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Nimai Chand Bhabak Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 857 of 1953
Judge
Reported inAIR1955Cal478,1955CriLJ1249,60CWN202
ActsWest Bengal Food Grains Control Order, 1951; ;Code of Civil Procedure (CPC) , 1908; ;General Clauses Act, 1897 - Sections 3(8), 3(46) and 24; ;Bengal Food Grains Control Order, 1945; ;Bengal General Clauses Act, 1899 - Section 25; ;Constitution of India - Article 19(1) and 19(6)
AppellantNimai Chand Bhabak
RespondentThe State
Appellant AdvocateAnil Kumar Sen, Adv.
Respondent AdvocateJ.N. Banerjee, Adv.
Cases ReferredMessrs. Dwarka Prasad Laxmi Narain v. State of U. P.
Excerpt:
- .....in exercise of the delegated authority conferred by section 4, essential supplies act. the foodgrains control order of 1951 is virtually a reproduction of its predecessor with certain modifications which will be presently noticed. the proviso to sub-para. (3) of para. 1 of the food, grains control order (1951) is exactly in the same terms a its counter part in the food grains control order of 1945 and lays down that the 'provisions of this order applicable to carriers' shall not come into force in any area unless and until they have been expressly brought into force in such area by a notification issued in that behalf by the state government.'it is common ground that no notification has been issued by the state government expressly bringing into force the provisions of the 1951.....
Judgment:
ORDER

Lahiri, J.

1. This is a Rule upon the State of West Bengal to show cause why the prosecution of the petitioner under Section 7(2), Essential Supplies Act (Act 24 of 1946 in the Court of the Sub-divisional Magistrate, Baraset in the district of 24-Parganas should not be quashed. The facts of the case which are undisputed are these: A consignment of 250 bags of rice arrived at the Baraset Railway Station on 11-5-1953 in the name of the consignee Amulya Kumar Ghose, One Gour Mohan Pal, acting as the agent of the consignee, took delivery of the consignment and engaged Lorry No. WBC 7934, of which the petitioner was the driver, to carry the rice from the Railway Station to the godown of Amulya Kumar Ghose at Baraset, and loaded 72 intact bags and 14 torn bags of rice in that lorry.

When the petitioner was passing through Chapadali crossing, on his way to Amulaya Ghose'sgodown, he was challenged by the Police to produce is carrier's license, required to be kept under the W. B. Food Grains Control Order of 1951, and on his failure to produce the same he was arrested. A first information report was lodged by S. I. Sukumar Bose of Baraset P. S. at 19-30 hour on 11-5-1953. The petitioner was produced before the Sub-divisional Officer of Baraset on 12-5-1953 and a case under Section 7(2), Essential Supplies Act (Act 24 of 1946) was started against him for having violated the provisions of Para. 3 of the West Bengal Food Grains Control Order of 1951. It is admitted that the truck which the petitioner was driving did not belong to him and that it belonged to one Paramnidhi Sadhukhan.

2. The questions on which there has been a difference of opinion between my learned brothers Mitter and Sen JJ. for which this case has beenplaced before me for disposal are (a) whether the provisions of the West Bengal Food Grains Control Order of 1951 are in force in the district of 24-Parganas in the absence of a notification under that Order and (b) whether the petitioner can be said to be a earner within the meaning of that order.

Besides these two points there is a third point as to the constitutional validity of Para. 3 read with Paras. 4, 13{2) and 17 of the W. B. Food Grains Control Order of 1951 on which Mitter J. has expressed no opinion but which has been decided against the petitioner by Sen J. This last point has been argued at length before me. I shall take up these points one by one.

3. Section 3, Essential Supplies Act (Act 24 of 1946) authorises the Central Government to issue orders for maintaining or increasing supplies of essential commodities (including food stuffs) or for securing their equitable distributions and availability at fair prices and Section 4 of the said Act empowers the Central Government to delegate its power of issuing orders in regard to the aforesaid matters to a State Government. Prior to the passing of the Essential Supplies Act in 1946 similar powers could be exercised by the Central and Provincial Governments under R. 81(2) of the Defence of India Rules.

