requires that the rate should be mentioned, and the rate to be mentioned is according to the notification No, 10365 F.D., published simultaneously with the main order (and as amended from time to time).

Mr. Gupta lastly contended that it might be arguable that the Essential Supplies (Temporary Powers) Act 1946, was an 'existing law' and thus xempt from the operation of Article 31(2). But he points out that if the Act was an enabling Statute, any order passed under it after the Constitution came into being, would not be exempt. He cites the case of -- 'Rashid Ahmed v. Municipal Board, Kairana,' : [1950]1SCR566 (E). In that case, the municipal board of Kairana passed a bye-law under the U.P. Municipalities Act 1916. The bye-law came into operation on 1-1-1950, and virtually conferred the right upon the municipality to grant a monopoly upon a particular person, to carry on wholesale dealing in vegetables, thus interfering with the rights of the petitioner in that case to carry on his occupation. It was held that the restriction was not reasonable and violated the fundamental right of the petitioner under Article 19(1)(g) of the Constitution.

17. The next case cited is -- 'Mohammad Yasin v. Town Area Committee, Jalalabad,' : [1952]1SCR572 (P). This was a similar case, the only distinction being that the bye-law did not amount to an absolute prohibition to carry on business as wholesale dealers in vegetable, but the effect of imposing a fee of one anna in the rupee was held indirectly to produce that effect. The bye-law was held to be an unreasonable restriction on the fundamental right conferred by Article 19(1)(g). Mr. Gupta argued that in both cases, the Act might have been valid but the bye-law was held ultra vires as it infringed the Constitution. It will be observed however that both the cases involved infringement of Article 19(1)(g). Under Article 19, there is no question of the validity of 'existing laws'. The question is (see Article 19(6)) of a law imposing reasonable restrictions on the exercise of such a right. Only such a law (whether existing or to be imposed) will be saved from the operation of the particular fundamental right imposed by Article 19(1)(g). I do not see how these cases have any bearing upon the question of an 'existing law' being exempted under Article 31(5) of the Constitution; where no question arises about any reasonable restrictions.

18. I think however that where the existing law is merely an enabling statute, conferring power to enact a law or promulgate an order having the force of law, and such an enactment is passed or an order made, after the constitution, it cannot be said that the enactment or the order is exempt from the operation of Article 31(2), because the enabling statute is an 'existing law'. An 'existing law' to be so exempt, must be complete in itself. It cannot be allowed to spread its tentacles beyond the period when the constitution came into being. If it has to be read with other laws (or orders having the force of law) which are post-constitution, Article 31(2) will be necessarily attracted, so far as such other laws are concerned.

19. I have however shown above that the provisions of Article 31(2) have not been infringed.

20. The result is that the application fails and must be dismissed. The rule is discharged, interim orders vacated and undertakings discharged. Interim injunction will continue for three weeks after which any further stay must be obtained from the Appeal Court. I make no order as to costs.

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