JUDGMENT : Birendra Pd. Sinha, J. By Bajran Lal and seven others. The petitioners are holders of licences as wholesale dealers in food grains under the Bihar Foodgrains Dealers' Licensing ORDER :, 1967, in the names of different firms as proprietors or partners or their authorised agents. They have prayed for an appropriate writ quashing the provisions of the Bihar Rice and Paddy Procurement ORDER :, 1974. in so far as they are applicable to the wholesale dealers and also for quashing Annexure 1 series. They have also prayed that the respondents be directed to forbear from realising paddy/rice from the petitioners in pursuance of the Annexure 1 series. Annexure 1 series are the notices issued under the provisions of the Bibar Rice and Paddy Procurement ORDER :, 1974, directing the petitioners to deliver specified quantity of rice to the Government, calculated on the basis of the maximum transaction made by them, during the last five years, 2. The short facts as given in the writ application are these. The Government of Bihar purporting to act under Section 3 of the Essential Commodities Act has made an ORDER :with the object of procuring rice and paddy from the cultivators, wholesalers and rice-millers. This ORDER :is described as the Bihar Rice and Paddy Procurement ORDER :, 1974, which was published in the Bihar Gazette (Extra-ordinary) dated the 14th November 1974 (hereinafter referred to as the Procurement ORDER :). For the purposes of this (a) Big rice mill multihuller/sheller type. (b) Single huller rice-mill having- boiling and drying facilities for paddy. (0) Single huller rice-mill without having boiling and drying facilities for paddy situated within ten kilometres of any urban, municipal or notified area. (d) Single huller rice-mill without having boiling and drying facilities for paddy situated beyond ten kilo-metres of any urban, municipal of notified area. (2) Every licensed wholesale dealer shall deliver to the State Government or its agent at procurement price, for the kharif year 1974-75 at his business premises a minimum of fifty quintals and a maximum of 1,000 (one thousand) Procurement ORDER :, a licensed. whole-sale dealer means a person holding a valid licence as a wholesale dealer under the Bihar Foodgrains Dealers' Licensing ORDER :, 1967. Clause, 14 of the said Procurement ORDER :provides for levy on the rice-millers and wholesalers. whole-sale dealer means a person holding a valid licence as a wholesale dealer under the Bihar Foodgrains Dealers' Licensing ORDER :, 1967. Clause, 14 of the said Procurement ORDER :provides for levy on the rice-millers and wholesalers. In so far as relevant the Clause reads as under :- “14 Levy on rice-millers and wholesalers :- (1) Every licensed miller shall, sell to the State Government or its agent, for the. Kharif year 1974-75 at the procurement price at his mill premises, the quantity of rice noted below against the types of mill owned by him- 1,000 quintals of rice per licensed huller/sheller, Ditto One hundred quintals of rice. 25 quintals of rice.. quintals of rice as levy which shall be fixed by the Collector on the basis of the highest annual turnover of business in paddy and/or rice during the last five years, in the following manner :- Maximum transaction of rice Quantity of levy rice during last five years (1969- 70 to 1973-74) (1) Mor than 5,000 quintals 1,000 quintals. (2) 3.001 to 5,000 quintals 750 quintals. (3) 2.000 to 3,000 quintals 500 quintals. (4) From 1,751 quintals to 1,999 quintals 425 quintals. (5) From 1,501 to 1,750 quintals 350 quintals. (6) From 1,251 to 11500 quintals 275 quintals. (7) From 1,001 to 1,250 quintals 200 quintals. (8) From 751 to 1,000 quintals 125 quintals. (9) From 501 to 750 quintals 75 quintals. (10) Up to 500 quintals . 50 quintals. Note I If any dealer is dealing in paddy only or in paddy as well as rice his maximum annual turnover according to this table shall be calculated after taking one quintal of paddy as equivalent to 62.5 kilograms of rice. Note II. For determination of the quantity of levy to be realised from wholesalers; ' only' those books of accounts shall be taken into consideration as have been inspected and signed by gazetted officers of the State Government in course of their routine work in the past. If no books of account are produced the amount of levy shall be fixed at the highest in the scale, that is, 1,000 quintals. If no books of account are produced the amount of levy shall be fixed at the highest in the scale, that is, 1,000 quintals. X X X X" The' petitioners state further that from the definition Clause 2(h) as also the Schedule it would appear that there was a single rate for all parts of the State of Bihar for this procurement price irrespective of the market rate of communities and supply to the different parts of the State Sub-clause (2) of Clause 14 of the Procurement ORDER :provides that the procurement for the year 1974 has to be fixed on the basis of the highest annual turnover of business in paddy and/or rice during the last five years. Thus, the procurement is sought to be based upon not even the average nor even the expected production for the year, nor even the stock of the wholesale -dealer. According to the petitioners, there was a short-fall in the production of rice and paddy in 1974 in the district of Hazaribagh, so much so that the bare requirement of the people of that district could not be met from the production in that district unlike other parts of Bihar where the production had reached a high pitch during the recent times. The production of rice and for paddy in Hazaribagh was very low. Even the inflow of rice from the other districts had been stopped and the wholesalers were not obtaining goods from other areas which they had been doing in