1. This is an application under Article 226 of the Constitution for a Writ in the nature of Mandamus directing the respondents to refrain from acting under the powers purported to have been conferred on them under Clause (3) of the Bengal Food Grains (Disposals and Acquisition) Order, 1947 and to return the paddy seized from the possession of the petitioner and also for order for cancellation of orders of requisition and seizure made in respect of quantities of paddy mentioned in the petition.
2. The petitioner is an agriculturist and has got agricultural lands and his Khamar at Dheragaria in Police Station Gopiballavpur in the district of Midnapore.
3. It is alleged that this year after the paddy was reaped from the petitioner's lands and the lands of his father-in-law Ananta Lal Ghosh and the lands of his brother-in-law Madhab Chandra Paira and all the paddy had been stacked in the petitioner's Khamar, a Notice signed by the Respondent No. 2, the Assessor Inspector of Gopiballavpur Zone purported to be given under the provisions of the Bengal Food Grains Disposals and Acquisition Order, 1947, was served upon the petitioner calling upon him to deliver within 48 hours of the receipt of the notice 100 Maunds and 20 seers of paddy to the Procurement Agent at Gopiballavpur.
4. The Notice or Directive is in Form A of the West Bengal Government Directorate of Procurement and Supply and directs the petitioner to sell to K. M. Dey the D. P. Agent Gopiballavpur within 48 hours of the receipt of the Notice at a price not exceeding Rs. 7/8 per maund for paddy subject to deduction on account of poorness of quality and cost of transportation and other incidental charges incurred by the Government. The payment was to be made at Gopiballavpur by the D. P. Agent. The Notice also stated that 144 Maunds of paddy had been exempted. The Notice is dated 31st January 1951 and the date of delivery was 2nd February 1951.
5. The petitioner's case is that he was agreeable for fear of harassment and prosecution to deliver the 100 maunds and 20 seers of paddy although the demand was in effect to sell on credit to an Agent appointed by the Government at an unremunerative price. But the D. P. Agent did not come to Dherageria to take delivery nor was any conveyance or cost of transportation provided to the petitioner to carry the paddy to Gopiballavpur.
6. On the 6th February 1951, the procurement officers visited the house of the petitioner, served another notice upon him directing him to deliver 430 maunds and 20 seers of paddy and few hours thereafter started forcibly removing the paddy stacked in the petitioner's Khamar inspite of the petitioner's protest and inspite of his pointing out to the officers that 150 maunds of the stack belonged to his father-in-law and 50 maunds to his brother-in-law, they lifted 534 maunds of paddy from the Khamar.
7. It is alleged that the stack of paddy seized and taken away not only contained the food stock of 3 families but even the seeds for future cultivation in the coming year, and the price offered did not even cover the cost of production.
8. After the seizure was effected the opposite party No. 2 left two notices of seizure at the place and went away with the seized stock.
9. It is stated in the petition that the Requisitions to Sell and the Orders of seizure were mala fide and arbitrary and the Bengal Food Grains (Disposal and Acquisition) Order 1947 is repugnant to the Constitution and imposes unreasonable restrictions on the exercise of the rights guaranteed by clauses (f) and (g) of Article 19 of the Constitution. It is stated that the Respondent No. 2 had no jurisdiction to issue the directives or orders of seizure. In the circumstances the petitioner has applied for the reliefs stated above.
10. The opposite parties Nos. 2 and 3 have filed counter affidavits.
11. It is stated by the opposite party No. 2 that at no point of time was it even brought to their notice that any portion of the stock belonged to the father-in-law or the brother-in-law and neither the father-in-law nor the brother-in-law at any stage claimed or even now has claimed any portion of the paddy seized as belonging to them.
12. It is pointed out that the price of paddy is fixed at the discretion of the Requiring Authority and deduction if any, for poorness of quality or for incidental charges is made at the rate prevailing in the locality. The Government has fixed a ceiling price for the welfare of the general public and after considering all aspects of the matter, and to minimise the cost of transportation the Government has set up procurement godowns in the interior villages and there are Direct Purchasing Agents attached to the godowns who purchase the commodities and pay the price in cash.
13. The affidavit explains why and how the seizure was effected and how or in what circumstances the second Directive came to be served on the 6th February 1951. It is denied that the price of paddy offered by the Government did not even cover the cost of production.
14. The paddy seized has been sold by the Government and the price of the Stock has been deposited in the Treasury as the petitioner refused to take the money. The allegation of mala fide is denied.
15. The affidavit of the opposite party No. 3 is on the same lines. Paragraph 4 of the affidavit sets out in little more detail as to how the price is ascertained and paid. The Senior Government Pleader has also placed before me the Government Notification dated the 6th April 1951 and the Specification Table for showing how the price is ascertained or fixed.
16. In the affidavit in reply certain additional facts have been introduced for the first time. It is stated that the petitioner has got only 30 bighas of land which yield about 300 maunds of paddy, and out of this the petitioner has to maintain not only members of his family but agricultural labourers.
