1. This is a Rule issued upon the opposite parties to show cause why the West Bengal Food Grains (Intensive Procurement) Order 1952, and the notices complained of in the petition issued on the petitioners in pursuance thereof, should not be declared null and void and, as such set aside, or why appropriate writs should not issue prohibiting them from taking any further steps in pursuance of the said order and the notices issued thereunder or why such other or further order or orders should not be made as to this Court may seem At and proper.
2. The petitioners are eighteen in number and are all owners of lands situate in villages within Police Stations Sadardighi and Nawapara in the District of Murshidabad. They state that they cultivate paddy in these lands with the help of the hired labour. They further state that the yield from these lands is their only source of income, out of which they have to maintain themselves and their dependents.
3. At the time that this application was originally made, the petitioners had been served with notices under 'A' introduced by para 3(3) (a), West Bengal Food Grains (Intensive Procurement) Order 1952, promulgated by the Government of West Bengal, by virtue of powers conferred by Sub-section (1) of Section 3 Essential Supplies (Temporary Powers) Act 1946 (24 of 1946), read with Notification of the Government of India in the Department of Food, No. PY-603 (2)/1, dated 21-10-1946, calling upon them to make a declaration in Form 'B', and directing them in the meanwhile not to deal with or dispose of any portion of stock owned or possessed by them except what was required for family consumption at the prescribed scale, until further orders.
The petitioners have made such declarations, but followed it up by applying to this Court for an order directing the opposite parties not to take any further steps to implement the notices in form 'A', and for other reliefs. Since then notices in form 'C', have been served upon sixteen of the petitioners calling upon them to deliver their available surplus (as mentioned in the notices) to the officer named therein on or before a date specified. I shall presently deal with these notices in detail. The further implementation of these notices in Form 'C' have been restrained, pending the hearing of this rule.
4. Before I proceed further, it would be necessary to refer more fully to the Essential Supplies (Temporary Powers) Act, 1945, Act 24 of 1945 (hereinafter referred to as 'the Act') and the West Bengal Poodgrains (Intensive Procurement) Order 1952 (hereinafter referred to as 'the order'). The Act which is a Central Act came into operation on 19-11-1946. It replaced an ordinance, known as the Essential Supplies (Temporary Powers) Ordinance 1948 (18 of 1948). The Act in its preamble recites that it had become necessary for the continuance during a limited period of powers to control the production, supply and distribution of foodstuff's and certain other commodities, and the Indian Legislature had been empowered by Section 2 of the India (Centra] Government and Legislature) Act 1946, to make laws with respect to the aforesaid matters. The original Act was to come to an end on 31-3-1947, but it has been extended from time to time, the final extension being up to 26-1-1955. Under Section 2 of the Act, the expression 'Essential Commodity' has been defined and includes 'Foodstuffs', Section 3(1) is in the following terms: 'The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production,, supply and distribution thereof, and trade and commerce therein.' The relevant provisions of Section 3(2) are as follows: ''without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide-
(c) for controlling the prices at which any essential commodity may be brought or sold;
(d) for regulating by licenses, permits or otherwise the storage, transpost, distribution, disposal, acquisition, use or consumption of any essential commodity;
(f) for 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;
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(i) for requiring persons engaged in the production, supply or distribution of, or trade or commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto as may be specified in the order;
(j) for any incidental and supplementary matters, including in particular the entering and search of premises etc. etc. .... the grant of or issue of licenses, permits or other documents and the charging of fees therefor.' Section 4 of the Act provides that the Central Government may by notified order direct that the power to make orders under Section 3 shall in relation to such matters and subject to such conditions as may be specified in the direction, be exercis-able also by such officer or authority subordinate to the Central Government or by such Provincial Government or such officer or authority subordinate to a Provincial Government, as may be specified in the direction.
5. Even before the Act came into operation, and under Section 4 of the relative ordinance, the Central Government issued a notification, being No. PY 603 (2)/1, dated 21-10-1946, (hereinafter referred to as 'the notification') directing that the powers conferred upon it by Sub-section (1) to Section 3 of the said ordinance to provide for the matters specified in Sub-section (2) thereof, shall in relation to foodstuffs be exercisable also by any Provincial Government subject to certain conditions. The order was promulgated by the Governor of West Bengal on 22-10-1952, and the Preamble is as follows:
'In exercise of the power conferred by Sub-section (1) of Section 3, Essential Supplies (Temporary Powers) Act, 1945 (24 of 1946 and in particular by Clause (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 Food No. FY-603 (2)/l dated the 21st October, 1946, the Governor with the concurrence of the Central Government is pleased to make the following order ......................'
6. In para. 2 of the order, 'Foodgrain' has been defined to mean rice in the husk (paddy) or rice husked; 'Producer' has been defined to mean a person who cultivates any land or lands, the area whereof is not less than ten acres as proprietor, trustee, sebait, tenure-holder, tenant, subtenant, temporary lessee or occupier, or in any other capacity, either by himself or with the aid of others or receives a portion or share of the food-grains grown on such lands.
7. Under para. 3 of the order, every producer shall if so ordered by the Director sell and deliver to the Director or any person appointed by him, such quantity of foodgrains as may be determined by the Director to be the 'available surplus'. The Director is to determine the available surplus by taking into account on the one hand, the yield of foodgrains estimated by him as grown or received by the producer and on the other hand making allowances for such part thereof as may be required by the producer for his family consumption, for seeds, for feeding agricultural labourers and for payment of rent-in-kind or repayment of loan-in-kind. All these allowances are in accordance with the scales prescribed by Government from time to time.