the past, with the result that, the turnover of business in paddy and/or rice in the current year was bound to be less than that in any other year during the last five years. The price of paddy in the' district particularly in Ramgarh area, had risen very high with the result that the wholesalers had to pay high prices for obtaining them from the market, but the procurement price remained the same' throughout the State. In those circumstances, according to the petitioners, it was clear that the Procurement ORDER :adversely affected the trade and business of the wholesalers in the district of Hazaribagh. In those circumstances, according to the petitioners, it was clear that the Procurement ORDER :adversely affected the trade and business of the wholesalers in the district of Hazaribagh. It has been further stated that unlike the case of cultivators, the wholesalers had no right to file objection or appeal and had to comply with the Procurement ORDER :without any opportunity of satisfying the authorities that the same was unreasonable or that it prejudicially affected their trade. The petitioners received notices from the Deputy Commissioner of Hazaribagh, dated the 12th December, 1974, asking them to deliver rice to Government in four instalments, viz., till the 15th of December, 1974, 20 percent, till the 31st December, 1974, 20 percent, till the 31st January, 1975, 35 percent and till the 15th February, 1975, 25 percent The date of the first instalment was subsequently extended by one month. Copies of the demand notices have been annexed and marked as annexure 1 series and, as stated earlier, the same are sought to be quashed. 3. A counter-affidavit was filed on behalf of the respondents on the 25th January, 1975, inter alia, stating that the assessment of levy in case of the wholesalers was done on a scientific and sound basis, i e., on the basis of turnover of business shown by the wholesalers themselves in their books of account. It has been stated that there could be no reasonable ground for filing any objection or appeal against the assessment made on the basis of their own books of account. The fact that the district of Hazaribagh as a whole was a deficit area has been controverted and it has been1asserted that the production of paddy was higher during the Kharif year 1973-74 than in the preceding and succeeding years and during the present year also it was not as bad as it was made out in the writ application. On this and other grounds, it is stated that the Procurement ORDER :was not invalid and the notices (annexure 1 series) should not be quashed. 4. On the 3rd February, 1975. a rejoinder to the said counter affidavit was filed on behalf of the petitioners. In the said rejoinder it is stated that the procurement price fixed by the Procurement ORDER :was arbitrary and unjustified inasmuch as it had no nexus with the market price of the commodities and was not in accordance with law. 4. On the 3rd February, 1975. a rejoinder to the said counter affidavit was filed on behalf of the petitioners. In the said rejoinder it is stated that the procurement price fixed by the Procurement ORDER :was arbitrary and unjustified inasmuch as it had no nexus with the market price of the commodities and was not in accordance with law. It is further stated that the market price of rice had been around Rs. 240/- per quintal in the district of Hazaribagh while the procurement price was only Rs. 125/- per quintal and, thus, the petitioners would have to incur loss at the rate of nearly Rs. 115/- per quintal. Due to this vast difference between the market price and the procurement price, the petitioners would have to incur a huge loss. 5. It appears that on the 3rd of March, 1975, when the case was taken up for hearing, a supplementary rejoinder to the aforesaid counter affidavit was filed on behalf of the petitioners. Apart from controverting some of the statements made in the counter-affidavit, the petitioners have raised some fresh points in their supplementary rejoinder filed on the 3rd of March. 1975. It has been stated that the cultivator pays levy on his entire agricultural produce. The Arhatdar or miller who purchases from the cultivator pays levy on the same quantity on which levy has been paid. The wholesaler who purchases from the Arhatdar or millar is required to pay levy on his business turnover. Thus, the same quantity of: rice and/or paddy is subjected to levy under the Procurement ORDER :at different stages before it reaches the consumer. By this process, the price of rice and/or paddy in the open market was bound to go up. As a result, quite a large number of wholesalers and millers have walked out of the trade particularly on account of levy. According to the petitioners, this constitutes an impairment and invasion on the petitioners' right under Article 301 as also Article 19 (1) (f) (g) of the Constitution of India. 6. Mr. B. C. Ghosh appearing on behalf of the petitioners has challenged the Procurement ORDER :on the following grounds: (I) It is an illegal interference with the petitioners' freedom of trade and is an unreasonable restriction imposed upon their right of trade and business. 6. Mr. B. C. Ghosh appearing on behalf of the petitioners has challenged the Procurement ORDER :on the following grounds: (I) It is an illegal interference with the petitioners' freedom of trade and is an unreasonable restriction imposed upon their right of trade and business. (II) It is ultra vires the provisions of the Essential Commodities Act under which it is purported to have been made. (III) The power to make such an ORDER :has not been lawfully conferred on the State Government and it contravenes Article 31 of the Constitution. 