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Abhimanyu Adak Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 691 of 1951
Judge
Reported inAIR1952Cal118,55CWN693
ActsEssential Supplies (Temporary Powers) (Amendment) Act, 1950; ; Constitution of India - Article 372; ; Essential Supplies (Temporary Powers) Act, 1946 - Section 3, 3(1) and 3(2); ; Bengal Foodgrains Control (Disposal and Acquisition) Order, 1947
AppellantAbhimanyu Adak
RespondentThe State of West Bengal and ors.
Appellant AdvocateHemanta Kumar Bose and ; Paramananda Dutt, Advs.
Respondent AdvocateJagneswar Majumdar and ; Pramatha Kumar Chakravarty, Advs.
Cases ReferredRam Ch. Pal v. Heramba Kumar Pal
Excerpt:
- .....hanging it on the spot. this method of service is clearly not according to the provisions of the bengal foodgrains acquisition order 1947 and is irregular and not in accordance with law. the petitioner was not given proper or reasonable opportunity to comply with the demands of the government.7. it is further stated in the affidavit that the stock seized has already been sold by the government and the price of the paddy payable to the petitioner has been deposited in the alipore treasury. it is further alleged that after the petitioner was informed of the seizure by the bhagchassis the petitioner threatened the bhagchassis who out of fear of molestation filed -petition before the district magistrate, 24 parganas. it appears however upon a perusal of the petition which is annexed to the.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for a rule to show cause why a Writ in the nature of Mandamus or a direction should not issue calling upon the Respondents to release or return certain quantities of paddy seized by the Respondents under the Bengal Food Grains (Disposal and Acquisition) Order 1947, or for other directions as this Court may deem fit to make in the circumstances of this case.

2. The petitioner is a 'Raiyat Sthitiban' with respect to 76 bighas of land situated in Village Deul in Mouza Paschim Jota in Police-Station Mathurapore in the district of 24 Parganas.

3. The petitioner resides with his family consisting of 8 members in village Dighirpar Bakultala which is 3 or 4 miles away from the village of Deul. The lands at Deul are leased out to different persons for cultivation in Bhag System after taking Kabuliyats from them. It is provided in the said Kabuliyats that the Bhag tenants would deliver paddy at the rate of 4 maunds per bigha and that after thrashing the paddy the entire stock would be stored in the Khamar of the petitioner from where the Bhag tenants would remove their share after keeping the petitioner's share intact. It is alleged that the Bhagdars also take loans of paddy from the petitioner occasionally and in fact the petitioner had to advance 117 maunds and 20 seers of paddy to the Bhagdars as loan to be returned after thrashing of the paddy of the current year of 1357 B.S.

4. It is alleged that on or about the 16th March 1951 while the petitioner was lying ill, one of the Bhagdars came to the residence of the petitioner, handed him certain papers and informed him that the entire stock of the paddy belonging to the share of the petitioner including the 117 maunds 20 seers which had been loaned to the Bhagdars had been seized by the Respondent No. 4 Shiba Prasad Chakrabarthy. On enquiry he came to know that by a notice dated the 24th February 1941 issued by the Respondent No. 3 the petitioner was called upon to sell 280 maunds of paddy received through Bhag cultivation from the lands at Deul to the Government within 7 days of the receipt of the Notice. Thereafter on the 12th March 1951, by a combined notice issued by the Respondent No. 2 the petitioner was directed to sell to the Government 252 maunds of paddy out of 296 maunds at the rate of Rs. 7/8/- per maund within 48 hours and an exemption of 44 maunds was granted for agricultural needs. There are certain endorsements on the back of this Notice which suggest that the stock of paddy was weighed in the presence of the Bhagchassis and other witnesses. On the 15th March 1951 a Notice of Seizure was issued by Respondent No. 3 and it is alleged that the entire stock of paddy lying in the petitioner's Khamar which according to the petitioner was 421 maunds and 20 seers was seized by the Respondent No. 4. It is alleged that the cost of production of paddy of the petitioner is Rs. 10/- per maund.

5. The petitioner challenges the Bengal Food Grains (Disposal and Acquisition) Order 1947 and particularly paragraphs 3 (1), 3 (2) and 3 (3) thereof as Ultra vires the Constitution of India as they infringe several provisions of the Constitution. The exercise of the power under the Order by the Respondents is challenged as mala fide and arbitrary.