8. The scheme of the order is roughly as follows. The Director in the first instance issues a notice upon the producer in form 'A' (individual) or in Form A (1) (General), calling upon him to make a declaration in Form 'B', of paddy lands held or cultivated by him or share or produce received by him. By that notice, the producer is directed not to deal with or dispose of any portion of stock owned or possessed by him except what is required for his family consumption at the prescribed scale, until further orders. The Form No. 'B', requires the producer to declare the particulars of the total quantity of land held by him and the area under 'Aus or Aman'. He has also to give particulars of the rent-in-kind to be received or paid by him or loan-in-kind to be received or repaid, as also the number of members in his family including servants taking meals in the house. It will be noted that the producer is not required to state his actual produce, which is wholly determined by estimation. The Director determines the available surplus after considering such declarations or after such enquiry as he thinks fit to make, and then causes notice to be served in Form 'C', calling upon the producer to deliver the available surplus to an officer named in the notice within a specified date.
The paddy or rice has to be sewn in bags supplied by the State and delivered at the place mentioned:; the transport to be supplied by the producer. The price is paid in cash upon delivery at the rate prescribed (Notification No. 10365 P. D. These rates have been prescribed district wise. So far as Paddy is concerned, Aus and Boro have been everywhere fixed at Rs. 7/8/- per maund and Aman other than fine at Rs. 8/8/-per maund 'except West Dinajpur where the price fixed is Rs. 8/2/- per maund. Fine Aman has been fixed at Rs. 10/ to 11/ per maund according to quality. The price includes the cost of delivery at the prescribed destination. The price prescribed as above is for stocks of fair average quality. If quality is less than average, deduction is made at prescribed rates (Notification No. 10366 F. D.). If the amount demanded in the notice is not delivered within the date fixed then the Director or an officer authorised by him may seize the same and then the producer will get the value of the foodgrains seized, less the cost of transport at rates specified. (Notification No. 10367 P. D.). The order further contains provision for inspection, search and enquiry etc, as ancilliary steps to procurement (Section 9).
9. The order contains the following provisions tar review, revision and appeal:
Paragraph 3 (2) proviso -- Any determination of the available surplus made by an officer exercising the powers of'a Director may be reviewed, revised or altered at any stage by any other higher officer exercising the like powers of the Director whenever he considers it expedient to do so.
'paragraph 5 (1)-- Any producer aggrieved by an order served on him under Clause (b) of sub-para. (3) of para 3 may within seven days of the service of the order appeal against the order in the prescribed manner to an officer empowered by the State Government in this behalf. I am informed that this officer is usually the District Magistrate. While the above picture portrays the normal working of the order, it must be observed that it is entirely optional upon the Director to serve notices in form 'A' and ask for a declaration in form 'B'. The Director may rely on any other form of enquiry that he thinks fit and ignore a declaration even if such a declaration has been filed. He may also direct the producer to sell a specified quantity of foodgrains even before the determination of the available surplus. The provision as to review or revision is entirely at the discretion of the officers. Again, while it is true that failure to comply with the directive results in a seizure of the actual stock it does not preclude any punishment to which the producer may be otherwise liable.
10. I shall now proceed to deal with the ob-jections put forward to the validity of the Act and the order. Mr. Mukherjee appearing on behalf of the petitioners has advanced several points and Mr. Das, appearing in Civil Revision Cases 54 and 55 of 1953, has advanced one point of considerable importance. I have heard these cases together and proceed to deal with all the points of law raised before me. Before I come to the actual points raised, I must mention that this is not the first time that the Act has been impugned as being unconstitutional. The most familiar ground of attack has been that it permits delegation of legislative powers. This ground of attack has, however, been finally repelled by the highest court of our land, See -- 'Joylal Agarwalla v. The State', : 1SCR127 (A), and In re -- 'Constitution of India and Delhi Laws Act (1912) etc.' A. I. R. 1951 S. C. 332 (B). Also see --- 'Mulchand Kha-tar v. The State', : AIR1953Cal492 (C). --Mohammad Anzar Husnain v. state of Behar', : AIR1952Pat220 (D)
11. Mr. Mukherjee has not advanced this ground. He does not assail the Act as a whole but argues that Clauses (c) (d) (f) (h) (D and (J) of Sub-section (2) of Section 3 of the Act offend against the fundamental rights guaranteed to his clients under Article 19(1)(f) and (g) and Article 31(2) of the Constitution. At the commencement of his argument, he conceded that Section 3 (1) of the Act was a valid provision of law. This concession, as will presently be seen, puts him in a very disadvantageous position. My decision, however, is not based upon this concession, but upon what I consider the law to be. He says that his clients have the fundamental right to carry on their occupation as cultivators in any manner they wish and to hold the produce of their lands in any manner they desire and to dispose it wherever and howsoever they please. It is argued that the impugned provisions of the Act offend against these fundamental rights. It is not very clear how the fundamental rights conferred by Clause (g) of Article 19(1) are infringed, except perhaps in the sense that such action on behalf of the State restricts the free exercise of the occupation trade or business of a producer in foodgrains and might render it impossible to carry it on altogether.
Next comes the question of compensation. It is argued that under Article 31(2) of the Constitution, no property can be taken over without compensation. It is said that the word 'compensation' means adequate or reasonable compensation, that is to say, a just equivalent in value. But under the Act, a citizen may be ordered to sell nis goods 'at such prices' as he may be directed by the acquiring authority. It is argued that it is quite true that the Act lays down the payment of some compensation, but since it depends upon the sweet-will and pleasure of the acquiring authority, the price offered may not be a just equivalent. Neither can it be said that the Act has fixed the compensation or laid down any principle for its fixation, excepting the arbitrary whims of the acquiring authority. It is stated that an Act which in its exercise might or might not ire-main confined within the limits of Constitutional validity is wholly void. It is of course emphatically stated that the prices which have been fixed under the Act and the order are not just equivalents 'but unduly low, wholly arbitrary and utterly uneconomic.
