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Gobinda Chandra Dakua Vs. Dinesh Chandra Maitra - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 278 of 1951
Judge
Reported inAIR1952Cal100,56CWN137
ActsConstitution of India - Articles 31(2), 31(2)(5), 226 and 366(10); ; The Essential Supplies (Temporary Powers) Act, 1946; ; Bengal Food Grains (Disposal and Acquisition) Order, 1947
AppellantGobinda Chandra Dakua
RespondentDinesh Chandra Maitra
Appellant AdvocateS. Das and ; Binode Behari Haldar, Advs.
Respondent AdvocateSen (Sr.) Govt. Pleader and ; Smriti Kumar Rai Chaudhury, Adv.
Cases ReferredUnited States v. Commodities Trading Corporation Et Al.
Excerpt:
- .....foodgrains. this in my view is sufficient compliance with article 31(2) of the constitution.] the price of paddy cannot remain constant for! all times to come. it must be fluctuating and has| to be fixed when acquisition or sale takes place, having regard to the conditions prevailing at the time.25. whether the price is arbitrary or unreasonable or whether the amount of compensation is adequate or not are different questions and the consideration of these questions will depend on various factors such as the locality, the extent of demand and supply at the place, the quantity of production in the area concerned, the cost of production, the economic conditions prevailing in the country at the time and various other factors.26. i am unable to hold that the bengal food-grains acquisition.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for a Writ in the nature of Mandamus or for an order on the respondent, Assessor Inspector, KuJpi, 24-Parganas directing him to cancel his order dated the 28th of January 1951 and to forbear from giving effect to that order.

2. The petitioner along with his co-sharers are-the owners of 36 Bighas of lands situated at Mouja Chakmonohar, P. S. Kulpi. The petitioner is a cultivator. It is alleged in the petition that the petitioner cultivates the land by himself and hired labourers who ordinarily take their meals at the petitioner's house and take paddy in lieu of their wages. It is further alleged that the petitioner's family consists of 16 members and each of them require one maund of paddy per month and the petitioner requires at least 250 maunds of paddy for one year for feeding his family and maintaining his labourers. It is alleged that the labourers are men. of the same locality and they are landless labourers. It is further alleged that besides the said requirements the petitioner has to perform several Pujas during the year and has to invite guests and relations during those festivals and has to make offerings of rice during the Pujas and has to distribute alms to the beggars throughout the Pujas.

3. The petitioner's case further is that on the 28th of January 1951 the respondent went to the petitioner's house, inspected the stock of thrashed, paddy and. also the stack of unauthorised paddy lying in different places of the petitioner's homesteads and made an estimate of paddy by guess work without actual measurement thereof and served a notice upon the petitioner under clause 3(1) of the Bengal Pood Grains (Disposal and Acquisition) Order, 1947 directing the petitioner to sell to the Government within 48 hours of the receipt of the notice 106 maunds of paddy from the petitioner's stock at a price of Rs. 7/8/r per maund subject to certain deductions as to poor-ness of quality and cost of transportation.

4. The respondent as a result of his inspection found the total quantity of paddy as follows: (1) Loose stocks in one gola inside the house: 15ft mds. of paddy, (2) Loose in the yard inside the: house: 20 mds. of paddy; (3) Stocks in bags; 10 mds. of paddy; (4) One unthrashed paddy stack as per eye estimate: 60 mds. of paddy. The total, quantity being 240 maunds of paddy.

5. The respondent granted exemption for consumption of the 16 family members 120 mds. of paddy and for seeds for future cultivation 14 maunds of paddy, i.e., altogether 134 maunds of paddy were exempted.

6. It is stated by the petitioner in the petition that Clause 3 of the Bengal Food Grains (Acquisition) Order, 1947, is ultra vires the Constitution of India particularly Articles 19(l)(f) and 31 of the Constitution. It is an infringement of the petitioner's fundamental right to hold and dispose of his property and he cannot be deprived of his paddy except in the manner indicated in the Constitution.

7. The petitioner challenges the order of the respondent dated the 28th of January 1951 purported to have been made under Clause 3 of the Acquisition Order 1947 as illegal and as being in violation of the provisions of the Constitution.

8. It is stated that if the order of the respondent is given effect to, the petitioner and his-family members will have to starve and for want of sufficient paddy the petitioner's cultivation of future lands will be rendered almost impossible.

