The term "engaged in the production" in S. 3 (2) (f) of the Essential Commodities Act, 1955, as amended in 1976, should be construed as "engaged in production on his own behalf and on his own account and not on any third party's account."

S.K.JHA, J.

1. All the 16 petitioners in this application under Arts. 226 and 227 of the Constitution of India are mills represented through their proprietors. They are registered licensees under the Rice Milling Industry (Regulation) Act, 1958 (hereinafter to be referred to as the Milling Regulation Act) and hold valid licences under that Act. They have challenged the legality of the notices issued to them, as contained in Annexure 1 series, by the Sub-Divisional Magistrate, Araria, respondent 1. By the impugned notices, each of the petitioners has been directed to deliver, by way of levy, 25 quintals of rice or 40 quintals of paddy at the procurement price. Each of them has further been directed to deliver the aforesaid quantity at the block godown of the State Food Corporation and has been threatened that, in the event of its failure to do so, its licence shall be cancelled and proprietor of each of such petitioners shall be liable for prosecution under the provisions of the Essential Commodities Act, 1955 (Act 10 of 1955) hereinafter to be referred to as the Act. The demand for the aforesaid levy has been purported to be made under the provisions of the Bihar Rice and Paddy Procurement Order, 1976 (hereinafter to be referred to as the 1976 Procurement Order). The petitioners pray for the issuance of appropriate writ/direction quashing Annexures 1 series and further restraining the respondents from cancelling the petitioners milling licences and/or from taking any other action against the petitioners for non-delivery of such levy.

2. The facts are not in controversy. According to the uncontroverted case of the petitioners, none of the petitioners carries on its own milling operation but they dehusk paddy on customers account for which they receive remuneration at a fixed rate of Rs. 1.80 per quintal of paddy brought to their mills by the customers. The petitioners have no stock of their own nor do they have control over the paddy of the customers which is dehusked in their mills. On this admitted position, it has to be considered as to whether the petitioners are liable for delivery of the quantity levied against them under the 1976 Procurement Order.

3. It has been contended on behalf of the petitioners that Cl. 3 of the 1976 Procurement Order made on the 15th of November, 1976 conferred power upon the authorities to create levy liability against such persons who produced rice on their own account or carried on trade or business and/or held stock belonging to themselves and that it could not be interpreted as bringing within its sweep such millers as the petitioners who were merely dehusking paddy belonging to others, especially in view of the fact that the Order does not confer any corresponding right on the petitioners to retain the rice or paddy of others brought to their mills for the purposes of dehusking. It was argued that, if, on the contrary, Cl. 3 be held to mean otherwise so as to include the cases of persons like the petitioners then to that extent it would be ultra vires the provisions of S. 3 (2) (f) of the Act. On the contrary, learned Standing Counsel IV appearing on behalf of respondents submitted that in view of the provisions of S. 3 (2) (f) of the Act, as it now stands after its amendment in 1976, the petitioners should be held liable for delivery of the levied quantity in pursuance of the provisions of Cl. 3 (c) of the 1976 Procurement Order.

4. The 1976 Procurement Order like similar Procurement Orders for the previous years has been made by the Governor of Bihar in exercise of the powers under S. 3 of the Act. It came into force with effect from the 15th of November, 1976 in respect of the Kharif year 1976-77 which has been defined to mean the agricultural year commencing on 1st Nov. 1976, and ending on 31st Oct. 1977. Cl. 2 (d) of the 1976 Procurement Order defines licensed miller as the owner or other person in charge of a rice-mill holding a valid licence under Milling Regulation Act. Cl.