7. During the course of argument, learned Advocate General very fairly conceded that Clause 14(2) of the Procurement ORDER :was ultra vires. He, however, submitted that the Governor of Bihar by notification No. G. S. R. 19, dated the 18th February, 1975, published in the Extra-ordinary issue of the Bihar Gazette dated the 19th February. 1975 with prior concurrence of the Central G0vernment, was pleased to amend Sub-clauses (1) and (2) of Clause 14 of the Procurement ORDER :. The said amendment to Sub:c1ause (2) of Clause 14 reads thus : "Provided that every licensed wholesale dealer may in the alternative elect to deliver to the State Government or its agent at the procurement price, at his business premises, such quantity of paddy and rice as shall be equal in weight to 20 per cent of the total quantity of paddy and rice of each of the varieties held in his stock on the date of commencement of this ORDER :, arid 20 per cent of the total quantity of each of the varieties of paddy and rice purchased by him or coming into his custody or possession for sale or disposal through him on commission basis or any other manner every day beginning with the date of commencement of this ORDER :and until such time as the State Government otherwise direct. Delivery of such levy demand shall be made every day. No stocks shall be allowed to be removed from the wholesaler's business premises without delivery of levy demand pertaining to such stocks." Learned Advocate General submitted that although the amendment had been put in the form of a proviso yet it was an independent sub•c1ause fixing the liability of the whole-salers and providing a mode of realisation of the levy from them. 8. 8. It will be seen that the amendment dated the 18th February, 1975, provides for an alternative to the wholesale dealer. According to its plain reading, the licensed whole-sale dealer may choose to pay levy in accordance with the main provision contained in Clause 14(2) of the Procurement ORDER :or can exercise an option as provided in the amendment to deliver paddy or rice equal in weight to 20 percent of the total quantity held in his stock on the date -of commencement 'of the ORDER :, viz., the amendment. Learned Advocate General submitted that although the amendment is not happily drafted its intention should be gathered from the main scheme of the Procurement ORDER :and the principle of severability should be applied. He has placed reliance on various English and Indian decisions in support of his contention. In (1) The King V. The Commonwealth Court of Conciliation and Arbitration (11 Common-wealth Law .Reports 1) Griffith, C.J.Barton and O. Connor, JJ., held: "The test to be applied in determining whether the invalid part of an Act is severable is whether the Act with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by the portion which remains from the law as it would be with the omitted portions forming part of it." (per placitum) . In the same case, Isaacs, J., observed: "If good and bad provisions are included in the same word or expression the whole must fall. Where they are contained in separate words or expressions, then, if the good and the bad parts are so mutually connected with and dependent upon each other as to lead the Court, upon applying the language to the subject matter, to believe that Parliament intended them as a whole, and did not pass the good parts as independent provisions, all the provisions so connected and dependent must fall together." (per placitum) Their Lordships were dealing with the provisions in the Commonwealth Conciliation and Arbitration Act relating to the regulation of industries generally. It was held that such provisions; if invalid, were severable. It was held that such provisions; if invalid, were severable. In (2) Attorney-General for Alberta V. Attorney-General for Canada (1947 Appeal Cases 503 at page 518) it was held: "The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has some-times been put, whether on a fair review of the whole matter it can be assumed that the legislature Would have enacted what survives without enacting the part that is ultra vires at all” The Alberta Bill of Rights, 1946 (Part I) enumerated and declared certain rights of Alberta citizenship, including the right to the opportunity to engage in gainful employment, or, if that was not available, to a social security pension, and to receive the necessities of life adequate to ensure health and physical well being, educational and retirement pensions. In Part II the Act set up machinery for expressing in monetary terms the natural, economic and human wealth and resources of the Province, and for utilizing credit deposits resulting therefrom in payment of the social security pensions and other benefits specified in Part I. In Part II provision was made for the licensing by a Board of Credit Commissioners which admittedly included chartered banks, carrying on business with the Province, and for issuing to them Alberta Credit Certificate against which such institutions were to issue to customers, or create in their favour credit deposits over' and above the deposits against which a reserve of currency was held. It was held that it was not beyond the business covered by the word "ban" king" to make loans which involved an expansion of credit, and accordingly Part II of the Act, which aimed at restricting and controlling that practice, was in pith and substance legislation' relating to banking, a subject matter within the exclusive legislative competence of the Parliament. It was further held that Part I of the Act was not severable; the whole Act hung together, and Part II being ultra vires there was nothing left which would have any effective operation and the whole Act was, therefore, invalid. In (3) Attorney General for Saskatchewan V. Attorney-General for Canada (1949 Appeal