9. The respondent has affirmed an affidavit, in opposition to the petition. It is denied that the petitioner feeds the hired labourers or gives them paddy in lieu of their wages. It is pointed out that the common practice amongst the labourers in the locality is to receive wages in cash and they do not take meals at the agriculturist's house. It is stated that the measurement of the stocks of paddy in the custody of the petitioner was made according to the rules of measurement laid down by the Government in the presence of the petitioner. It is pointed out that the exemption for family consumption and for seeds and other purposes has been granted on a very reasonable and liberal basis. For the purpose of family consumption for 16 members including the minor 7 mds. per head for 11 months have been allowed and an additional allowance of 17 mds. has been made for other contingent requirements. For seeds for future cultivation 10 seers per bigha have been allowed. It is after making these allowances that the surplus stock has been directed to be sold to the Government as per order dated the 28th of January 1951.

10. It is further stated in the counter affidavit that after the issue of the said notice dated the 28th January 1951 the petitioner never approached the respondent or any other officers of the Department with any prayer for consideration or revision of the said notice.

11. In answer to the counter affidavit one Rajendra Nath Bera has affirmed an affidavit in reply. It is stated in this affidavit that the labourers who are engaged for assisting the petitioner for the purpose of cultivation some times come from distant places and some of them are local people.' This case of labourers coming from distant places is not to be found in the petition but it is an improvement of the case made in the petition. It is stated that the. exemption granted is far short of the actual requirements and some of the allegations in the petition are repeated in the most vague and general manner.

12. It was contended by Mr. Sisir Das the learned counsel for the petitioner that the Bengal Food Grains (Disposal and Acquisition) Order 1947 is ultra vires inasmuch as the Order was promulgated for acquisition of foodgrains for purposes of the Central Government and now it is being utilised for acquisition for purposes of the Union and not purposes of the State. Mr. Das refers to Item 33 of List I and Item 36 of List II of the Seventh Schedule of the Constitution of India. He further submits that as the operation of the Essential Supplies Temporary Powers Act 1946 has been extended by Act LII of 1950 (Essential Supplies Temporary Powers Amendment Act) (Section (3) ), which came into force on the 16th August 1950, the Bengal Food Grains (Disposal and Acquisition) Order 1947 must be deemed to be a new law passed after the Constitution came into force and so it must depend on and must conform to the provisions of the Constitution for its validity. It must conform to Article 31(2).

13. This point is not taken in the petition nor is any such ground taken in support of the petition and the Rule was not issued on any such ground.

14. At the hearing of this Rule a Supplementary affidavit was attempted to be put in setting up therein some such ground. I have refused to look into such affidavit or to admit it as part of the record.

15. It has been repeatedly pointed out by decided cases of the English Courts and Courts of other countries that the applicants for Prerogative Writs must come to Court with all the materials or grounds on which they want to rely in support of their applications. The respondent has been called upon to show cause in respect of the grounds stated in the petition, and he has filed his affidavit in answer to the Rule. The petitioner has also filed an affidavit in reply in answer to the counter affidavit.

16. It would be extremely undesirable and in .fact it would lead to a most unsatisfactory state pf affairs if petitioners were allowed to raise new (grounds involving new facts by supplementary (affidavits nut in at the hearing.

17. If the case had been made in the petition that the acquisition is being made for purposes of the Union and not for the purposes of the State, the Respondent could have placed materials before the Court to controvert this fact and to show that the ground taken by the petitioner is fanciful and is without any substance.

18. In the circumstances no serious attention can be paid to this contention of Mr. Das.

19. The further contention of Mr. Das that by reason of the Act LII of 1950 which extended the life of Act XXIV of 1946 the Essential Supplies Temporary Powers Act 1946 and consequently the Bengal Foodgrains (Disposal and Acquisition) Order 1947 ceased to be 'Existing Law' and became 'New Law' enacted under the Constitution is untenable. 'Existing Law' has been defined in Article 366(10) of the Constitution as meaning

'Any law, Ordinance, Order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, Order, bye-law, rule or regulation'.

20. The Essential Supplies Act was such a law and was in force at the commencement of the Constitution. The Act LII of 1950 merely extended the life or operation of this existing law. The character of the law remained unaltered. The Resolution had not the effect of transforming the existing law into a new law.

21. As stated in Maxwell's Interpretation of Statutes (9th Ed. page 406)

'If a temporary Act be continued by a subsequent one or an expired Act be revived by a later one, all infringements of the provisions contained in it are breaches of it rather than of the renewing or reviving Statute'. (R v. Morgan', (1716-49) 2 Strange 1066 and other cases cited)

See also Craies on Statutes 4th Edition pages 346-347.