12. It will be appropriate at this place to mention the point made by Mr. Das. According to him, the provisions of the order whereby the Government demands an estimated yield and not an actual yield, is not authorised by Clause (f) of Sub-section. (2) of Section 3 of the Act, which speaks of 'Requiring any person 'holding stock' of an essential commodity to sell, etc. etc.' If Clause (f) of Sub-section (2) of Section 3 of the Act was the source from which the Government derived its power to promulgate the order, I must hold at once that the point made by Mr. Das is quite sound. Here the essential commodity concerned is paddy and if the power to make an order was given only in respect of a person 'Holding stock' of paddy, it would be absurd to hold that a person who has a crop of rice growing in the field is the 'Holder' of a stock of paddy. It is admitted that notices in Form 'A' are given when the crop is still in the field, and at least in the case of Mr. Das's clients they had not yet harvested it when notice was served.
13. But the common infirmity in both these arguments lies in thinking that Government has derived its power or authority, under any of the clauses of Sub-section (2) of Section 3 of the Act. The power to promulgate an order of this description is derived from Sub-section (1) of Section 3 of the Act. That power is general in its terms, and authorises 'inter alia' the promulgation of any order providing for regulating or prohibiting the production, supply and distribution of, and trade and commerce in, any essential commodity, in so far as it appears necessary & expedient to do so for maintaining or increasing supplies or for securing their equitable distribution and availability at fair prices. Sub-section (2) of Section 3, commences with the words 'without prejudice to the generality of the powers conferred by Sub-section (1) ............etc'. This shows that Sub-section (2) confers no fresh powers but provides illustrations of the general powers conferred by Sub-section (1), without exhausting the hearings under which such powers can be exercised. This has been held by the Supreme Court in -- 'Santosh Kumar v. The State', : 1951CriLJ757 (E) following the Privy Council decision in -- 'Emperor v. Shibnath Banerjee', AIR 1945 P C 156 (F).
14. Section 2 (1), Defence of India Act, 1939, as amended by Section 2, Defence of India (Amendment) Act, 1940, empowered the Central Government to make rules for securing the defence of British India, the public safety, the maintenance of public order, etc. Sub-section (2) of Section 2 enacted that without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for several matters, specified therein. Lord Thankerton delivering the judgment of the Board held that the rule-making power was conferred by Sub-section (1) and the function of Sub-section (2) was merely an illustrative one and did not control the general powers conferred by Sub-section (1). The Supreme Court held on an analogy that power under the Essential Supplies Act was derived from Section 3, Sub-section (1), and the provisions of Sub-section (2) were merely illustrative.
15. In the present case, the only difficulty is presented by the actual wording of Notification PY 603 (2)/1, which is as follows:
'....... .The Central Government is pleased to direct that the powers conferred on it by Sub-section (1) of Section 3 of the said Ordinance to provide for the matters specified in Sub-section (2) thereof shall in relation to foodstuffs be exercisable by any Provincial Government'.
16. This is undoubtedly very incompetent drafting. But I think that the meaning is reasonably clear. The 'Matters Specified' in Sub-section (2), being 'without prejudice' to the generality of the powers conferred by Sub-section (1) must be held to include such powers. Thus it cannot be said that the general powers have not been conferred upon the State, but only those specified in Clauses (a) to (j) of Sub-section (2). The only limitation is with regard to the kind of essential commodity concerned. The State has been given powers limited to 'foodstuffs' only.
17. It follows that although the state could not promulgate an order to acquire stock not already held under Clause (f) of Sub-section (2) of Section 3 of the Act, there is no impediment in doing so under the general powers conferred by Sub-section (1) of Section 3. This is also an answer to the objection of Mr. Mukher-jee that Clauses (c) (d) (f) (h) (i) and (j) of sub-s. (2), offend against the fundamental rights conferred by Article 19(1)(f) and (g) or Article 31(2). Even if they do, the Government would have ample powers under Sub-section (1) of Section 3, to promulgate the order.
18. Coming now to the order, Mr. Mukherjee has not argued that it is by itself unconstitutional because it invades his client's fundamental rights. He argues that the order is not within the four corners of the powers conferred by the Act read with the notification.
In particular he argues as follows:--
(1). The power can be only exercised in relation to 'Foodstuffs' and paddy is not a foodstuff. He-points out that the description of paddy as 'rice in the husk' is a colourable attempt to avoid this difficulty.
(2) That there is no power conferred by the Act to order the producer to deliver the goods at a prescribed destination, as provided for in para-3(5) of the order.
(3) That the prohibition contained in the notice in Form A, whereby the producer is directed not to deal with or dispose of any portion of stock owned or possessed by him etc., is not authorised by any power conferred either by the Act or the order.
19. But although Mr. Mukherjee did not specifically take that point before me, in course-of argument he inevitably took the stand that several of the provisions in the order e.g. sub-paras 1, 2(a), 3(b), (4), (5) of paras 3, 6 and 7' of the order were unreasonable restrictions on his fundamental rights, and the prices prescribed thereunder were not reasonable compensation. Thus, I have not only to consider whether the order comes within the four corners of the powers conferred by the Act read with the notification but also whether it offends the fundamental rights conferred by Article 19(1) and (g) or Article 31(2).
20. Before I deal with the question as to-whether the Act or the Order offends against the fundamental rights of the petitioners under Article 19(1)(f) or (g), I must dispose of a preliminary point taken by the learned Advocate General. He-argues that where Government acquires property-belonging to the citizen for a public purpose, Article 19 does not apply at all. According to him, the right of the Government to acquire property for a public purpose arises under Art 31 and it is-that article alone which is applicable. If Article 19 is-excluded, no question can arise of 'Reasonable restrictions', the question is entirely one of tile-compensation to be paid.
21. In -- 'A.K.Gopalan v. The State of Madras', : 1950CriLJ1383 (G), Das J. said as follows:
'But suppose a person loses his property by reason of its having been compulsorily acquired: under Article 31 he loses his right to hold that property and cannot complain that his fundamental right under Sub-clause (f) of Clause (1) of Article 19 has been Infringed. It follows that rights enumerated in Article 19(1) subsist while the-citizen has the legal capacity to exercise them. If his capacity to exercise them is gone ...... by reason of a lawful compulsory acquisition with respect to the right in Sub-clause (f), be-ceases to have those rights while his incapacity-lasts.'