Cases 110) principles laid down in (2) 1947 Appeal Cases 503 (supra) were further reiterated. In (3) Attorney General for Saskatchewan V. Attorney-General for Canada (1949 Appeal Cases 110) principles laid down in (2) 1947 Appeal Cases 503 (supra) were further reiterated. In Salmon V. Duncombe (11 Appeal Cases 627 at 634) their Lordships observed as follows: "It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftman's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. And they have set themselves to consider, first, whether any substantial doubt can be suggested as to the main object of the legislature; and, secondly, whether the last nine words of Section 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular." In (4) Seaford Court Estates Ltd. V. Asher [1949(2) King's Bench Division 481 at 498-99] Denning, L. J., observed as follows: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized A judge, believing him self to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the drafts-man. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the drafts-man. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the, statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature;" In (5) Lachmeshwar Prasad Shukul V. Keshwar Lal Chaudhuri (1940 Federal Court Reports 84) Gwyer, C. J, quoted with approval the following observations made in [(1934) 294 U. S. 600] : "We have frequently held that in exercise of our appellate jurisdiction we have power not only to correct error in the JUDGMENT : under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the JUDGMENT : was entered." In (6) A. K. Gopalan V. State of Madras (A.I.R. 1950 Supreme Court 27) their Lordships held that the Preventive Detention Act, 1950 was intra vires the Constitution with the exception of Section 14, which was illegal and ultra vires. Invalidity of Section 14 did not effect the rest of the provisions of the Act. Thus, although one of the provisions was found to be ultra vires, the same did not affect the whole Act. In (7) R. M. D. Chamarbaugwalla V. Union of India (A.I.R. 1957 Supreme Court 628 at 636), Venkatarama Ayyar, J., summarising the rules of construction laid down by the American Courts where the question of severability had been the subject of consideration in numerous authorities, observed as follows: “1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of statute was invalid. Vide Corpus Juris Secundum, Vol- 82. p. 156; Sutherland on Statutory Construction, Vol. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of statute was invalid. Vide Corpus Juris Secundum, Vol- 82. p. 156; Sutherland on Statutory Construction, Vol. 2 pp. t 76-177. 2. If the valid and invalid provisions' are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct 'and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become uneforceable. Vide Cooley's 'Constitutional Limitations, Vol. I at pp. 360-361; Crawford on Statutory Construction, pp. 217-218. 3. Even when the provisions which are valid are distinct and separate from those 'which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219. 4. Likewise, when the valid and invalid parts of a statute are independent and do not from part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the la w is enacted in the same section or different section; (Vide Cooley's Constitutional Limitations; Vol. I pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion is expugned from the, statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol 2. p.194. 7. 6. If after the invalid portion is expugned from the, statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol 2. p.194. 7. In determining the legislative intent on the question of separability, it will be' legitimate to take into account the history of the legislation, its object. the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178." 9. In the light of the above discussions now' it is necessary to see as to whether the amendment to Clause 14(2) is valid or invalid; and if Clause 14(2), as it originally stood, is ultra vires, as has been conceded by the learned Advocate General, the amendment also must go along with the main provision contained in Clause 14(2) of the Procurement ORDER :. In this connection, it is relevant to find out the dominant object for which the Essential Commodities Act, 1955, was enacted. The objective of the Act is to safeguard the interests of the consuming public against mal-practices by the suppliers and distributors. The Act provides, in the interest of the general public, for the control of the production, supply and distribution and trade and commerce in certain commodities. The Procurement ORDER :states that whereas the Governor of Bihar was of the opinion that it was necessary and expedient so to do for maintaining the supplies of rice and for securing its equitable distribution and availability at fair price, he was pleased to make the said ORDER :. The 1974 Procurement ORDER :provided for a levy of paddy equal in weight to 40 percent of all paddy received by the licensed miller and wholesaler or in stock after the commencement of the said ORDER :and remaining uncoverted into rice. The 1974 Procurement ORDER :provided for a levy of paddy equal in weight to 40 percent of all paddy received by the licensed miller and wholesaler or in stock after the commencement of the said ORDER :and remaining uncoverted into rice. The Rice and Paddy Procurement ORDER :, 1972, which came into 'force on the 5th December, 1972, provided for levy of 40 percent of total quantity of paddy or rice in I each of the varieties held in stock on the date of the commencement of the ORDER :and 40 percent of the total quantity of each of the varieties of paddy or rice purchased by him or coming into his custody for sale or disposal through