1. This is a rule issued upon the Opposite Parties to show cause why the directive dated 31-12-1052 served upon the petitioner under the West Bengal Foodgrains (Intensive Procurement) order 1952 (hereinafter referred to as the 'order'), should not be cancelled or why a writ in the nature of mandamus should not issue directing them to forbear from giving effect to the same.
2. The facts are briefly as follows: The petitioner is a private limited company incorporated under the Indian Companies Act. Amongst other things, it carried on farming. On or about 12-11-1952, a notice dated 5-11-1952 was served upon the petitioner under the said order in Form 'Ka' (equivalent to Form 'A') in the Bengali language. As this notice has been attacked, I shall deal with it more fully later on. Pursuant to this notice in Form 'Ka', the petitioner filed a declaration in Form 'Kha' (equivalent to Form 'B') on or about 13-11-1952. That is also in the Bengali language. On 12-1-1953, the petitioner was served with a directive in Form 'C' calling upon the petitioner to sell and deliver 1528 mds. 5 seers of paddy which had been determined as the 'available surplus'. The petitioner objected to delivering the paddy and has taken out this Rule on 19-1-1952. The petitioner however has not preferred an appeal as provided for by the order.
3. A preliminary objection has been taken on behalf of the opposite parties that there is no averment of any demand of justice having been made and its refusal, although the petitioners are asking for the issue of a Writ in the nature of Mandamus. This is a matter which is now well-settled and such averments have been held to be essential. In -- 'Surendra Nath v. State of West Bengal', : AIR1951Cal396 (A), it has been held that this Rule is not only applicable to applications under Section 45, Specific Relief Act, but also under Art. 226 of the Constitution. Also see -- 'Union of India v. Elbridge Watson', : 20ITR400(Cal) (B). Mr. Chatterjee has drawn my attention to p. 605, where Banerjeo, J. has referred to Halsbury's Laws of England, page 770 where it is pointed out that the principle does not apply to all possible cases and does not apply where a person through inadvertence had done or omitted to do some act which he was under a duty to do and where the time within which he should do it has passed. That principle however has no application to the present case because no time limit is fixed for demand and refusal and there is no averment that failure to demand justice was by inadvertence. This preliminary point by itself is sufficient to dispose of this application but I do not propose to decide it merely on the preliminary point but shall deal with the merits of the application.
4. The constitutional points taken in this application are covered by my decision In -- 'Atulla Kumar De v. Director of Procurement and Supply', : AIR1953Cal548 (C). Mr. Chatterjee appearing on behalf of the oetitioner has however raised several new points which I shall now proceed to deal with. The first point taken is as follows: The determination of tne available surplus under the Order is to be made by a person described as the 'Director'. In the order which operated at the time relevant to this application 'Director' was defined as follows:
'Director' means the Director of Procurement and Supply in the Department of Food, Relief and Supplies, Government of West Bengal, and includes any officer who may be authorised by the said Director to exercise all or any of the powers conferred on the Director by or under this Order.
5. Mr. Chatterjee argues that the matter is covered by a decision of this Court reported in -- 'Khagendra Natb. v. District Magistrate of West Dinajpur', : AIR1951Cal3 (D), where, dealing with the West Bengal Security Act 1950, it was held that the provisions of that Act, in so far as it entitled the Government to delegate its power to 'any officer' subordinate to it, irrespective of whether that officer was fit to make such order or not, was a procedure which was wholly unreasonable and therefore ultra vires. It was pointed out in that case that if this was a valid law, the liberty of the subject may then be taken away by the lowliest of officers. Mr. Chatterjee argues that if the 'Director' means any officer to whom power can be conferred by the Director, then the fundamental right to hold property conferred upon the citizen can also be taken away by the lowliest of officers. This argument was considered by Bose, J., in -- 'Abhimanya Adak v. State of West Bengal', : AIR1952Cal118 (E), in connection with the Bengal Pood Grains (Disposal and Acquisition) Order 1947, which is a piece of legislation analogous to the one we are considering. The learned Judge pointed out that the object and scope of the provisions of the West Bengal Security Act were quite different from those of the Bengal Food Grains Order and so the observations made in regard to the said Act were not applicable to cases arising under the Bengal Food Grains Order. In my opinion, this distinction is well-founded. The liberty of a citizen and the deprivation of it requires mature consideration and I do not think that it is possible to compare it with the deprivation of a quantity of paddy belonging to a citizen. I do not say that the particular commodity is of no value. I merely wish to say that the two matters are not comparable and do not merit the same level of consideration. The definition of a 'director' has now been amended and the officers who can act as directors have been specified. The second point relates to the notice in Form 'Ka'. The nonce in Form 'A' that had to be given under the Order at the relevant date contained the following words:
'.....is hereby directed to make a declaration, in the enclosed Form of paddy lands held or cultivated by him in any capacity and also of the total quantity of portion or share of produce received or receivable by him from such land on or before the......'