22. In -- 'Charanjit Lal v. The Union of India, : 1SCR869 (H), the same learned Judge said;
'The fundamental rights said to have been infringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property-secured by Article 31. In 'Gopalan's case (C)' (Ibid) I pointed out that the right to property guaranteed by Article 19(1)(f) would likewise continue until the owner was, under Article 31, deprived of such property by authority of law'.
23. Coming to our Court, we have the Division Bench decision, -- 'Sudhindra Nath Datta v. Sailendra Natli Mitra', AIR 1952 Cal 65 (I). In that case Harries C. J. said as follows: --
'In my opinion it is quite clear that Article 19(1)(f) of the Constitution has no application to cases where a State, authority or person has compulsorily acquired property or obtained possession of property. The relevant provisions are to be found in Article 31.'
24. In a later case, however, -- 'West Bengal Settlement Kanungol Co-operative Society Ltd. v. Mrs. Bella Banner jee', : AIR1951Cal111 at p. 116 (J) Harries C. J. threw some doubt upon the above proposition by saying:
'A statute empowering a State compulsorily to acquire property can be said to impose a restriction on the right to hold property. A person who acquires property has a right to hold it until he desires to part with it. A statute empowering a State compulsorily to acquire property does affect the right to hold property. It renders that property liable to be acquired compulsorily and against the wishes of the person who holds it. It is in the true sense a restriction on the right to hold property as it renders the property liable to compulsory acquisition at the instance of Government or some authority. If that be so, then a statute dealing with compulsory acquisition would have to comply With Clause (5) of Article 19 and if it imposed on the citizen a restriction that was more than necessary in the interest of the general public then such a law would be void'.
25. This case came up before the same bench on review, and Harries C. J. said 'Much however might be said in support of the view that Article 19(1)(f) has no application but the matter is by no means a simple one and the point can, I have said, be decided on other grounds'.
26. Bose J., in several cases has held that Article 19(5) of the Constitution is not attracted where the legislative enactment is 'aimed at the compulsory acquisition of property by the Government for public purposes --'Md. Safi v. State of West Bengal, : AIR1951Cal97 (K), -- 'Naba Kumar v. West Bengal State', : AIR1952Cal870 (1), --'Aswini Kumar v. State of West Bengal', : AIR1952Cal679 (M). The matter has also been considered by other High Courts. In --'Suryapal Singh v. U. P. Government', : AIR1951All674 at p. 690 (N), a Full Bench of the Allahabad High Court has held as follows:
'In our view the acquisition of property is not the subject of Article 19(1)(f) but of Article 31. This view is reinforced by the consideration that as the Constitution contains specific provisions in Article 31 relating to the acquisition of property it is unlikely that it was intended that the matter should also be within the ambit of Article 19(1)(f)'.
27. In --'Dwarkadas v. Sholapur S. and W. Co. Ltd.', : AIR1951Bom86 (O), the learned Judges observe:
'The rigt to acquire, hold and dispose of property guaranteed to the citizen under Article 19(1)(f) would only be operative in the case of those whose property has not been taken away under Article 31. That must be so logically, because if a man has been deprived of property under Article 31(1) or 31(2) no question of acquiring, holding and disposing of that property could possibly arise under Article 19. This right can only be made justiciable provided the legislature 'has not validly taken action under Article 31 and it is only then that the question may arise whether any restrictions placed upon that right under Sub-clause (5) of Article 19 are reasonable restrictions or not'.
28. This view has been followed in -- 'Thambiran Padayachi v. State of Madras', : AIR1952Mad756 at p. 75S (P). Had the matter been one of first impressions I would have held that a legislative enactment granting the power of acquiring, property compulsorily, necessarily affects the-fundamental right of a citizen to hold and dispose of property as he likes. If, however, it is to be done for a public purpose, it is a reasonable restriction under Article 19(5). In other words, it would then satisfy the provisions of Article 19(5), and not make it inapplicable. I am, however, bound by authority and must hold that a legis-lative enactment empowering Government top acquire property of a citizen compulsorily for a public purpose, attracts Article 31 and not Article 19. In such a case, what has to be considered is the question of compensation. It is irrelevant to consider whether it imposes reasonable restrictions on the fundamental rights conferred by Article 19(1) or (g). But this would be true only in a case where the legislative enactment is one for acquisition simpliciter. Where it is a composite piece of legislation like the present Act which we are considering, we have to distinguish that part of it which deals with acquisition from the rest.
In Section 3d), power is given for regulating or prohibiting the production, supply and distribution of essential commodities. Such a power may be exercised in a variety of ways including that of acquisition. In an enactment meant for acquisition,, we may again have a pre-acquisition stage and a post-acquisition stage. During the pre-acquisition stage, powers of regulation, control or prohibition may be exercised, even before the goods have been acquired, so that Article 19 will be attracted. The order is undoubtedly a measure, primarily intended for the acquisition of food-grain by the Government of West Bengal. But even here, we have a pre-acquisition stage. Even before the producer is called upon to sell his rice or paddy to the State, in fact at a time when he has not even harvested the crop; he is called upon to make declarations regarding his land and is prohibited from dealing with or disposing it of to any one else.
Then we find that in pursuance of powers; granted by Section 3(1) read with Clause (c) of Sub-section (2), the Government has imposed a control over the-price of foodgrains which producers may charge-in respect of procurement made under the order. Then again, the producer served with a notice-is compelled to harvest the paddy grown by him, thrash it in time and store it properly and take reasonable precaution to prevent damage and theft. Finally, we find notice served in form 'C', when the acquisition starts. After this,. Article 19 ceases to operate, and the question is whether Article 31(2) has been complied with.
29. Therefore the matter stands thus. Section-3(1) of the Act confers wide powers on the Central Government to promulgate orders for the purposes of regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein, if it appears to-it necessay or expedient for maintaining or increasing their supply or for securing their equitable distribution and availability at fair prices, Subsection (2) of that section specifies several illustrations of such fpowers and the mode in which they-may be exercised.