him beginning with the date of commencement of the said ORDER :and until “such time the State Government otherwise directs. The Bihar Rice and Paddy Procurement ORDER :, 1973, which came into force on the 15th February, 1973, provided for 50 percent of the total quantity held in stock on the date of the commencement of ORDER :and 50 percent of the total quantity of each of the varieties of paddy and rice purchased by him or coming into his custody beginning with the commencement of the said ORDER :. It further provided for compounding the quantum of levy by entering into an agreement. It appears that the 1974 Procurement ORDER :fixed the levy on the basis of the highest annual turnover of paddy and rice during the last five years. This obviously was a wrong basis fixed by the Procurement ORDER :and has been rightly accepted to be so by the learned Advocate General. But having realised so, the State Government purported to make an alternative mode, i. e., levy on percentage basis, which mod€ is much in keeping with the past Procurement ORDER :s. The mere fact that the amendment has been sought to be introduced in the shape of a proviso as an alternative mode of levy, should not and cannot make" it invalid. The draftsman may be guilty of this or that ambiguily. but a Court must find out the intention of the legislature and this cannot be done only from the language of the statute but also from the situation of social events which gave rise to the introduction of such an ORDER :. The draftsman may be guilty of this or that ambiguily. but a Court must find out the intention of the legislature and this cannot be done only from the language of the statute but also from the situation of social events which gave rise to the introduction of such an ORDER :. It must also be kept in mind that the amendment was brought into remedy a mischief. When the main object of the statute is clear, by declaring the amendment also as ultra vires, the object itself would be reduced to nullity only on account of the draftsman's unskilfulness or ignorance of law. The two alter, native modes provided in the main clause 14(2) and the amendment are quite separable and they are not so interwoven that if one is taken out, the other remaining will destroy the intention behind the Procurement ORDER :. 10. Giving my full and anxious consideration to the facts and circumstances of this case, I am in agreement with the submissions made by the learned Advocate General that even though the main clause 14(2) is ultra vires, the amendment dated the 19th February 1975, must be held to be a good law. 11. This amendment came up for consideration in C. W. J. C. No. 8 of 1975 before Nagendra Prasad Singh and S. Ali Ahmad, JJ., who by their JUDGMENT : dated the 3rd March, 1975, were pleased to hold that the amended provision was an independent sub-clause fixing liability on the wholesalers and providing a mode of realisation of levy from t hem. It was further held that it came into force from the date of publication in the gazette and it could not be held to have any retrospective effect. It was further held that under the amended provision the whole-salers had to deliver such quantity of paddy and rice as shall be equal in weight to 20 percent 'of the total quantity of paddy and rice of each variety held in their stock on the date of the commencement of this amended ORDER :. They had also to deliver 20 percent of the quantity of each of the varieties of paddy and rice purchased by them or coming into their possession basis or in any other manner, every day beginning with the commencement of this ORDER :. 12. They had also to deliver 20 percent of the quantity of each of the varieties of paddy and rice purchased by them or coming into their possession basis or in any other manner, every day beginning with the commencement of this ORDER :. 12. In view of the concession offered by the learned Advocate General, Clause 14(2) of the Procurement ORDER :, in so far as it is applicable to the wholesale dealers, must be struck down. The demand notices (annexure 1 series) directing the petitioners to deliver the required quantity of rice must also be quashed. Accordingly the said demand notices contained in annexure 1 series are hereby quashed. 13. Now, I shall take up the other points raised by Mr. Ghosh. As stated earlier, a supplementary rejoinder to the counter affidavit was filed on the day the bearing of this case started. In this supplementary rejoinder. it was for the first time that the petitioners challenged the entire Procurement ORDER :and during the course of his argument Mr. Ghosh has concentrated much around this point. It will be relevant to state here that in the original writ application only the provisions of the Procurement ORDER :in so far as they were applicable to the wholesale dealers were challenged and it was prayed that the demand notices (annexure 1 series) should be quashed. The original application or the prayer made therein was not amended. In (8) Shivdev Singh v. The State of Bihar (A. J. R. 1963 Patna 201) it was held- "No new ground of attack on the whole scheme can be made, merely mentioning a new fact in the supplementary affidavit without an amendment of the original application"; but since arguments were advanced at great length by Mr. Ghosh in support of his contention that the entire Procurement ORDER :was illegal and ultra vires the Essential Commodities Act, I propose to deal with some of them. 14. Mr. Ghosh in support of his contention that the entire Procurement ORDER :was illegal and ultra vires the Essential Commodities Act, I propose to deal with some of them. 14. Mr. Ghosh bas argued that the Procurement ORDER :is ultra vires the Essential Commodities Act : (i) because it does not conform to Section 3 (2) (a), Section 3 (3) (b) and Section 3 (3-B) (ii); (ii) because it interferes with the freedom of trade and is an unreasonable restriction imposed thereupon; (iii) because the power to make such an ORDER :of levy has not been lawfully conferred on the State Government by the Parliament and as such it is without any authority of law and contravenes Article 31 of the Constitution. 