In the year 1945 the Governor of Bengal in exercise of the powers conferred by Rule 81(2) of the Defence of India Rules issued an order known as the Bengal Food Grains Control Order, 1945, for regulating the supply and equitable distribution of food-grains. The proviso to Clause (3) of para. 1 of that Order laid down that the provisions of the Order relative to carriers would not come into force in any area until and unless they had been expressly brought into force in that area by a notification issued in that behalf by the Provincial Government. Clause (a) of Para. 2 of the Order defined carrier as a person who undertook

'the carriage, transport or movement of rice husked or rice in the husk (paddy) of not less than 10 mds. in weight from one place to another on behalf of another person by any form of wheeled or water transport'

with certain exceptions which are not material. Paragraph 3 of the order provided that no carrier should engage in any undertaking which involved the carrying, transport or movement of rice husked or in the husk by wheeled or water transport except under and in accordance with the conditions of a license issued under Para. 4. Paragraph 16 provided for punishment for contravention of any of the provisions of the order. In exercise of the power conferred by the proviso to Clause (3) to para. 1 the Governor expressly brought into force the provisions of the Order applicable to carriers in the districts of 24-Parganas and Burdwan by Notification No. 19562 D. C. S. dated 3-10-1947.

By two other Notifications, being Notifications Nos. 3128 D. C. S. dated 4-3-1946 and 7893 D. C. S. dated 22-5-1946, the provisions of the Order relative to carriers were expressly brought into force in certain police stations in the districts of Midnapore, Bankura, Burdwan, Birbhum, Murshidabad, Malda, Dinajpur, Jalpaiguri and Darjeeling. The effect of these Notifications is to extend the provisions of the Food Grains Control Order (1945), applicable to carriers, to the whole of the districts of 24 Parganas and Burdwan, to some of the Police Stations included in the remaining districts mentioned above & to exclude altogether some of the districts which now form part of the State of West Bengal.

4. In 1951, the Food Grains Control Order (1945) was repealed and was reissued by the Governor in exercise of the delegated authority conferred by Section 4, Essential Supplies Act. The FoodGrains Control Order of 1951 is virtually a reproduction of its predecessor with certain modifications which will be presently noticed. The proviso to sub-para. (3) of Para. 1 of the Food, Grains Control Order (1951) is exactly in the same terms a its counter part in the Food Grains Control Order of 1945 and lays down that the

'provisions of this Order applicable to carriers' shall not come into force in any area unless and until they have been expressly brought into force in such area by a notification issued in that behalf by the State Government.'

It is common ground that no notification has been issued by the State Government expressly bringing into force the provisions of the 1951 Order, applicable to carriers, in the district of 24-Parganas. Mr. Banerjee appearing for the State has, however, argued that Notification' No. 19562 D. C. S. dated 3-10-1947, issued under the Food Grains Control Order of 1945 which extended the provisions of that Order relating to carriers to the district of 24-Parganas is still in force under the proviso to sub-para. (4) of Para. 1 of the Food Grains Control Order (1951) which is a new provision. Omitting unnecessary details the relevant portion of sub-paragraph (4) of para. 1 of the said order is as follows:

'(4) The Bengal Food Grains Control Order. 1945, is hereby repealed.

Provided that any notification issued........under the said Order and in force immediately be-fore the commencement of this Order........shallcontinue in force and be deemed to be issued under the corresponding provision of this order.'

5. The question which requires consideration therefore is whether in view of the Proviso to sub-para. (3) of Para. 1, Notification No. 19562 D. C. S. survives the repeal of the Food Grains Control Order 1945 under the proviso to sub-para. (4) of Para. I of the present Order. Mr. Sen appearing for the petitioner has argued that if Notification No. 19562 D. C. S. issued under the previous Order be deemed to be still in force, the proviso to sub-para. (3) of Para. 1 of the present Order would be redundant. This argument is based on the assumption that under the previous Order notifications were issued in respect of all the districts which are now included in the State of West Bengal; but, as I have already shown, the notifications issued under the previous Order did not include all the districts of West Bengal.

So it is possible that the proviso to Clause (3) of para. 1 of the present Order authorises the State Government to expressly bring into force the provisions of the present Order applicable to carriers in those areas to which they were not extended by notifications issued under the previous order.

Moreover, I agree with my learned brother Sen J. that in the absence of any provision like that contained in the proviso to Clause (3) of Para. 1 of the present Order the notification issued under the previous Order would completely lapse, because there would be no 'corresponding provision' in the present Order under which 'the notification could be 'deemed to be issued.' For these reasons I am unable to hold that there is any repugnancy between the proviso to sub-para. (3) of para. 1 and the proviso to sub-para. (4) of para. 1 or that the latter makes the former redundant. In my view it is possible to construe the two provisos in such a manner as to make them applicable to different spheres.