30. Under Sub-section (b) of Section 4 of the Act, these-powers may by notification be made exercisable by any Provincial Government. The State of. West Bengal has been authorised to exercise such powers so far as foodstuffs is concerned (with certain exceptions not relevant to be stated). One of the ways in which the power to regulate or prohibit the production and distribution of foodstuffs, can be exercised, is to acquire the foodstuff from (producers in surplus areas and to distribute the same in areas where they are most needed. But such power can be exercised in a variety of ways other than compulsory acquisition, for example by controlling prices, by prohibiting sales except in a certain specified manner, and so on and so forth. In so far as such powers are exercised for purposes of compulsory acquisition for a public purpose, the only thing to see is whether Article 31(2) of the Constitution has been infringed. In other cases, it will have to be considered as to whether the provisions of Article 19(1)(f) or (g) have been infringed. In the first case, it will be necessary to consider the question of reasonableness of compensation, in the latter case, the reasonableness of the restrictions imposed. The order is stated to have been 'promulgated in exercise of the power conferred by Sub-section (1) of Section 3 of the Act and in particular by Clause (c) (d) (f) (h) (i) and (j) of Sub-section (2) of that Section.
Mr. Mukherjee has not challenged the power under Section 3(1) of the Act but under Sub-section(2) of that Section. Since the power is in reality derived from Section 3(1) of the Act, this would suffice to put him out of Court. But I am not going to decide this case upon this basis. I would have to examine whether powers conferred by Section 3(1), excepting the power to acquire compulsorily for a public purpose, offends against Article 19(1)(f)& (g). Also I have to consider whether Clause (c), (d), (h), (i) of Sub-section (2) offend against Article 19(1)(f) & (g). Thirdly I have to consider whether the powers in Section 3d) in so far as they may provide for compulsory acquisition for a public purpose offend against Article 31(2). Similarly in case of Clause (f) of Sub-section (2) of Section 3, the question to be considered is as to whether it offends against Article 31(2).
31. As regards Clause (j) of Sub-section (2) of Section 3, the applicability of Article 19 or 31 will depend upon the question whether it is related to an order for compulsory acquisition or not.
32. Lastly, I have to consider whether the provisions of the Order (e. g. sub paras. 1, 2 (a), 3 (b) (4) and (5) of para. 3, para. 6 and para. 7) offend against Article 19(1)(f) & (g) where they relate to a stage prior to acquisition or against Article 31(2), where they relate to a stage after acquisition. If any of these provisions transgress Article 19(f) & (g), the question to be considered is whether they are saved by Article 19(5). The learned Advocate General does not wish to take recourse to Article 31(5).
33. Let me now consider the powers granted by Section 3 (1) of the Act, mentioned above, in so far as they do not relate to compulsory acquisition for a public purpose. The power to regulate or prohibit production or supply and distribution, and trade and commerce in essential commodities may be exercised in a myriad ways. Some may be mere steps to ultimate compulsory acquisition, others having no connection therewith. Thus, control of prices may be made without acquisition, or as in the instant case, prelude to acquisition, and in aid thereof. Such powers, however, cannot exist in vaccuo. In so far as the State regulates or prohibits production or supply and distribution or trade and commerce in essential commodities, it must constantly cross the border line and restrict the citizen's right to acquire, hold or dispose of such property or the free practice of his occupation, trade, business or profession. The question, therefore, is as to whether such restrictions are reasonable and in the interest of the general public, and thus saved by Article 19 (5) or (6). Before examining whether the particular restrictions complained of are reasonable or not, let us see what constitutes in law a 'Reasonable Restriction' under Sub-sectioins (5) and (6) of Article 19. The phrase 'Reasonable restrictions' has now been considered in at least three Supreme Court decisions; --Dr. Khare v. State of Delhi', : 1SCR519 (Q). -- 'Chintaman Rao v. State of Madhya Pra-desh', : 1SCR759 (R) and -- 'State of Madras v. V. G. Rao', : 1952CriLJ966 (S).
The law laid down, both from the objective and the subjective point of view may be summarised as follows:
(1) The phrase 'reasonable restriction' connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public (Per Mahajan J. In -- 'AIR 1951 S. C. at p. 119)
(2) The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness. (Per Mahajan j. in -- 'AIR 1951 S. C. at p. 119)
(3) Clause (5) of Article 19 must be given its full meaning. The question 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 an abuse of the power given to the executive authority to administer the law is not relevant for the true interpretation of the Clause. (Per Kania C. J. in -- 'AIR 1950 S. C. at pp. 213-214)
(4) The law providing reasonable restriction on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedu-dural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise to the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. (Per Kania C. J. in -- 'AIR 1950 S C at p. 214).
(5) The Court should consider not only factors such as duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised (Per Patanjali Sastri C. J. -- 'AIR 1952 S O at p. 200)
(6) The restriction of a power to the duration of a period of emergency was a sufficient safeguard (Per Lord Wright quoting Lord Dunedin, in --'Liversidge v. Sir John Anderson', (1942) A. C. 208 at p. 214 (T)).
(7) The test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to be infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict (per Patanjali Sastri C. J. in -- 'AIR 1952 S. C. at p. 200).
(8) The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive. It is subject to supervision of the Court, which watches and guards the rights guaranteed by the Constitution and has the power to set aside an Act of the legislature, if it is in violation of the freedom guaranteed by the Constitution. (Per Mahajan J. in -- ' : 1SCR781 )
(9) In evaluating the elusive factors which go to decide whether a restriction imposed by law is reasonable or not, a Judge has to form his own conception of what is reasonable in all circumstances of a given case. In doing so, it is inevitable that the social philosophy and the scale of values of the Judge participating in the decision should play an important part and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their thinking but for all, and that the majority of the elected representatives of the people hare, in authorising the imposition of the restrictions, considered them to be reasonable. (Per Patanjali Sastri C. J. in -- 'AIR 1952 S. C. at p. 200).Metropolitan Casualty Insurance Co v. Brownell', (1935) 294 U. S. 580 (U)).