15. As regards the fixation of price in Schedule V of the Procurement ORDER :, Mr. Ghosh has argued that the same is arbitrary and the price fixed in Schedule V has not been fixed in accordance with the provisions contained in the Essential Commodities Act. According to Mr. Ghosh, without making an ORDER :as required by the provisions of the Essential Commodities Act. it has been stated in Schedule V that the "prices shall be deemed to be controlled prices for the purposes of this ORDER :". The 1973 Procurement ORDER :was also sought to be challenged on the ground that the procurement price fixed in the said ORDER :was arbitrary and, therefore, the whole ORDER :must be struck down. In (9) C W. J. C. Nos 167, 307 and 332 of 1974 (Shri Bishwanathji Mills, Buxar, V. The Secretary, Supply and Price-Control Department, Government of Bihar), which were decided by a Bench of this Court on the 30th of September, 1974, it was held that the entire ORDER :would not be ultra vires even if the prices fixed in the said Procurement ORDER :were arbitrary. In that event the prices had to be struck down and not the entire ORDER :. As the law stands after the Essential Commodities (Amendment) Ordinance, 1974 (No. II of 1974), in Sub-section (3-B) of Section 3, it gives a wider power to the State Government in fixing the procurement price. The State is empowered to take factors other than the price prevailing on the date of the procurement or likely to prevail during the post-harvest period into consideration in fixing the procurement price. The State is empowered to take factors other than the price prevailing on the date of the procurement or likely to prevail during the post-harvest period into consideration in fixing the procurement price. During the period, the words, "having regard to" were not there in Sub-section (3-B) and after the amending Act 66 of 1971 the State could not take into consideration anything other than the price prevailing on the date of the procurement or likely to prevail during the post-harvest period in the matter of fixation of the procurement price. Be that as it may, since the argument is that the entire Procurement ORDER :is bad on account of the procurement price as fixed in Schedule V, it is not necessary to go into the question as to whether the price as fixed is arbitrary or otherwise. Even after the above mentioned 1974 Ordinance or the insertion of the words "that the above prices shall be deemed to be controlled prices for the purpose of this ORDER :" in Schedule V, it would be sufficient to say that the whole Procurement ORDER :cannot be struck down on this ground and I have no reason to depart from the same view taken by a Bench of this Court in C. W. J. C. No. 167 of 1974. 16. Mr. Ghosh has further argued that Section 3 of the Act talks of "stock" whereas Clause 14(2) of the Procurement ORDER :says "highest annual turnover of business". According to him, the word "stock" must be given its dictionary meaning. He has submitted that unless the foodgrains are stocked in the Arhat of the wholesaler and come in his possession, there will be no stock. The stock cannot be equated with the turnover of business. The wholesaler may purchase foodgrains, ard without bringing them into his Arhat, sell the same to his customers. This argument has been advanced only to be rejected. In the business world, between the period of purchase and sale, the articles come in stock and are entered into the stock register. Mr. Ghosh has submitted that if the levy is on "stock" then Article 31 of the Constitution would apply because it will be "property" but if levy is on turnover of business, Article 19 (1) (g) and Article 301 would apply. Mr. Ghosh has submitted that if the levy is on "stock" then Article 31 of the Constitution would apply because it will be "property" but if levy is on turnover of business, Article 19 (1) (g) and Article 301 would apply. According to Article 19(6) of the Constitution reasonable restriction can be imposed in public interest and compensation will not be enough. According to him, if it is a restriction on business transaction then it is neither reasonable nor for general purpose. On the other hand, the learned Advocate General has submitted that in view of the emergency and suspension of Article 19(1)(g), the Procurement ORDER :cannot be challenged on that ground. Realising this difficulty, Mr. Ghosh has Submitted that he would then challenge the emergency itself. He however, cannot be allowed to do so inasmuch as it is a political and not justiciable issue. It has been observed in (to) Rhut Nath Mate V. The State of West Bengal (A.I.R. 1974 Supreme Court 806) as under: "We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the para-political sector. It was argued that there was no real emergency and yet the Proclamation remain unretracted with consequential peril to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls and not to the courts." 17. As regards the argument of Mr. Ghosh that the Procurement ORDER :is not in public interest as required by Article 302 of the Constitution, suffice it to say that the same is also devoid of any substance and must be rejected. 