6. A more serious objection to the survival of notification No. 19562 D. G. S. dated 3-10-1947, however is, that in order to attract the operation of the proviso to sub-para. (4) of Para. 1 of the present order a notification under the proviso to sub-para. (3) is necessary. In the absence of a notification under the proviso to sub-para. (3) no provision of the Food Grains Control Order 1951 relating to carriers shall come into force in any area. The proviso to sub-para. (4) which keeps alive the notifications issued under the previous Order is a provision of the Food Grains Control Order, 1951.

Therefore, it follows that the proviso to sub-para. (4) will not come into operation without a notification under the proviso to sub-para. (3). If the proviso to sub-para. (4) does not apply there can be no question of the survival of the notification issued under the previous order. Mr. Banerjee appearing for the State has, however, argued that a statute should he construed in such a way as to give effect to all its provisions and if that is done the proviso to sub-para. (3) should be read subject to the proviso to sub-para. (4). I do not see how the conclusion so light to be drawn by Mr. Banerjee follows from the premises formulated by him.

There can be no doubt that I must read the Order in sue)) a way as to give full effect to all its provisions; but if I do that the only concision at which I arrive is that out of all the notifications sought to be kept alive by the proviso to sub-para. (4), those notifications which are applicable to carriers, will not continue in force in the absence of a fresh notification under the proviso to sub-paragraph (3).

I may mention here that the proviso to sub-para. (4) contemplates not only notifications bringing into force the provisions of the Order relating to carriers but also notifications under para. (2)(c) adding to the list of 'Food Grains' and under para. (7)(2) specifying the fee which may be charged for the grant or renewal of any licence under the Order, if full effect is given to the proviso to sub-para. (3) and the proviso to sub-para. (4) of para. 1 of the present Order the only conclusion that follows is that all the notifications issued under the previous Order in force except those which come under the proviso to sub-para. (3), i.e., those which are applicable to curriers. Mr. Banerjee also contended that the intention of the legislative authority was to keep alive all the notifications issued under the previous Order, without any exception.

Even it that be the intention of the legislative authority I cannot hold that that intention has been carried into effect by the actual words used in the proviso to sub-para. (3) and in the absence of any ambiguity in the words used I shall not be justified in construing the plain words by reference to the intention, If the notifications relating to carriers issued under the previous Order were to be kept alive the proviso to sub-para. (3) should have been preceded by an adverbial phrase like 'subject to the proviso to sub-para. (4)'. In the absence of, any such phrase I am unable to hold that the notifications relating to carriers issued under the previous Order continue in force under the proviso to sub para. (4) without any new notification under sub-para. (3).

I am accordingly constrained to hold that under the provisions of the present Order the notifications relating to carriers issued under the previous order do not survive the repeal of the previous Order.

7. The aforesaid conclusion, however, is not sufficient for the disposal of the point raised by the petitioner, because even if the notifications issued under the previous order do not survive the repeal of that Order under the provisions of the present Order, they may still continue in force under the provisions of Section 24, Indian General Clauses Act (Act 10 of 1897) or Section 25, Bengal General Clauses Act (Act 1 of 1899), if those sections apply at all to the facts of the present case.

As I have already said, the Food Grains Control Order of 1945 was issued by the Governor of Bengal under Rule 81(2) of the Defence of India Rulesframed under the Defence of India Act and the Food Grains Control Order of 1951 was issued by the Governor under powers delegated by Section 4, Essential Supplies Act. As the Essential Supplies Act is a Central Act the provisions of the Indian General Clauses Act are more appropriate to the interpretation of its provisions and the provisions of all Orders issued under it.

I shall therefore consider whether Notification No. 19562 D. C. S. dated 3-10-1947 has been kept alive by Section 24, Indian General Clauses Act, the material portion of which is in the following terms:

'Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise provided, any ......... notification............issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been issued under the provisions so re-enacted, unless and until it is superseded by any ...... notification .......... issued under theprovisions so re-enacted.................'

8. In order to bring a case within the four corners of Section 24, however, the following conditions must be fulfilled:

(a) The repeal must be of a Central Act or Regulation, and (b) The notification must not be inconsistent with the provisions re-enacted.

9. The words 'Central Act' and 'Regulation' have been defined in Section 3 Clause 8(aa) and (46) respectively. In the present case the repeal was of the Food Grains Control Order of 1945, which was issued under Rule 81(2) of the Defence of India Rules. Such an Order cannot be said to be a Central Act or Regulation, as defined by Section 3, Clause 8(aa) and (46). The Order was not issued by the Governor in exercise of his legislative powers but was an executive act.