6. The Respondent No. 3 has affirmed the Counter-affidavit. He states that he was informed by the Bhagchassis and other local people that 74 bighas of lands were under cultivation under the contract system and this year's yield from the said lands to the petitioner's share would be 280 to 290 maunds of paddy and the deponent was further told that the petitioner did not live there with his family nor did he require any portion of the produce of the said land for his family consumption. On the 24th February 1951 the deponent issued a Notice for thrashing of the paddy and on the 10th March 1951 got information that 296 maunds of paddy had been set apart to the petitioner's share. On the 11th March 1951 the -deponent sought and obtained the approval of the President of the Union for seizing the stock. Thereafter on the 12th March 1951 the deponent served a Directive directing the petitioner to deliver 252 maunds after allowing an exemption of 44 mds. for seeds for future cultivation. The service of the directive is alleged to have been effected by hanging it on the spot. This method of service is clearly not according to the provisions of the Bengal Foodgrains Acquisition Order 1947 and is irregular and not in accordance with law. The petitioner was not given proper or reasonable opportunity to comply with the demands of the Government.

7. It is further stated in the affidavit that the stock seized has already been sold by the Government and the price of the paddy payable to the petitioner has been deposited in the Alipore Treasury. It is further alleged that after the petitioner was informed of the seizure by the Bhagchassis the petitioner threatened the Bhagchassis who out of fear of molestation filed -petition before the District Magistrate, 24 Parganas. It appears however upon a perusal of the petition which is annexed to the Counter-affidavit that it has been prepared and filed at the instance and dictation of some officer of the Government, to support the case of the Respondents before this Court. Unfortunately for the Respondents those very persons who are alleged to have presented the petition before the District Magistrate have sworn affidavits and categorically denied the statements made by the Respondent No. 3 in the Counter-affidavit. They have further denied that they filed any application before the District Magistrate. They state that they were forced to put their signature or thumb impression on blank papers at the office of the Respondent No. 3. I am inclined to accept the statements of the Bhagchassis in preference to the statements of the respondent. No. 3. To me it appears that the Procurement officers including the Respondent No. 3 have acted in a high-handed and arbitrary manner. There can be no doubt that tine Bhagchassis supplied the information asked for to the Respondent No. 3, and the procurement officers acted upon such information. It is also clear that the petitioner also received some information, about the proposed acquisition of his stock, from his Bhagchassis; but the fact remains that he was not served with the Notices of Acquisition and Seizure in accordance with law. The whole thing was done in an irregular manner.

8. It has been contended by Mr. Hemanta Kumar Bose, the learned Advocate for the petitioner, that Act LII of 1950 which has extended the life of the Essential Supplies (Temporary Powers) Act 1946 up to 31st December 1952 is ultra vires as such extension is in contravention of Article 372, Explanation III of the Constitution. Mr. Bose has referred me to Indian Central Legislature Act 1946 and to a decision of the learned Chief Justice and Bannerjee J. in the unreported case of 'Sisir K. Dutt v. The State', (Criminal Revn. No. 1028 of 1950 - Judgment dated 1st May 1951).

9. It appears to me however that this contention of Mr. Bose cannot be sustained. Article 373, Explanation III of the Constitution does not impose any bar on the Parliament to extend the life of a Temporary Statute by an appropriate legislation in so far as such legislation is permitted by the provisions of the Constitution and by the legislative powers conferred on Parliament by the Constitution. The Explanation III merely provides that Temporary Statutes will not have their lives automatically extended by virtue of the provisions of Article 372 which continues in force the existing laws. There is nothing however in the Explanation III which fetters the power of Parliament to extend the period of a Temporary Statute if the Parliament finds it necessary to do so. In the interpretation of a completely self-governing Constitution founded upon a Written Organic instrument, if the text says nothing expressly then it is not to be presumed that the Constitution withholds a particular power altogether. On the other hand Article 369 of the Constitution expressly confers power on Parliament notwithstanding anything in the Constitution, to legislate with regard to matters dealt with by the Essential Supplies (Temporary Powers) Act 1946. This contention of Mr. Bose therefore fails.

10. It is next contended by Mr. Bose that the Bengal Foodgrains (Disposal and Acquisition) Order 1947 is not in conformity with the Essential Supplies Act 1946 (S. 3). He argues that Section 3 of the Essential Supplies Act provides for securing of equitable distribution and availability of essential commodities at fair prices but Paragraph 3 of the Bengal Foodgrains Order provides for acquisition of foodgrains at such prices as may be fixed by the Government. This is going beyond what is permitted by Act XXIV of 1946. This argument of Mr. Bose appears however to have no force at all. 'Fair price' mentioned in Section 3 (1) of Act XXIV of 1946 has reference to the securing of equitable distribution and availability amongst the general public at reasonable prices. It has no reference to producers or manufacturers of commodities or dealers of such commodities. So far as manufacturers, producers dealers or hoarders are concerned they can be called upon to part with their goods at prices fixed by Government. Of course this does not mean that they can be deprived of their property even at a loss. They are prevented from resorting to profiteering at the expense of the public. Section 3 (2) (f) of the Essential Supplies Act makes the position quite clear. For securing the objects specified in Section 3 (1) of the Act the Orders promulgated under the Act may provide for the various things which are mentioned in the various subsections of Section 3 (2) of the Act. This is the plain implication of the Act. The Bengal Foodgrains Order 1947 is in complete conformity with Section 3 (2) sub-sections (f) (i) and (j) of the Act. This contention of Mr. Bose must also fail.