34. Let me now apply the tests adumbrated above to the general powers conferred by Section 3 (1) of the Act. It is not denied by Mr. Mukherjee and indeed the fact is so notorious that the Courts must take judicial notice thereof, that there exists an overall shortage of foodstuffs not only in India but in the whole world. In particular, it is a, notorious fact that there is an acute shortage of rice in the rice-eating areas of India, particularly West Bengal. Whether the origin of such shortage is to be attributed to the aftermath of a devastating World War, or to the unchecked growth of the population, or to the political dismemberment of the country, or to a fortuitous combination of all such factors, it is unprofitable to consider. The stark reality confronts us that there is not enough food to go round and parts of the country are constantly verging on conditions of acute shortage and even famine. Under such emergent circumstances, would it be unreasonable for the legislature to vest the Government with wide powers of regulating or prohibiting the production, supply or distribution of essential commodities in so far as it appears to it to be necessary or expedient for maintaining or increasing such supplies or for securing their equitable distribution and availability at fair prices? I think not.
The object of good Government is constantly to adjust the conflicting claims of its different components. Neither the administration of the State nor the administration of the law itself can flourish in a State of unstable equilibrium. If one part of the country is faced with a famine or even acute shortage of food stuffs, it is not unreasonable to expect the Government to acquire food compulsorily from surplus areas at a reasonable price and transport it to the deficit areas. Indeed such would be its plain duty. It is true that the conferment of the fundamental rights upon a citizen by the Constitution is a landmark in our history. But the most fundamental fact of all is that the State must survive. To talk of the fundamental right to hoard as one pleases, to profiteer as one pleases, to be the Lord of one's Manor and Fief, all this sounds edifying under certain given circumstances of peace and plenty but it is a mockery when a man's brother its out in the pavement naked and unfed.
35. Even the liberty of the subject -- that right which English jurisprudence guards so uncompromisingly in times of peace, is no longer inviolable and sacrosanct during periods of emergency. 'The suggested rule as to construing penal statutes' said Lord Wright in -- 'Liversidge's case (T)', (ibid),
'in favour of the liberty of the subject had no reference to a case dealing with an executive measure by way of preventing a public danger ........ 'However precious' said Lord Atkinson 'the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national blunder or enslavement' ................'
The Statute in question and the powers sought to be conferred thereby are not permanent but temporary. The continuation of the evil sought to be remedied is the measure of the justification for its existence at any given point of time. It is not long ago that we emerged out of a devastating world war and immediately thereafter came the turn in our national fortunes, when we emerged into a state of political emancipation. So far as the State of Wept Bengal is concerned, it became free but truncated, most of the food producing areas going to Eastern Pakistan. While the sources of food-supply have thus diminished, the State has suddenly been faced with an unprecedented influx of refugees from over the border. Thus, there is less food but more mouths to feed, leas production and more consumption, It follows naturally that in such an emergency, an infant State must of necessity be clothed with plenary powers in order to regulate the production and distribution of foodstuffs with an eye to maintain or increase the supply. To expect that the State will not take from any one and yet give to ail, that it should procure at the highest price and distribute at the lowest, that it should nurse, clothe and feed the multitude, without the least executive interference or without the least encroachment upon any of the fundamental right guaranteed by the Constitution is to my mind a counsel of perfection not likely to be attained. In England, even in peace time the widest possible powers were conferred upon the Board of trade by the Foodstuffs (Prevention of Exploitation) Act 1931, 21 and 22 Geo, 5, to control any shortage or unreasonable increase in the price of any article of food or drink of general consumption. The result is that I do not find anything arbitrary in such restrictions; anything excessive, beyond what is required in the interests of the general public. In my opinion, there is nothing in the restrictions imposed by Section 3 (1) of the Act which fails to pass the tests laid down above. I, therefore, hold that the restrictions imposed by the general powers conferred; by Section 3 (1) of the Act upon the fundamental rights conferred by Article 19 (f) or (g), are reasonable restrictions which are in the public interest.
I am of the same opinion as Shearer J. was, in -- ' : AIR1952Pat220 (D)', in respect of the Bihar Levy Order, which 1 quote below:
'To sum up, India is a predominently agricultural country, and yet at the moment cannot produce enough food for its rapidly increasing population. In such a situation, in order to prevent, famine occurring in particular local areas, it is necessary that the State should control the distribution of grain and in order to enable it to do this it must have control of large stocks of grain itself. The only way in which it can do this is to require producers to deliver a part of their stocks to the State or agents of the State. As I have already said the quantity of grain which any producer is required to deliver is not so high that it does not leave him with sufficient for his own consumption and for seed, and indeed, in some cases with a certain surplus which he is at liberty to sell. That being so, the restriction imposed on producers is a reasonable restriction, 'and is imposed in the interests of the general public'.
I now come to the specific clauses in Sub-section (2) of Section 3. Clause (c) gives power to control the price. Even Mr. Mukherjee has not argued that such a power is unreasonable. What he says, however, is this. ' He says that he can understand a general control of all essential commodities. In that event, his clients would know that if they received less for one commodity they could buy others for less. He says that it is unreasonable to ration only industrial areas and then forcibly take away the food from the areas where they are grown, to feed those who themselves grow nothing.
This, he says, is to compel the producer to be charitable taut at his own expense. In my opinion, there is no foundation for this argument. The industrial area does not naturally grow food; but it produces many things without which the cultivator cannot exist. He must have his ploughshare to plough, kerosene oil to light his evening lamp, cloth to wear, medicines in time of illness, & so on and so forth. How then can it be unreasonable to compel him to part with his surplus to feed the industrial area? As regards the area within which price is to be controlled, that is a matter which must be left to the discretion of the Government. The remedy must be proportionate to the evil that is sought to be remedied. If no general control is necessary, government would rather be exceeding its powers if it insisted on general control.