In the case of -- 'Kiron Chandra Bose v. Kali-das Chatterjee : AIR1943Cal247 , the Bengal House Rent Control Order 1942 which was also issued by the Governor under Rule 81(2) of the Defence of India Rules, was held to be an executive act of the Governor by a Division Bench of this Court consisting of B. K. Mukherjea and Blank JT. The Food Grains Control Order of 1945 stands on the same footing as the Bengal House. Rent Control Order, 1942. I accordingly hold that the former Order also is an executive act of the Governor and cannot have the status of a Central Act or Regulation,

It therefore follows that the first condition has not been fulfilled.

10. With regard to the second condition I have already held that if I am to ascertain the intention by the actual words used in the proviso to sub-paras. (3) and (4) of para. 1 of the present Order the conclusion is irressistible that the proviso to sub-para. (4) must be read subject to the proviso to sub-para. (3) and therefore the repealing Order evinces a contrary intention. Accordingly the second condition cannot also be said to have been fulfilled.

11. Mr. Banerjee relied upon the decision of the Supreme Court in the case of -- 'State of Punjab v. Mohar Singh', (S) AIR 1955 S.C. 84 (B). That was a case where the Supreme Court had to deal with the effect of the repeal of the East Punjab Refugees (Registration of Land Claims) Ordinance by the East Punjab Refugees (Registration of Land Claims) Act of 1948 which re-enacted all the provisions of the repealed Ordinance.

The East Punjab High Court held that Section 6 General Clauses Act is attracted only when an Act or Regulation is repealed 'simpliciter' but not when therepeal is followed by re-enactment. In overruling that view the Supreme Court observed as follows: 'We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section.'

12. I do not see how this decision is of any assistance to the opposite party. It is nobody's case that Section 6 or Section 24 docs not apply to this case because the repeal was followed by re-enactment. The reasons for which I have held that Section 24 is inapplicable are not affected by the decision of the Supreme Court.

13. If it is held that the present case is to be governed by Section 25. Bengal General Clauses Act, the reasons which 1 have given for ruling out Section 24, Indian General Clauses Act, apply with equal force to Section 25 of the Bengal Act.

14. For the reasons given above that notification No, 19562 D. C. S. dated 3-10-1947 issued under the proviso to sub-para (3) of para. 1 of the Food Grains Control Order 1945 does not survive the repeal of that Order either under the provisions of the proviso to sub-para. (4) of para. 1 of the present Order or Section 24, Indian General Clauses Act or Section 25, Bengal General Clauses Act. The first point urged on behalf of the petitioner should therefore succeed.

15. My decision on the first point renders a consideration of the remaining two points unnecessary; but still as they have been argued before me at some length I shall briefly record my views on them.

16. The second point raised by Mr. Sen is that the petitioner cannot be said to be a carrier within the meaning of Clause (a) of para. 2 of the Food Grains Control Order (1951), because in order to be a carrier there must be a contract of carriage and such a contract must be with the owner of the 'wheeled transport' and as the petitioner is admittedly not the owner of the lorry which belongs to Paramnidhi Sadhu Khan, he cannot be said to be a carrier.

A contract of carriage may no doubt be entered into either by the owner of the lorry or by the driver acting under the express or implied authority of the owner. In the latter case the driver is the owner's agent. It is true that the definition of a carrier as given in para. 2(a) is wide enough to include the owner or his agent and I was at first inclined to take the view that the word carrier includes the driver of a motor vehicle who is not the owner thereof; but on fuller consideration I find that the definition of the word carrier has to be read with the provisions of para. 5. Paragraph 5(1) provides that every person holding a carrier's licence shall

'(a) if he accompanies any consignment of rice husked or rice in the husk carry the license withhim, and

'(b) if he does not accompany such consignment, provide the person accompanying such consignment with a journey ticket in Form, E.

17. Form E is in the following terms:

'The under noted person is in charge of.......Motor Vehicle No.. . . .. ..........and is directed tocarry ....... .Maumls of rice husked or in the huskform ............ starting on .......... to ........... (consignee) ............ at (place)

Name . . . .......... Father's name ...........village ........... Police Station ....... .District

Signed .......... (Holder of carrier's licenceNo ........... issued at .............. on ........)

18. The provisions of para, 5(1)(b) read with Form E leave no room for doubt that the driver of a lorry who is not the owner thereof cannot be said to be a carrier within the meaning of para. 2(a); because they distinctly recognise the existence of a class of persons who are in charge of motor vehicles belonging to another person and authorised to carry rice husked or in the husk without being a carrier. Such persons are required to carry a 'journey ticket' but not a carrier's license.