18. Mr. Ghosh has attacked the validity of the entire Procurement ORDER :also on the ground that the levy is at several stages on the same paddy and rice. There is no. substance in this argument as well. 19. In the end, Mr. Ghosh has submitted that' the present ORDER :had been made by the State Government and not by the legislature. According to him, the Procurement ORDER :under Section 3(2)(f) can be made by the Central Government. There can be a delegation under Section 5(b) to any State Government by a notification or ORDER :. 19. In the end, Mr. Ghosh has submitted that' the present ORDER :had been made by the State Government and not by the legislature. According to him, the Procurement ORDER :under Section 3(2)(f) can be made by the Central Government. There can be a delegation under Section 5(b) to any State Government by a notification or ORDER :. According to him, this ORDER :does not speak of any delegation under Section 5(b) of the Act and has been made only in exercise of the powers under Section 3 of the Act by the Governor of Bihar. According to him, the Governor cannot act in terms of Section 3 on his own, nor does Section 5 by itself authorise the Governor to make an ORDER :under Section 3 of the Act on his own satisfaction. He submitted that the Procurement ORDER :was a legislation under Section 3 and must be laid before the Par1iament under Section 3-C(6) of the Act. Reliance has been placed on (11) Harakhchand Ratanchand Banthia V. Union of India (A.I.R. 1970 Supreme Court 1453). I must say that this case has no application to the facts of the present case. Reference may be made in this connection to a Full Bench decision of the Kerala High Court in (12) Thy State of Kerala V. Annam (A I. R. 1969 Kerala 38) wherein it was held that Sub-section (6) of Section 3 of the Essential Commodities Act does not make the laying before the Parliament a condition precedent to the validity of the ORDER :made under the Act, nor does it annul the ORDER :if it is not laid before the Parliament within a specified time Moreover, it would appear from the Procurement ORDER :itself that the same had been made .with prior concurrence of the Central Government. Therefore, this argument of Mr. Ghosh also has to be rejected. 20. In view of my findings above, this application is al10wed and the demand notices (Annexure 1 series) are quashed and Clause 14(2) of the Procurement ORDER :as it originally stood is declared ultra vires. The respondents are directed to proceed in accordance with law. Therefore, this argument of Mr. Ghosh also has to be rejected. 20. In view of my findings above, this application is al10wed and the demand notices (Annexure 1 series) are quashed and Clause 14(2) of the Procurement ORDER :as it originally stood is declared ultra vires. The respondents are directed to proceed in accordance with law. It will be open to them to realise from the petitioners paddy or rice, as the case may be, in accordance with the amendment, dated the 18th February, 1975, to Clause 14 of the Procurement ORDER :from the date the amended provision came into force. In the circumstances of this case, there will be no ORDER :as to costs. I have had the advantage of reading the JUDGMENT : prepared by my learned Brother. B D. Singh, J. I agree with the view expressed by him as well as the conclusion arrived at. I, however, wish to add some more grounds as to why the amendment of Clause 14(2) of the Bihar Rice and Paddy Procurement ORDER :, 1974, act published under Notification No. G.S.R. 19, dated the 19th February, 1975, is held as valid. My learned Brother has already extracted the said amendment in his JUDGMENT :. Mr. B. C. Ghosh, learned counsel appearing on behalf of the petitioners, contended that once it was held that Clause 14(2), as, it stood prior to February 19, 1975, is ultra vires, the said amendment has also got to be held as ultra vires, as the amendment cannot have separate existence, being interwoven and dependent upon Clause 14(2) as it stood prior to the amendment. This part of the submission of learned counsel has already been dealt with elaborately by my learned Brother and he has already given good reasons for holding that the amendment being separable can survive. Mr. Ghosh further urged that the amendment introduces an option clause. He drew our attention to the relevant portion of the amendment which reads "provided that every licensed wholesale dealer may in the alternative elect to deliver to the State Government or its agent at the procurement price, at his business premises, such quantity of paddy and rice as shall be equal in weight to 20 percent of the total quantity of paddy and rice of each of the varieties held in his stock on the date of commencement of this ORDER :.... ". ". He emphasised that by the amendment prior provision contained in Clause 14(2) has not been deleted. By the amendment a proviso has been added after Sub-clause (2) of Clause 14, whereby a dealer has been given an option to make a choice as to whether he would prefer to deliver the quantity of paddy and rice in accordance with Sub-clause (2) as it stood prior to amendment or according to the amended provision of the said Sub-clause (2). He submitted, therefore, that the optional provision contained in the amended Sub-clause (2) could not be scored through by the Court; nor the amended provision had a separate existence. It, therefore, could not be held as valid. According to him that would not• be merely writing down but re-writing the clause and the Court would have to usurp the function of the legislature. Besides, that would change the intention of the ORDER :. 