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1973 DIGILAW 283 (KAR)

VITHAL MANKARI v. STATE OF MYSORE

1973-10-12

K.VENKATASWAMI

body1973
( 1 ) THIS is a petition by a merchant of Bhalki, under Arts. 226 and 227 of the Constitution. He has challenged an Order of confiscation made by the deputy Commissioner, Bidar in PSB/enq/2509/68-69 dt. 13-1-1969. By that order food-grains belonging to the oetitioner were confiscated as per the provisions of S. 6a of the Essential Commodities Act, 1955. The said order was later confirmed by the Sessions Judge at Bidar, the designated authority, on appeal by the petitioner. On behalf of the petitioner two contentions were urged by the learned counsel Sri B. S. Rajkote. ( 2 ) THE first contention is that by virtue of the definition of the 'wholesale dealer' occurring in clause 2 (e) of the Mysore Food-grains (Wholesale) dealers Licensing Order 1964, and the fact that the petitioner had been described by the authority himself as 'commission Agent', the petitioner would not be liable to comply with the requirement of taking out of license provided under clause 3 of the said Rules. That being so, he was not liable to be proceeded against under S,6a of the Essential Commodities Act. I am unable to accede to this contention. ( 3 ) ALTHOUGH the petitioner has been so described in the notice issued to him by the Deputy Commissioner, in order to earn the exemption provided under the definition of 'wholesale dealer', he must be a Commission agent, who only acts on behalf of the wholesalers or producers on commission, but is not actuallv holding any stock in the conduct of his business. In the instant case, there is not much doubt that the petitioner was in possession of sufficient stock of food grains notified as Essential Commodities. When once he was in possession of such food grains, in such quantities as would bring him within the mischief of the Order of 1964, he would clearly not fall within the exception provided in the definition of 'wholesale dealer'. Once his case falls outside that exception, the explanation provided for in clause 2 (e) would be clearly attracted. The explanation is as follows :"for the purposes of this clause, any person who stores any one of the foodgrains in quantity of ten quintals or more or twenty-five quintals or moire of all the foodgrains taken together, at any time, shall unless the contrary is proved be deemed to be a wholesale dealer. The explanation is as follows :"for the purposes of this clause, any person who stores any one of the foodgrains in quantity of ten quintals or more or twenty-five quintals or moire of all the foodgrains taken together, at any time, shall unless the contrary is proved be deemed to be a wholesale dealer. " ( 4 ) BY virtue of the above explanation, it was the duty of the petitioner to have taken the burden on himself by raising an appropriate plea in that behalf, to establish that he was not a wholesale dealer coming within the purview of clause 3 of the Order. It is seen from the record that he has nowhere pleaded that he was not a wholesale dealer within the meaning of the above Licensing Order of 1964. This contention therefore, has to be rejected. The next contention is that the Licensing Order of 1984 under which he has been proceeded against, was not in force on the dates relevant for the present proceedings. The argument is that the said Licensing Order of 1964 had been made pursuant to an Order of the Central Government in gsr 888, dt. 28th June 1961. The said Central Government Order had been rescinded even cm 9-6-1966 by another Order bearing GSR 906 issued by the central Government. Hence, the argument is that once the basis for Licensing order of 1964 is knocked out that Order must be deemed to have been rescinded. The contravention in question is said to have occurred on 14-9- 1967 i. e. , long subsequent to the Order of the Central Government in GSR 906, dt. 9-6-1966. In these circumstances, the proceedings against the petitioner were clearly illegal. ( 5 ) IT is no doubt true that the notification of the Central Government which had been made the basis for the issuance of the Licensing Order of 1964 had been repealed by the later (GSR 906) dt 9-6-1966. But there is a proviso in the said Govt. Order which in effect operates as a 'savings' clause. The said proviso is sought to be interpreted on behalf of the petitioner, as referring only to certain past actions of the authorities acting under the said earlier Order of the Central Government, dt. 28-6-1961. But there is a proviso in the said Govt. Order which in effect operates as a 'savings' clause. The said proviso is sought to be interpreted on behalf of the petitioner, as referring only to certain past actions of the authorities acting under the said earlier Order of the Central Government, dt. 28-6-1961. In other words, the argument seems to imply that what is saved by the proviso is only the concluded acts of such authorities acting under that Order. I am unable to accept this interpretation as sound. ( 6 ) THE proviso in the GSR 906 dt. 9-6-1966, reads thus :"that the orders of the Government of India in the Ministry of food and Agriculture (Department of Food) specified in the Schedule below shall stand rescinded : provided that, notwithstanding such rescission, any order made by a State Government or any officer subordinate to that Government in pursuance of the orders so rescinded and in force immediately before the commencement of this order shall be deemed to have been made in pursuance of this order and under the relevant provisions of s. 3 of the said Act and shall continue in force according to its tenor, and accordingly any appointment made, licence or permit granted or direction issued under the order aforesaid and in force immediately before such commencement shall continue in force according to its tenor until and unless it is superseded by any appointment made licence or permit granted or direction issued under any other order made in pursuance of this order and under the relevant provision of section 3 of the said Act. "schedule gsr No. Date 2. 888 28-6-1961 it is clear from the proviso that any Order made by the State Government pursuant to the rescinded Order of the Central Government (GSR 888), should be deemed to have been made pursuant to the later Order of the central Government in GSR 906. The Licensing Order of 1964 is clearly made pursuant to the rescinded Order of the Central Government (GSR 888) as could be gathered from the preamble to the notification publishing it. It is, therefore, clear that even assuming that the Licensing Order would also stand rescinded by virtue of the rescission of the Central Government order GSR 888, the said Order is clearly saved by the above proviso. Hence, this contention also has no merit. It is, therefore, clear that even assuming that the Licensing Order would also stand rescinded by virtue of the rescission of the Central Government order GSR 888, the said Order is clearly saved by the above proviso. Hence, this contention also has no merit. In the result this petition fails and is accordingly dismissed. No costs. --- *** --- .