36. No argument was advanced before me on Clause (d), (h), (i) or (j). I cannot see how without these powers would it be possible for any State to regulate or prohibit the production, supply or distribution of essential commodities.
37. I now come to the order; it is said that several provisions of the order relating to a stage when the goods have not yet been acquired, offend against the fundamental rights conferred by Article 19(1)(f) and (g) and the restrictions imposed are not reasonable restrictions, such as are in the public interest. The first ground of attack is the method employed in estimating the produce by not calling for a declaration as to the actual produce of the land. It is argued that an executive officer sitting in his arm-chair hundreds of miles away lays down by estimation, what a man's yield should be, purely on an imaginary basis. The producer is merely asked to state as to what area is under rice. He has no opportunity of saying whether part of that area has reason to be less productive than the rest. His land may suddenly 'be flooded, or left arid far want of water, his crop may be destroyed by pests or die for want of manure. He may be unable to deliver whatever amount the executive officer thinks that his land should yield.
This argument sounds plausible but is without substance. If the return called for the disclosure of the actual yield of a cutivator's land, then the determination of it could only be made upon a survey and inspection of that land. If. it was intended to inspect all lands, producer-wise, in order to determine the available surplus in a given Case the staff and administrative machinery required to investigate the case of about four million cultivators would be so stupendous and costly that the very object of the order would be frustrated. On the other hand, let us consider the result of a determination by estimation. What actually happens is that the Government prepares some kind or a record union-wise and then calculates the available surplus on the footing of the average expected yield in the locality. The worst that can happen is that the actual yield of a person may be below the average and so the actual surplus, may be less. He can always move the authorities, for review or revision and ultimately go to the district magistrate in appeal. If he convinces the authorities that he has not the goods which he has been asked to deliver, the demand has necessarily to be modified. This must be so because the producer cannot deliver more than he has and the next step to be taken by Government is to seize the goods and they cannot seize more than what exists.
It is true that a non-compliance also exposes the producer to penalties other than seizure. But it must be realised that to establish the fact that an offence has been committed it would be for the Government to prove that the producer had: the goods'and yet did not comply with the directive. I must refer here to a case that was decided by a Divisional Bench of the Patna High Court. ' : AIR1952Pat220 (D)', which is very much on all fours with the present case. The Court was there considering the validity of the Essential Supplies Act and an order promulgated by the Bihar Government under it, viz., 'the Bihar Agriculturist Levy Order (1950)', which is very much: upon the lines of the order I am investigating here, only some of the terms are even more stringent.
Referring to an argument made on similar lines,. Shearer J. stated as follows:
'Finally the scale of levy is based on the assumption that in Bihar the average gross produce of paddy from one acre of land is 12 mds or 8 mds according as the land is or is not canal irrigated and that in Chotanagpur and the Santhal Parganas the average gross produce is 12.8 or 4 maunds of paddy according as the-land is first second or third class land respectively .................. Throughout Bihar and Chotanagpur except in the Khasmahal villages, the State has no officials capable of appraising-crops, and to have recruited a staff for this purpose would, I imagine, have been quite impracticable. Moreover appraising standing crops-is a very difficult task and serious errors are likely to be made one way or the other. Even if it had been possible to do this, and it would, in my opinion, have been quite impossible, more hardship would have been likely to have been caused than is likely to be caused by the procedure, adopted, namely by assessing the demand in each case on the assumption that the average outturn will be a certain quantity of paddy per acre, the notional figure taken being well on the low side .......... Finally it must be remembered that the order contains provisions entitling any large producer on whom a demand is made, to apply for a revision of the assessment and if the assessment is not revised to his satisfaction to appeal against it.'
The next grievance of Mr. Mukherjee is that in calculating the available surplus, that scale fixed .for consumption of the producer and his dependents is wholly inadequate. He argues that rice is the staple food of the villager and he has not the variety of fancy foodstuffs that a city dweller has. I find, however, that 10 mds is allowed per head, irrespective of the fact whether the consumer is an adult or a child. This is about double the amount allowed to an adult in the Calcutta industrial area,, under the rationing regulations. I find nothing unreasonable in this. As regards the other provisions of the order, regarding the power of inspection, seizure, etc., or the power to prohibit disposal pending acquisition, these are all ancillary to the main object of procurement and I do not find them unreasonable or not in the public interest.
38. I now come to the all important question of compensation. This obligation of the Government arises under Article 31(2) of the Constitution, which provides that where government acquires property for a public purpose under any law authorising the taking of such possession or such acquisition, the law must provide for payment of compensation and either fix the amount of compensation or specify the principles on which and the manner in which the compensation is to be determined and given. Mr. Mukherjee argues that 'compensation' means a reasonable compensation. The learned Advocate General submits that I cannot import the word 'Reasonable' into Article 31 as it would be adding to the Constitution. In -- ' : AIR1951Cal111 (J)', Harris C. J. held as follows:
'It seems to me that the word 'reasonable' or 'just' qualifying the word compensation is really unnecessary because compensation to be compensation must be a compensation reasonable or just equivalent ....In my view nothing can be compensation which is unjust or unreasonable because if it is not a proper equivalent then it is not compensation and anything which is unjust or unreasonable can never be regarded as an equivalent'.
This view is supported by a Full Bench decision of the Allahabad High Court- ' ' : AIR1951All674 (N)'. In -- 'Monongahela Navigation Co. v. United States', (1893) 148 U.S. 312 (V), Brewer J. delivering the opinion of the Court said with regard to the 14th Amendment:
'The noun 'compensation' standing by itself carries the idea of' an equivalent ..........so that if the adjective 'just' had been omitted and the provision was simply that the property should not be taken without compensation, the natural import of the language would be that the compensation should be equivalent of the property'.