In my opinion the petitioner is a person contemplated by Form E and is not a carrier. I accordingly agree with my learned brother Mitter J. that the petitioner is not a carrier within the meaning of para. 2(a).

19. The third point raises the question of the constitutional validity of paras. 3, 4(c), 13(2) and 17 of the Food Grains Control Order, 1951. Mr. Sen argues that the provisions of the aforesaid paragraphs impose unreasonable restrictions upon the freedom of trade guaranteed under Article 19(1)(g) of the Constitution and are not protected by Article 19(6). Paragraph 3 provides that no carrier shall undertake the carrying transport or movement of rice husked or rice in the husk except in accordance With the conditions of a licence issued under para. 4. Paragraph 4 authorises the State Government to issue a license to any carrier

'Provided that the State Government may 'without assigning any reason', refuse to grant a license to any person under this Sub-paragraph'

Paragraph 13(2) empowers the State Government

' 'Without giving any previous notice and without assigning any reason', suspend or cancel any license issued ........ under this Order.'

Under Para. 17 the State Government

'may by general or special order, authorise any officer to perform all or any of the functions of the State Government under this Order.'

Mr. Sen strongly relies upon the decision of the Supreme Court in the case of -- 'Messrs. Dwarka Prasad Laxmi Narain v. State of U. P.', : [1954]1SCR803 by which Para. 4(3) of the Uttar Pradesh Coal Control Order was held to be void as offending against Article 19(1)(g) of the Constitution. Paragraph 4(3) of the Uttar Pradesh Coal Control Order is in the following terms:

'The licensing authority may grant or refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under this order 'for reasons to be recorded.' Provided that every power which is under this Order exercisable by the licensing authority shall also be exercisable by the State Coal Controller or any person authorised by him in this behalf.'

By Para. 2(c) the licensing authority has been defined to be the

'District Magistrate of the District or any other officer authorised by him to perform his functions under this Order and includes the District Supply ' Officer of the district.'

It seems to me that para. 4(3) of the Uttar Pradesh Coal Control Order is a combination of paras, 4, 13(2) and 17 of the West Bengal Food Grains Control Order, 1951 with this difference that whereas under the former the licensing authority is required to give reasons for granting or refusing to grant, renewing or refusing to renew, suspending, cancelling revoking or modifying any license, under the latter power has been given to the executive Government to suspend or cancel any license 'without giving any previous notice and without assigning any reason.

In dealing with the provisions of para. 4(3) of the Utter Pradesh Cool Control Order the Supreme Court observes as follows at p. 227 of the report:

'The licensing Authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do is to record reasons for the action he takes. Nut only so the power could be exercised by any person to whom the State Goal Controller may choose to delegate the same and the choice can be made in favour of any and every person.

It seems to us that such a provision cannot be held to be reasonable ........ Practically the Ordercommits to the unrestrained wilt of single individual the power to grant, withhold or cancel licenses in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same.'

It was further held that the requirement about recording of reasons by the licensing authority was riot a sufficient sateguard against abuse of power, because the reasons which were required to be recorded were for

'the personal or subjective satisfaction of the licensing Authority and not for furnishing any remedy to the aggrieved person.'

The reasons given by the Supreme Court for holding para. 4(3) of the Uttar Pradesh Coal Control Order to be void apply with all the greater force to the provisions of paras. 4, 13(2) and 17 of the West Bengal Food Grains Control Order, 1951, because under the latter Order the State Government is authorised to cancel, revoke or modify any licence granted under that Order 'without assigning any reason and without even issuing any notice to the licensee' and the power of delegation is also unrestricted. In my opinion the powers conferred on the State Government by paras. 4, 13(2) and 17 of the West Bengal Food Grains Control Order are more arbitrary and uncontrolled, than the powers conferred on the licensing Authority under the Uttar Pradesh Coal Control Order.

Mr. Banerjee has argued that the offending provisions of the impugned Order are severable from the main provision requiring a carrier to obtain a license; but I cannot accept this argument. Paragraph 4(1) proviso authorises the State Government to refuse to grant a license without assigning any reason and para. 13(2) authorises it to cancel or revoke a license without issuing any notice to the licensee.

These powers are in my opinion inseparable from the power to grant or refuse to grant a license and unless these provisions are brought into conformity with constitutional requirements, para 4 cannot properly operate. For these reasons I am con-strained to hold that paras. 3, 4, 13(2) and 17 of the West Bengal Food Grains Control Order areinvalid.

20. For the reasons given above I make thisrule absolute and direct that the proceeding pending against the petitioner be quashed.


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