The effect of the Resolution was merely to delay the expiry of the existing Act. 'Khorshed Ali v. The King', A. I. R. (37) 1950 Cal. 202. The case of 'Bentley v. Rotherham and Kimberworth Local Board of Health', (1877) 4 Ch. D. 588 at pp. 594-595 relied on by Mr. Das does not lay down anything to the contrary.

22. It was also contended by Mr. Das that the Bengal Food Grains (Disposal and Acquisition) Order 1947 does not provide for compensation or principles and manner of compensation and as such infringes Article 31 of the Constitution and is void. In view of my finding however that the Essential Supplies Act 1946 and the Acquisition Order 1947 are existing laws the consideration of this question becomes unnecessary. (Art. 31(5) (a) of the Constitution)

23. I do not however think that this contention of Mr. Das can be accepted as sound.

24. The Acquisition Order by clause 3(2) provides that the price fixed by the Requiring Authority will be the compensation for the acquisition of the Foodgrains. This in my view is sufficient compliance with Article 31(2) of the Constitution.] The price of paddy cannot remain constant for! all times to come. It must be fluctuating and has| to be fixed when acquisition or sale takes place, having regard to the conditions prevailing at the time.

25. Whether the price is arbitrary or unreasonable or whether the amount of compensation is adequate or not are different questions and the consideration of these questions will depend on various factors such as the locality, the extent of demand and supply at the place, the quantity of production in the area concerned, the cost of production, the economic conditions prevailing in the Country at the time and various other factors.

26. I am unable to hold that the Bengal Food-grains Acquisition Order 1947 contravenes Article 31 |of the Constitution.

27. It was faintly suggested in argument by Mr. Das that the price of Rs. 7/8/- is not adequate though no such ground is taken in the petition and no materials are to be found on record as to what would be the adequate price or what was the prevailing market price in the locality or in 'the adjoining districts.

28. As pointed out by me the question of adequacy must depend on various factors. There can be no doubt that the economic conditions prevailing in the Country and the food situation of the Country require that ceiling prices fixed by the Government should be treated or accepted as the measure of just compensation. Just compensation cannot mean that the Government must compensate the owner of the paddy for potential profits lost because of economic distress in the Country and consequent price control.

29. As observed by Black J. in 'United States v. Commodities Trading Corporation Et Al. (1950) 339 U. S .R. 121

'Courts have never attempted to prescribe a rigid rule for determining what is just compensation under all circumstances and in all cases. Pair market rates has normally been accepted as a just standard. But when market value has been too difficult to find or when its application would result in manifest injustice to owner or public, Courts have fashioned and applied other standards.'

Although in this case the Judges were divided in their opinion, the observation quoted above appears to me to be consonant to common sense and reason.

30. The Economic conditions of the country have led the Government to resort to price fixing in order to limit inflation and prevent profiteering.

31. All these considerations and the absence of materials showing that the price of Rs. 7/8/-is unfair or inequitable and is not the prevailing market rate leave no other alternative for me than to hold that the contention of Mr. Das as to inadequacy of compensation is unsustainable.

32. It was also contended by Mr. Das that the exemption granted by the Respondent for family consumption and for seeds for future cultivation is quite insufficient for the purpose and as by the Order of the Respondent dated the 28th January 1951 the petitioner is being deprived of his paddy the petitioner's fundamental rights as guaranteed by Article 19(1)(f) and 19(1)(g) are thus infringed and the Order or the Directive should be cancelled. I cannot accede to this contention.

33. The Order of the Respondent dated the 28th January 1951 is an administrative act. The Respondent has inspected the stock of the petitioner. He has measured a portion of the stock and has formed an estimate of the unthrashed stack as a result of his personal observation. These officers of the Government are daily doing this kind of work and they have considerable experience of these things. They follow certain prescribed rules in the matter of measurements. The measurement has been done in the present case according to such rules. This is clear from the counter affidavit. There is nothing to show that the measurements are wrong. The Respondent has taken into consideration the number of the family members of the petitioner and their actual requirements. He has estimated the quantity of paddy to be allowed for seeds for future cultivation on a certain basis. It is apointed out on behalf of the petitioner as to what should be the correct basis of calculation. Only vague and general allegations or complaints are made in the petition and the affidavit in reply.

34. The respondent may have made a wrong measurement of the stock and he may have made a wrong estimate as to the quantity of paddy to be exempted from acquisition. It is not established that he has acted mala fide; and so long as he. has acted within the four corners of the statute this' Court has no jurisdiction to interfere. It is not a Court of Appeal.

35. No other points have been urged by the Counsel for the petitioner.

36. In the result this petition fails and the Rule must be discharged with costs. The hearing fee is assessed at three gold mohurs.


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