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PATNA HIGH COURT
N.L.Untwalia and S.Sarwar Ali JJ.
Teknarayan Mahesh Prasad
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 2043 of 1971 ; 1970 of 1971 ; 13 of 1971 ; 16 of 1971 ; 18 of 1971 ; 19 of 1971 ; 27 of 1971 ; 29 of 1971 ; 37 of 1971 ;
Decided On : FEBRUARY 15, 1971
CONSTITUTIONAL LAW - ESSENTIAL COMMODITIES ACT, 1955 - SECTION 3 - SUB-SECTION (3B) - VALIDITY - BIHAR RICE AND PADDY PROCUREMENT ORDER, 1970 - VALIDITY - ARTICLE 14, 19(1)(F) AND (G), 31(2) OF THE CONSTITUTION OF INDIA - INTERPRETATION.
Fact of the Case:
The petitioners, who are rice millers and wholesale dealers, challenged the constitutional validity of the Bihar Rice and Paddy Procurement Order, 1970 (the Procurement Order), issued under Section 3 of the Essential Commodities Act, 1955 (the Act). The petitioners contended that the Procurement Order violated Articles 14, 19(1)(f) and (g), and 31(2) of the Constitution of India.
Finding of the Court:
The Court held that: * Sub-section (3B) of Section 3 of the Act, which provides for the fixation of the procurement price, is constitutionally valid and does not violate Articles 14, 19(1)(f) or (g), or 31(2) of the Constitution. * The Procurement Order is beyond the power of the State Government under Section 3 read with Section 5 of the Act, and the fixation of the procurement price contravenes the provision of sub-section (3B). * Various clauses of the Procurement Order and the procurement price fixed therein violate Article 14, Sub-clauses (f) and (g) of Clause (1) of Article 19, and Clause (2) of Article 31 of the Constitution of India. * The Procurement Order imposes unreasonable restrictions on the right of the miller or the wholesale dealer to carry on trade or business, which cannot be justified under Clause (6) of Article 19 as putting reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1) of the said Article.
Issues: 1. Whether Sub-section (3B) of Section 3 of the Act is constitutionally valid? 2. Whether the Procurement Order is beyond the power of the State Government under Section 3 read with Section 5 of the Act? 3. Whether the various clauses of the Procurement Order and the procurement price fixed therein violate Article 14, Sub-clauses (f) and (g) of Clause (1) of Article 19, and Clause (2) of Article 31 of the Constitution of India?
Ratio Decidendi: 1. Sub-section (3B) of Section 3 of the Act is constitutionally valid as it provides for the fixation of the procurement price taking into consideration the controlled price, if any, and the post-harvest price prevailing or likely to prevail, and does not violate Articles 14, 19(1)(f) or (g), or 31(2) of the Constitution. 2. The Procurement Order is beyond the power of the State Government under Section 3 read with Section 5 of the Act, as the State Government has fixed the procurement price without regard to the controlled price and the post-harvest price, and has imposed unreasonable restrictions on the right of the miller or the wholesale dealer to carry on trade or business. 3. The various clauses of the Procurement Order and the procurement price fixed therein violate Article 14, Sub-clauses (f) and (g) of Clause (1) of Article 19, and Clause (2) of Article 31 of the Constitution of India, as they impose unreasonable restrictions on the right of the miller or the wholesale dealer to carry on trade or business, and the procurement price is not a just equivalent for the property acquired.
Final Decision: The Court allowed all the petitions and struck down the Bihar Rice and Paddy Procurement Order, 1970 as constitutionally invalid.
N.L.Untwalia, J.
1. In all these eleven writ cases is involved the question of the constitutional validity of the Bihar Rice and Paddy Procurement Order, 1970 (hereinafter called the Procurement Order) and, therefore, they have been heard together and are being disposed of by a common judgment. Counter-affidavits and affidavits in reply could not be filed in all the cases but when some of them came up before us for making an interim order of stay, it was agreed on behalf of the petitioners as also the State that the counter-affidavits and affidavits in reply filed in some would be used in all. There was no difficulty in adopting this course as there are not many questions of fact or any special fact involved in any of them.
2. On the 30th of October, 1970 the Governor of Bihar was pleased to make the Procurement Order which came into force with effect from the 1st November, 1970. The preamble states that the Governor of Bihar being of the opinion that it is necessary and expedient to make the Order for maintaining the supplies of rice and for securing its equitable distribution and availability at fair prices, has made it in exercise of the powers under Sec.3 of the Essential Commodities Act, 1955 (Central Act X of 1955), hereinafter called the Act, read with certain notifications of the Government of India, Ministry of Food, Agriculture, Community Development and Co-operation with the prior concurrence of the Central Government. In Sub-clauses (b) and (c) of Clause 2 of the Procurement Order are defined licensed wholesale dealer to mean "a person holding a valid licence as a wholesale dealer under the Bihar Foodgrains Dealers Licensing Order, 1967" and a licensed miller* to mean "the owner or other person in charge of a rice mill holding a valid licence under the Rice Milling Industry (Regulation) Act, 1958". I shall do better to quote the whole of Clause 3 of the Procurement Order with all its sub-clauses and provisos, as I shall have to often refer to them for deciding the points at issue-
"(1) Subject to the provisions of Sub-clause (3) every licensed miller shall sell to the State Government at the procurement price at his mill-premises such quantity of rice of common variety as shall be equal in weight to forty per cent of rice of all varieties produced or manufactured in his rice-mill every day beginning with the date of commencement of this order and until such time as the State Government otherwise direct: Provided that a licensed miller shall not be liable to sell rice to the State Government on the stock of rice produced on account of licensed wholesale dealer from the paddy purchased by the licensed wholesale dealer, if the licensed miller produce a certificate from the con cerned Sub-divisional Officer to the effect that the licensed "wholesale dealer has al ready sold to the State Government the quantity of rice or paddy liable to be sold by him on that stock under this order: Provided further that a licensed miller shall be liable to sell rice to the State Government on the stock of rice produced on account of the persons referred to under Sub-clause (3), only such quantity of rice of common variety as shall be equal in weight to twenty-five per cent of rice of all varieties so produced.
(2) Every licensed wholesale dealer shall deliver to the State Government at the procurement prices at his business-premises such quantity of rice of common variety as shall be equal in weight to- (a) forty per cent. of all varieties of rice produced or got milled from paddy in stock on the date- of commencement of this Order, or coming into his custody or possession after the commencement of this Order, and
(b) forty per cent, of all varieties of rice purchased by him or coming into his custody or possession for sale or disposal through him on commission basis or in any other manner every day beginning with the date of commencement of this Order and until such time as the State Government otherwise direct: Provided that
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