6. It is not easy to comprehend what exactly is the meaning of the word 'the total quantity of portion or share.' Does it mean the total quantity of the produce of yield of the land or is it only for eliciting the information as to whether the producer is in enjoyment of the entirety of the produce of his lands or only a portion thereof? Mr. Majumdar has drawn my attention to a decision of Lord Justice Denning where the learned Judge has said that legislation seldom attains mathematical precision. That may be so, but is ft a sufficient excuse for using language so obscure that nobody can understand it? To take away tne property of a citizen compulsorily is Dad enough, but to attempt to take it away by serving notices which no one but an expert in the interpretation of statutes can be expected to understand, is a serious thing and must be condemned by all right thinking persons. However I am glad to say that the authorities have realised it and now this Form has been suitably amended. Pondering upon the language of it, I have at last come to tne conclusion that what it does require the producer to do is to set out, not the total quantity of his yield or produce, but to state whether he receives the whole of the produce or any fractional part thereof. This interpretation finds support in the contents of the declaration in Form 'B' (which follows Form 'A',) and in which there is no heading to show the total quantity of the produce or yield of the land of the producer.
The shortcomings of the notice in Form 'A' are however magnified in the translation thereof into the vernacular. As I see it, and Mr. Majumdar has not denied it, the translation is totally wrong. Instead of stating that the producer should show the share he receives from his land, he is (in His bengali version of the notice) asked to give a declaration as to the lands in respect of which he carries on cultivation or is in enjoyment of any share in the produce. That being the position, the question arises as to whether the whole requisition has been vitiated. Mr. Majumdar has pointed out that though this mistake has crept into the translation, the notice itself directs the producer to give a declaration in the 'annexed Form' namely the Form 'Kha'. There is no mistake in the Form 'Kha' corresponding to the Form 'B'. Mr. Chatterjee tried to argue that his client was misled by this because his client might have' omitted to answer the heading 3 in the declaration in Form 'Kha' because of the peculiar frame of the directive. I could have understood this argument if his case was that his client was in receipt of a part only of the produce of any land. As it appears from the affidavits however, the petitioner company is in entire possession of whatever lands it cultivates and are no tenants or Adhiars or Bhagdars whatever. Under the circumstances I cannot see how the mistake in the translation of the directive in Form 'Ka' has misled his client and thereby vitiated the acquisition. The available surplus is calculated according to the declaration in Form 'B' or Form 'Kha'. As there is no defect in Form 'Kha' I do not see how the petitioners have been prejudiced and the procurement vitiated. As I have already pointed out, the Form 'A' has now been simplified and amended and these problems are no longer likely to arise. In the amended Form, there Is a simple direction to give a declaration in Form 'B'.
7. The next point taken is that on 23-12-1952, the specification of prices had been rescinded and therefore it was argued that on 26th December there was no price fixed. Mr. Majumdar has however produced the Notification No. 1258(1) F. D. dated 23-12-1952 by which the Government re-fixed the prices. In fact after seeing this Notification Mr. Chatterjee has not pressed this point any further. Mr. Chatterjee has also taken the point that the Director in calculating the available surplus, makes his estimation not founded on any standards laid down either in the Order or in the Essential Supplies Act, and therefore such estimation is likely to be arbitrary. It is pointed out that he has based his estimate on the report's of certain committees and therefore the estimate is not his own estimate. I have already dealt with this point in -- ' : AIR1953Cal548 (C)', and in Civil Revn. No. 293 of 1953 (Gal) (F), and I need not deal with it again. In my opinion, the Director is entitled to base his estimate on reliable data furnished by a committee of experts and specially on results of actual crop-cutting experiments. Mr. Chatterjee lastly argues that the respondents have not given his client credit for about 400 maunds of paddy of which he had taken, a loan. It is said that this matter formed the subject-matter of another rule disposed of by Bose, J., and was within knowledge ol the respondents. With regard to this it is stated in the counter affidavit that the petitioner failed to satisfy the officers about this loan. This is therefore a disputed question of fact and the petitioner ought to have preferred an appeal before the Tribunal provided for by the Order and it is not right that I should deal with this, disputed question of fact in an application under Article 226. I might mention that, the Government offered before me, to look into the matter of the loan provided the petitioner otherwise delivered the peddy according to the directive but this offer was turned down.
8. For the reasons aforesaid, I cannot grant any relief to the petitioner in this application and it must be dismissed.-
9. The Rule is discharged. Interim injunction is vacated and undertaking discharged. There will be no order for costs.
10. As the petitioner wishes to appeal againstthis order, interim injunction and the undertakingwill continue for six weeks more, after which, further stay, if necessary, must be obtained from theAppeal Court.