17. It is further stated that the prevailing market rate of paddy in the locality is Rs. 13/-or so per maund.
18. The entire stock has been taken away and no exemption has been granted for the petitioner domestic consumption or for other contingencies.
19. These additional facts introduced in the affidavit in reply cannot be taken notice of as the respondents have no opportunity of dealing with them or controverting them if they wanted to do so.
20. It has been contended by Mr. Priti Bhusan Burman the learned Advocate for the petitioner that Section 3(f) (i) and (j) and Section 4 of the Essential Supplies Act, 1946 and Section 3(1) of the Bengal Food Grains (Disposals and Acquisition) Order, 1947, impose unreasonable restrictions on the exercise of the rights guaranteed by Article 19(1)(f) and 19(1)(g) of the Constitution and as such they are ultra vires the Constitution.
21. The point as to Essential Supplies Act has been taken in the petition.
22. Mr. Burman, however, argues that these legislations provide scope for exercise of arbitrary power by the Central Government or the State Government and their officers. The entire stock of food grains of every person holding the stock can be compulsorily acquired by the Government. This according to Mr. Burman is unreasonable. It appears to me that this is not the correct way of reading the Sections or the Clauses in question. The Legislations empower acquisition of the whole or part of a stock. The acquisition of entire stock in a particular case may not be unreasonable at all. If a person has different stocks at different localities then in such a case acquisition of one stock of a particular locality cannot cause hardship or oppression on the individual concerned. Moreover it is clear from the provisions of the Bengal Food Grains Acquisition Order that exemption of some quantity for the person whose stock is being acquired is contemplated in every case of acquisition. Clause 3(2) read with 3(1) of the order gives clear indication to that effect.
23. It was further argued by Mr. Burman that clause 3(2) of the Bengal Order, makes the decision of the Requiring Authority final. The person whose stock is being acquired has: no right to make representations against the action or decision of the Authorities concerned. The provision for making the decision final has the effect of barring an appeal to the higher or superior authority but it does not prevent the person aggrieved from making representations to the authorities or does it preclude them from having recourse to Courts of law.
24. It was also contended that the penalties of forfeiture of stock and provision for prosecution are unreasonable being coercive in their nature. I do not think that the argument is sound. Unless there is some such coercive provision in the Statute enforcement of obedience to the Statute will become impossible. If the person who is directed to deliver the stock finds that he can evade the provisions of the Statute with impunity or with no serious prejudice to his interest, the breach of the provisions of the Statute rather than their observance will become the order of the day.
25. In construing Article 19(5) of the Constitution, in 'DR. N.B. KHARE v. STATE OF DELHI', : 1SCR519 , the learned' Chief Justice of India observed:
'In my opinion, Clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the Executive authority to administer the law is not relevant for the true interpretation of the clause.'
26. It is well settled that a Court, in construing the provisions of a Statute is not entitled to presume that the persons invested with powers under the Statute will abuse their powers, nor can the Court declare a Statute as unconstitutional' or ultra vires on the ground that it does not provide adequate safeguards against possible abuse of the powers.
27. Mr. Burman has drawn my attention to the cases of 'ATAR ALI v. JT. SECRETARY TO THE GOVERNMENT OF WEST BENGAL', 55 Cal W N 94 and 'KHAGENDRA NATH DE v. DT. MAGISTRATE OF WEST DINAJPUR', 55 Cal W N 53.
28. Those cases dealt with the provisions of the West Bengal Security Act. The object, scope and the provisions of that Act are quite different from the Bengal Food Grains Order, 1947. What may be considered as unreasonable for the purposes of the West Bengal Security Act, may not necessarily be unreasonable for the purposes of the Bengal Food Grains Order, 1947. As the two legislations are not in pari materia it will not be proper to rely on the observations made in those cases for determining the constitutionality of the Bengal Acquisition Order.
29. Moreover the learned Chief Justice has observed in clear and unambiguous terms that the absence of provision allowing representation cannot make the Statute ultra vires.
30. Mr. Burman's argument on the question that the provisions for delegation contained in Section 4 of the Essential Supplies Act and the delegation of powers to subordinate officers as provided in Bengal Order 1947 are bad is equally untenable. Section 2(c) of the Bengal Acquisition Order defines Requiring Authority and the persons who fall within that definition are specified. The persons mentioned are responsible officials. The Bengal Order does not provide scope for delegating the powers to be exercised under the Act to any and every subordinate officer whether fit to exercise the power or not. The more important part of the work and the making of the main order is done by the Requiring Authority and only ministerial part of the work such as-taking delivery, weighment, price calculation actual seizure etc. are done by Subordinate Officials and unlesss this is allowed to be done, it will be impossible to carry out the purposes of the Bengal Foodgrains Order at all,
31. The observation the learned Chief Justice made in connection with Section 38 of the West Bengal Security Act 1950, in 'KHAGENDRA NATH DE'S CASE', 55 Cal W N 53, does not apply to the construction of the Bengal Acquisition Order, 1947.
32. The decision of the Special Bench of this Court in 'RAMANANDA v. STATE', 55 Cal W N 572, negatives Mr. Burman's contention based on Section 4 of the Essential Supplies-Act, 1946.