11. It has been further contended that the Bengal Foodgrains (Disposal and Acquisition) Order 1947 imposes unreasonable restrictions on the exercise of fundamental right to acquire, hold and dispose of property guaranteed by Article 19(1)(f) of the Constitution and as such is invalid.

12. It is urged that under Paragraph 3 (2) of the Order the decision of the Requiring Authority is made final. There is no right of representation given to the person who is affected by the action of the Authorities concerned. As pointed out by me in Civil Rule No. 679 of 1951 'Ram Ch. Pal v. Heramba Ch. Pal' the provision for making the decision final has the effect of barring appeals to superior or higher authority but it does not prevent the persons aggrieved from making any representation to the authorities nor does it preclude them from having recourse to Courts of law.

13. It was then urged that the provisions of the Bengal Foodgrains Order permit delegation of powers and duties to any subordinate officer and this is unreasonable and bad. Reference is made to Proviso of Paragraph 3 (1), Paragraphs 3 (3) and 4 of the order. It may be noted that the important part of the work and the making of the main order is to be done by the Requiring Authority who is a responsible person. It is only the ministerial part of the works such as inspection, taking delivery weighment, calculation of the price, seizure, making allowances etc. which are left to be done by subordinate officers. Unless some such delegation is permitted it will become impossible to carry out the purposes of the Foodgrains Order 1947.

14. Reliance is placed on the decision of 'Khagendra Nath De v. District Magistrate of West Dinajpur' 55 Cal W N 53 where Harries C. J. & Banerjee J. held that Section 38 of the West Bengal Security Act 1950 is unreasonable and ultra vires. It should be noted however that the object, scope and the provisions of the West Bengal Security Act are quite different from those of the Bengal Foodgrains Order, and so the observations made with regard to the said Act are not applicable to considerations arising wider the Bengal Order. Section 38 of the Security Act provided scope for performance of very important functions by subordinate officers and so this was held to be unreasonable.

15. It was contended that Sub-paragraph 2 of Paragraph 6 of the Order which provides that failure to comply with requirement of sub-paragraph 1, will not affect the validity of the Order or Notice is unreasonable. I do not think so. If the service is defective the Order or Notice does not necessarily become bad. It will of course be open to a person who is not properly served to complain of defective service and to urge that he is not bound by the Order and is not liable to comply with it, so long as it is not properly communicated to him. But non-service or defective service does not make the Order or Notice inherently bad.

16. It was also contended by Mr. Bose that the Directive is not in accordance with the Food-grains Acquisition Order as it does not specify the price and the provision for deduction by the Government for poorness of quality and transport and other charges is not permissible by the Foodgrains Acquisition Order. This contention must succeed in view of my judgment delivered today in 'Ram Ch. Pal v. Heramba Kumar Pal' Civil Rule No. 679 of 1951.

17. Mr. Jogneswar Mazumdar has referred me to various decisions of English, American and Indian Courts and to text books for inducing me to hold that the decision of K. C. Das gupta J. and P. N. Mookerjee J. is not binding on me. I am unable to accept that position. The principles laid down in those cases have no application, to the facts and circumstances before me. It is true that Judges are not entitled to bind their successors to a construction of an Act which the language plainly does not justify but a Judge sitting singly is generally bound to follow the decision of a Division Bench and he also ought generally to follow a decision of another single Judge of the same High Court on a question of law leaving it to the Court of Appeal to say whether or not that decision is wrong.

18. As the view expressed by K. C. Dasgupta J. and P. N. Mookerjee, J. with regard to the construction of the provisions of the Bengal Foodgrains (Disposal and Acquisition) Order 1947 is a possible view I respectfully follow that decision.

19. In the result this petition succeeds. The Rule is made absolute. The directive or the Order of Acquisition dated the 12th March 1951 and the Order for seizure mentioned in the petition are cancelled. The petitioner will be at liberty to take such steps as he may be advised for illegal seizure and wrongful disposal of the stock of paddy. The petitioner is entitled to costs of the present proceedings. Hearing fee is assessed at three gold mohurs.

20. I direct that a copy of this judgment be supplied to Government free of cost, as prayed


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