Srikrishna Das v. State Of Bihar — 1975 DIGILAW 60 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. The petittoners in this writ petition are licenced wholesale dealers in foodgrains under the Bihar Foodgrains Dealers Licensing Order, 1967 (hereinafter referred to as the Licensing Order). The details of their licences are mentioned in paragraph 1 of the writ petition. In this writ petition they have made a prayer for quashing of the different notices issued to them in exercise of the powers conferred by the Bihar Rice and paddy Procurement Order, 1974 (hereinafter referred to as the Procurement Order) for delivery of rice or paddy as the Procurement price to the State Government or its agent for the kharif year 1974-75, as required by Clause 14 (2) of the Procurement Order. Copies of the said notices are Annexure "1" series. The notices have been issued saying that the petitioner have to deliver levy on the basis of the transactions entered into by them during the last five years. The petitioners have challenged the vires of Clause14 (2) of the Procurement Order, saying that it is arbitrary and unreasonable. 2. Clause 14(2) of the Procurement Order, which is relevant for the present case, reads thus :- "(2) Every licesnsed 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) quintals of rice as levy which shall be fixed 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 during last five years (1969-70 to 1973-74). Quantity of levy rice. (1) More than 5,000 quintals 1,000 quintals (2) 3,001 to 5,000 quintals 700 quintals (3) 2,000 to 3,00 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 1,500 quintals 275 quintals (7) From 1,001 to 1,250 200 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. 3. During the pendency of the writ application, the Governor of Bihar, by notification No. G. S. R. 1, dated the 19th February, 1975, published in an extraordinary issue of the Bihar Gazette, dated the 19th February, 1975, with the prior concurrence of the Central Government, was pleased to amend sub-clauses (1) and (2) of Clause 14 of the Procurement Order. The amendment to sub-clause (2) of Clause 14. which is relevant for the present purpose, 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, and 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 directs. Delivery of such levy demand shall be made every day. No stocks shall be allowed to be removed from the wholesalers business premises without delivery of levy demand pertaining to such stocks." 4. During the course of arguments, learned Advocate-General had to concede that sub-clause (2) of Clause 14 of the Procurement Order was ultra vires; but it was submitted that in view of an alternative mode having been prescribed by the amendment for delivery of paddy and rice the petitioners are liable to deliver paddy and/or rice according to the rate prescribed in the amended provision. Learned Advocate-General has further submitted that, although the amendment has been put in the form of a proviso, yet, for all practical purposes, it is an independent sub-Clause fixing the liability on the wholesalers and providing a mode of realisation of the levy from them. In my opinion, there is substance in the contention raised by the learned Advocate-General. Now, under the amended provision, the petitioners have to deliver to the State Government or its agent, at the procurement price, at their 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 their stock on the date of commencement of this order. They have also to deliver 20 per cent, of the total quantity of each of the varieties of paddy and rice purchased by them or coming into their custody or possession for sale or disposal through them 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 directs. Learned counsel for the petitioners did not challenge the liability of the petitioners in accordance with the amended provision, if it is found that they had in their stock paddy or rice on the date of the commencement of the Procurement Order, or they have entered into transactions in paddy and/or rice on any day after the coming into force of the amended Procurement Order. According to the petitioners, they are not carrying on any business in paddy and rice since the 14th November, 1974, when the Procurement Order came into force. In this connection a question arose as to since which date the amended Procurement Order will be deemed to have come into force. Learned Advocate-General contended that the newly added proviso to sub-clause (2) of Clause 14 should be deemed to have come into force on and from the 14th November, 1974, and in any case the amendment only quantified the liability of the petitioners concerned for the kharif year 1974-75, even if it be held that the amendment came into force on and from the 19th February, 1975. This quantification can be done even at the end of the kharif year on the basis of the total transactions entered into by the petitioners from the 14th Nov., 1974 till the expiry of the kharif year itself. In my opinion, it is difficult to accept this submission made on behalf of the State. There is nothing to show in the amended provision that it was to come into force retrospectively from a date earlier than that when it was published in the Gazette. Apart from that, I find that there are positive indications in the amended provision that it is to come into force from the date when it was published in the Gazette. The expression "on the date of commencement of this order" has been mentioned twice in the amended provision-once in context of the delivery of the levy on the existing stock, and again in connection with the liability of delivery of paddy and rice coming into the possession or custody of the petitioners every day. It is well settled that any amendment cannot be held to have retrospective effect unless the legislature or the authority concerned expresses its intention in clear terms. As such, I hold that the amended provision will be deemed to have come into force on and from the 19th February, 1975, when it was published in the Gazette. There is no question of quantification of the liability of the petitioners in respect of the levy at the end of the Kharif year, because under the amended clause, the delivery of such levy is to be made every day. 5. In support of the contention that the petitioners are not liable to deliver any paddy and/or rice to the respondent State or to any of its authorities under the Procurement Order, because they are not carrying on any business in paddy and/or rice, learned counsel appearing for the petitioners has referred to paragraph 12 of the writ petition wherein it is stated that the petitioners are doing no business of rice or paddy in this season, that is, from November, 1974. In paragraph 4 of the counter-affidavit filed on behalf of the respondents the said averment has been challenged. Mr. In paragraph 4 of the counter-affidavit filed on behalf of the respondents the said averment has been challenged. Mr. Ghose, appearing for the petitioners, has pointed out that from paragraph 4 of the counter-affidavit it would appear that there is no statement that the petitioners had done any business in December, 1974 or in January, 1975, and in this connection he has also drawn our attention to the rejoinder filed on behalf of the petitioners. In my opinion, it is difficult to decide this disputed question of fact on the basis of such statements and to find out as to whether the petitioners or anyone of them had done any business in rice and/or paddy during this period. Apart from that, there is no bar on the petitioners carrying on business in paddy and/or rice on any day so long as they hold the licence under the Licensing Order. In that view of the matter, this question is to be examined by the local authorities as to whether the petitioners are carrying on any business in paddy and/or rice. If it is found that the petitioners or anyone of them is carrying on business in paddy and/or rice after the 19th February, 1975, it will be open to the respondents to realise from the petitioners/petitioner concerned paddy and/or rice, as the case may be, in accordance with amended sub-cl. (2) of Clause 14 of the Procurement Order. 6. In the result, the application is allowed and the notices of demand (Annexures "1" series) are quashed, and the respondents are directed to proceed in accordance with law and in the light of the observations made above. In the circumstances there will be no order as to costs. S.ALI AHMAD, J. 7 I agree.