33. The attack on the constitutional validity of the Essential Supplies Act and the Bengal Food Grains (Disposal and Acquisition) Order, 1947 must therefore fail.
34. Mr. Burman has next contended that the Directives purported to have been served in this case did not specify the price of the paddy directed to be sold and hence they were not Directives under the Act and as such should be cancelled and the respondents should be directed to forbear from giving effect to the Directives and further any steps taken under such Directives must be held to be illegal. It is pointed out that the Directive states the price to be not exceeding Rs. 7/8/- per maund for paddy subject to deduction on account of poorness of quality & cost of transportation and other incidental charges incurred by the Government. Mr. Burman argues that under the Bengal Foodgraing, Order, there is no power to reduce, the price by making deductions for costs of transportation or other charges. The Government is to pay or allow additional sums to the sellers over and above the price for costs of transportation or incidental charges if incurred by the seller, in carrying out the Directive issued by the Requiring Authority. It appears to me that this contention is based on a misconstruction of the provisions of the Bengal Food-grains Order. The words 'make allowance' occurring in the proviso to clause 3(1) of the Order mean that deduction in or abatement of the price to be paid by the Government can be, allowed by the Requiring Authority if the quality of the paddy is found to be poor or it is found that the Government has to incur any transport or other charges such as packing or weighing charges which the seller should normally bear in any particular case. It also gives a discretion to the Requiring Authority to allow extra sums to the seller if in any case the seller has to incur any transport or other charges in putting through the transactions of sale or in carrying out the Directive. This appears to be the reasonable construction of the words in question. It is stated in the affidavits in opposition that the Government has set up depots or godowns in villages for facilitating the work of procurement and these are within easy reach of the persons whose paddy is directed to be sold. What the sellers have to do is to deliver the paddy at the godowns so set UP just as they would have to go to the Hat or market at some distance and sell their commodities there in the ordinary course of their trade or business. If the sellers do not take their paddy to the godown but the Government has to send its conveyance to the seller's place for collecting the paddy it can charge some amount for cost of transport and deduct it from the price payable by the Government. The words 'making allowance' in Section 10(2) of the Income-tax Act have been used in the sense of giving or allowing deductions.
35. The next question is whether the price has been specified in the Directive as required by the Food Grains Acquisition Order, 1947. Clause 3(2).
36. Price has been defined in the Sale of Goods Act (Section 2(10) ) as meaning the money consideration for a sale of goods.
37. In Section 9(1) of the Sale of Goods Act, it is provided that
'The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties.'
38. The Foodgrains Order, however, requires the price to be specified in the general or special notice itself.
39. What the Directive means is that the price of the paddy per maund is to be Rs. 7/8 or less' (if there is occasion for any deduction on grounds stated in the Directive). The basis on which the price is to be determined has been stated in the Directive. The documents produced by the Government Pleader show that price is calculated on a fixed basis.
40. In 'ATTORNEY-GENERAL v. MARQUIS OF HERTFORD', (1845) 14 M & W 284 at p. 294: 153 E R 484 at p. 488, Baron Parke held that '700 or less' was a 'specific sum' and was exempted from payment of legacy duty. (See also Mulla, Sale of Goods Act, 2nd Ed. 1950 pages 48-50 and the footnotes thereof).
41. To construe the words 'specify the price' to mean that a definite or fixed or unalterable amount must be set out in the Directive as the price, is in my view too rigid a construction to be put on the terms of Clause 3(2) of the Bengal Foodgrains Order, 1947. If a definite basis for ascertaining the price is indicated there is sufficient compliance with the Statute.
42. Mr. Burman has drawn my attention to a decision of this Court of K. C. Das Gupta J. and P. N. Mookeriee J. in Criminal Revn No. 1108 of 1950, 'ABDUL JABBAR v. STATE', judgment delivered on 16-4-1951, in which the learned Judges have held that a Directive worded in similar terms as the Directive in the present case was not in accordance with the provisions of Clause 3(1) and 3(2) of the Bengal Foodgrains (Disposal & Acquisition) Order, 1947.
43. It is a decision of the Division Bench of this Court and it is binding on me.
44. The petitioner has taken this point in his petition though vaguely in Paras. 6 and 12 and more specifically in Para. 7 of the Affidavit in reply and the learned Advocate for the petitioner argued this point at some length before me.
45. Mr. Chandra Sekhar Sen, points out that as the stock of paddy seized from the custody of the petitioner has been disposed of and is no longer in existence no direction for return of the paddy can be given. It is true that the Court will not make an order which cannot be carried into effect but the petitioner has also prayed for cancellation of the orders for requisition and seizures in the present proceedings which this Court has power to do.
46. In my view the petition must succeed. The Rule is made absolute in part. The orders for Requisition and Seizure mentioned in the petition are cancelled. The petitioner is at liberty to take such steps as he may be advised for illegal seizure and wrongful disposal of the stock of paddy.
47. The petitioner is entitled to costs of the present proceedings. Hearing fee is assessed, at five gold mohurs.
48. I direct that a copy of this judgment be supplied to Government free of cost, as prayed for.