39. I agree with the views expressed above and i hold that, 'compensation' in Article 31(2) means a just compensation, that is to say, a just equivalent in value. It is then argued that the Act or the Order does not fix a compensation or specify the principles for fixing it. It gives arbitrary power to the government to fix such compensation as it likes. In this connection, the provisions of Clause (f) of Sub-section (2) of Section 3 of the Act- and sub-para 5 of para 3 of the order, are strongly attacked. It is argued that the prices are such as might be arbitrarily fixed by Government. Such powers might be abused and the compensation might be fixed so low as not to amount to a just equivalent. Mr. Mukherjee argues that it would not be an answer to say that in the instant case, a compensation has been fixed which is just, because if a legislative enactment be wide enough to cover restrictions both within and without the limits of constitutionally permissive legislative action affecting the fundamental rights of the citizen, then so long as the possibility of its being applied for a purpose not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void. He relies on the Supreme Court decision of -- ' : 1SCR759 (B)'.
The above dicta in 'Chintaman Rao's case, (1)', must, however, not be read wholly divorced from the context. In that case, the impugned legislation empowered the Deputy Commissioner to fix the agricultural season in respect of notified villages and to totally prohibit the manufacture of Bidis therein during that period. The object of the Act was to ensure that during the agricultural season, there would not be a dearth of labour. The legislation was held to be arbitrary inasmuch as it totally prohibited all persons from engaging in the trade whether they constituted the class or not who carried out agricultural labour. It was held that the law in so far as it affected agricultural labour was also invalid because the language employed was wide enough to cover all persons whether agricultural labour or not. This principle, however, cannot apply to the facts of the present case.
The constitutionality of a law cannot be judged because a power given under it might be abused in its exercise -- ' : 1SCR519 (Q)', -- '(1942) A. C. 206 at p. 263 .(T)'. (See principles of reasonable restriction ennunciated above). Also see -- ' : AIR1952Pat220 (D)'. If an executive official abuses the power given under- a legislative enactment, or acts without good faith, it would not be an exercise of the power at all, and the Court is not powerless to control him. -- 'Westminster Corporation v. L.& N. W. By.', (1905) A. C. 426 at p. 430 (W). -- 'Vimlabai v. Emperor', AIR 1945 Nag 8, at p. 23 (X). That however does not make the law unconstitutional or valid. But it is 1 think an appropriate moment to give a warning that this Court will always stand uncompromisingly between the law and its abuse. Wide powers call for a wide degree of a circumspection on the part of those who are called upon to wield them. As soon as the remedy exceeds to evil, this Court will find a means of calling a halt to its exercise.
40. I next proceed to deal with the argument that the Act by 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 'Law1 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. The matter may be looked &.t from anotner angle. Under Section 3(1) of the Act, the Government is given wide general powers which would include the power to compulsorily acquire the paddy. Also under Sub-section (2)(c) of Section 3 of the Act, it has the power to control the price at which an essential commodity may be bought.
In exercise of the power given under Section 3(1) read with Clause (c) of Sub-section (2), the Government has controlled the price payable in respect oi the paddy bought by Government. (See Notification No. 10365 P. D., dated 22-10-1952). If a power to control prices is given under an Act, the controlled price must necessarily be read into the Act and is a sufficient fixation of compensation under Article 31(2). It will be observed that the actual fixation of price has not been done under Clause, (f) of Sub-section (2) of Section 3 of the Act, but Clause (c). I next come to the question as to whether the actual compensation fixed is unreasonably low, so as not to amount to a just' equivalent in value. The price to be paid has been fixed districtwise (save and except the Siliguri Sub Division of Darjeeling district) and there seems to be a flat rate for Aus and Boro at Rs. 7/8/- per maund, Aman other than fine at Rs. 8/2/-in West Dinajpur & at Rs.8/8/-in other places. Pine Aman at Rs. 10 to 11 according to quality. If these are not reasonable prices, so much so that they do not amount to compensation at all as mentioned in Article 31(2), the onus was upon the petitioners to establish this. (See principJes lair- down above). They should have given the cost of production in their locality, cost of production in their own lands and enumerated all the other factors that go to determine the fair price of any commodity, e.g., prevailing wages, fertility of the soil, special economic factors if any in operation, transport charges, availibity of transport, etc.
But the petitioners have chosen to give no particulars whatever. At the hearing, Mr. Mukherjee wished to rely on certain reports published in the Calcutta Gazette under the heading 'Weekly weather & Crop Report of West Bengal'. These appear to be published by Government in accordance with the provisions of Section 39, Bengal Tenancy Act, and give the market price of coarse rice in the various sub-divisions of the State. The learned Advocate General rightly objected to such use being made of a document at the hearing without any prior notice being given thereof. In the case of high prerogative writs, it is a well accepted procedure that new matters cannot be allowed to be introduced at the hearing. But quite apart from this technical objection, I do not see that matters are at all advanced by being apprised of the market price prevailing in a particular subdivision. Local market price is a thing that might depend upon various incalculable factors. The market may be in the hands of racketeers: There might be a sudden influx of goods: There might be trade competition, & so on and so forth. In any event, compensation under Article 31(2) is not necessarily the market price. The result is that I have no materials before me to hold that the prices fixed are not just or reasonable compensation.
It is argued that the inclusion of transport charges in the price makes the compensation illusory. One near the place of delivery gets more than one situated at a distance. The price does include the transport charges but there is nothing to show that after deducting such charges the prices fixed are unreasonably low. I am not told, what the distance would be to the several places of destination mentioned in the notices in Form 'C', so far as the petitioners are concerned. In villages, stocks are sold in local Hats which, cannot be equidistant from the house of all villagers. But the price does not vary because of the variation in the distance. The villagers usually bring their produce in their own bullock-carts or upon their own heads to the local market. Cost of transport would enter into the price if long distances have to be covered, but there is no material before me to show that such distances have to be covered in the case of any of the petitioners.
41. The next thing I have to consider is whether the order is outside the four corners of the Act.
42. The first point taken is that the power conferred by the Act (read with the notification) upon the State of West Bengal is only in relation, to foodstuffs and that paddy is not foodstuff. It is stated that the description of paddy as 'Rice in the husk' is a colourable attempt to avoid this difficulty. Ir -- 'The Stat