2. In ORDER :to appreciate the point involved in this regard, it would be necessary to state the circumstances under which the said amendment to Clause 14 was brought into existence. At the time when the amendment was introduced, it was not held that Sub-clause (2) of Clause 14, as it stood prior to the amendment, was ultra vires. It was only for the first time that the same was held to be ultra vires by this Court in C. W. J. C. No.8 of 1975, by Nagendra Prasad Singh and S. Ali Ahmad, JJ., in their JUDGMENT : dated the 3rd March, 1975. The same was being challenged by the dealers chiefly on the ground that the provision was harsh and unreasonable. It would be convenient to recall the relevant portion of the said Sub-clause (2) as it stood prior to the amendment: "Every licensed wholesale dealer shall deliver to the State Government or its agent at procurement price, for the kharif year 1974-75, at his business premises, a minimum of fifty quintals and a maximum of 1000 (one thousand) quintals of rice as levy -which shall be fixed by the Collector on the basis of the highest annual turnover of business in paddy and/or rice during the last five years. . ....." In ORDER :to minimise the rigor, an option clause, as mentioned above, was introduced by the amendment. . ....." In ORDER :to minimise the rigor, an option clause, as mentioned above, was introduced by the amendment. After it has been held that Sub-clause (2) of Clause 14 was ultra vires also because of the concession made by the Advocate General, it bas to be seen as to whether the amended provision can be held as good, ignoring the option clause, in the circumstances mentioned above. It is well settled that in any Act, one provision may be held as ultra vires and the other provision may be held as intra vires, provided both the provisions can separately exist. 3. Whether we can ignore the option is the moot question to be dealt with. Mr. Ghosh reiterated that that would not merely be writing down but re-writing the clause, which was beyond the purview of the Court of law. In my opinion, that would depend upon the facts and circumstances of each case. Reference may be made to the Statutory Construction by Crawford (1940 edition-pp. 295-296). The relevant passage reads thus: "Naturally, the danger attendant upon the application of the rule which permits the spirit and reason to control, arises from a probable invasion of the legislative field or function. But a proper application of the rule does not substitute the will of the court' for that of the legislature. Frequently, words of general meaning are used in a statute, words broad enough to include the act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislature intended to include the particular act. Similarly, words may be narrow enough to exclude a certain act, yet were used by the lawmakers with the intent to include the act. Unless this latent legislative intent is made effective through use of the principle that a statute should be construed according' to its spirit and reason, or some similar principle. there is far more danger that the intent of the legislature will thereby the defeated, than it is through the application of the rule by a court fully cognizant of the limitations of its powers." The same author in the same book at pp. 346-347 writes: ".. there is far more danger that the intent of the legislature will thereby the defeated, than it is through the application of the rule by a court fully cognizant of the limitations of its powers." The same author in the same book at pp. 346-347 writes: ".. So, too, words appearing in a statute may be omitted or eliminated if no sensible meaning can be given to them, or no meaning consonant with the legislative intent as it appears or can be gathered from the entire statute, or if they have been inserted through inadvertence. Similarly an unnecessary clause may be deleted." In the instant case, it bas also become necessary for us to ignore the option clause, because the same bas become redundant as mentioned above. This Court has already held that Sub-clause (2) of Clause 14, prior to the amendment, was ultra vires, and in the eyes of law the same is completely wiped off and the rigor is completely removed. Therefore, now, there is no necessity for retaining the option clause. After deleting the said provision .of option clause, if the amended proviso is otherwise good, there is no reason to hold the same as ultra vires. This Court while considering the earlier such ORDER :on the basis of the procurement on percentage basis has observed that the Procurement ORDER :on percentage basis may be held to be good. Reference may be made to (13) Messrs Taknarayan Mahesh Prasad and others V. The State of Bihar and others (1971 P. L. J. R. 223) where Untwalia, J. (now Judge of the Supreme Court) delivering the JUDGMENT : for the Court observed in paragraph 13 at pages 233-234 as follows : "... To me the provisions in the Madhya Pradesh Rice Procurement (Levy) ORDER :, 1970 and West Bengal Rice Mills (Control and Levy) ORDER :, 1970, are understandable where the provision is for procurement of certain percentage of rice of all varieties on fixing the procurement price of all varieties. I think the Government would have been well advised either to procure by levy certain percentage of common variety of rice only on the stock of rice of - common variety dealt with by the miller or the wholesale dealer or certain percentage of an varieties of rice according to the stock dealt with by him....” . I think the Government would have been well advised either to procure by levy certain percentage of common variety of rice only on the stock of rice of - common variety dealt with by the miller or the wholesale dealer or certain percentage of an varieties of rice according to the stock dealt with by him....” . In the same volume, in the case of Shivashankar Dokania and others (Page 529) at page 533 similar observation was made by Salwar Ali, J., who delivered the JUDGMENT : for the court. 4. Therefore, there is no merit in the contentions of Mr. Ghosh regarding the invalidity of the amended c1ause 14 aforesaid. Application allowed.