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1978 DIGILAW 486 (CAL)

Tarakdas Mukherjee v. State of West Bengal

1978-07-26

G.N.RAY

body1978
JUDGMENT 1. In the instant writ petition the Levy Order dated 19th January, 1978 passed by the Requiring Authority being the Progress Assistant, Khanda Ghosh Block directing the petitioner to deliver 141 quintals 14 kgs. paddy to the Procurement Agent named in the said order is under challenged. 2. The petitioner's contention is that he owns 20.42 acres of agricultural lands some of which are in the irrigated area and the rest are in, the non-irrigated area. The petitioner's wife owns 8.43 acres and part of the said lands are in the irrigated area and the rest are in the non irrigated area. The petitioner also contends that the petitioner is also shebait of Sri Sri Goral Jew Thakur and the total area of the lands belonging to the said deity is 26.10 acres and the said lands were also situated partly in the irrigated and partly in the non-irrigated area. A provisional levy roll was published in Khanda Ghosh Anchal for the previous year wherein the petitioner's liability for levy was shown as 141 quintals. The petitioner made representation against the said levy roll. The matter was investigated and it was found that 14.76 acres were sandy lands where no paddy was grown and 38 acres were cultivated by bargadars. The petitioner states that it was found both by the requiring Authority and the Appellate Authority in the said year that with great difficulty the petitioner delivered 100 quintals of paddy by purchasing the same from the market and the petitioner did not receive any paddy from his bargadars. The petitioner contends that the same situation continues for this year also and no bargadar was evicted by the petitioner. In spite of such facts, the petitioner was again directed to deliver 141 quintals of paddy by the said impugned order. The petitioner contends that the said order was passed without determining the actual stock of paddy held by the petitioner and such assessment of levy was made on the basis of total area of land held by the petitioner without any reference as to the total yield received from the said lands by the petitioner. The petitioner challenges the vires of the West Bengal Foodgrains Procurement (Levy) Order 1977 promulgated by the State Government under the delegated power of the Central Government under the Essential Commodities Act, 1955. The petitioner challenges the vires of the West Bengal Foodgrains Procurement (Levy) Order 1977 promulgated by the State Government under the delegated power of the Central Government under the Essential Commodities Act, 1955. The petitioner contends that there has been delegation of power under S. 3(2)(f) of the Essential Commodities Act by the Central Government to the State Government and excepting the said power under S. 3(2)(f) no other power has been delegated to the State Government. 3. Mr. Mallick the learned Counsel appearing for the petitioner contended that under the Essential Commodities Act, food crop is an essential commodity but the land has not been included as an essential commodity. Mr. Mallick contended that the impugned order of levy was absolutely illegal and without jurisdiction because such order was passed without any reference to the actual stock of foodgrains held by the petitioner. Mr. Mallick also contended that the West Bengal Foodgrains Procurement (Levy) Order 1977 is ultra vires the Essential Commodities Act inasmuch as the provision for assessment of levy is based on the quantum of different types of land held by a person but not on the basis of actual stock held by such person. Mr. Mallick in this connection referred to a decision of the Orissa High Court made in the case of Bijoy Kumar Routrai & ors. v, State of Orissa & ors reported in AIR 1976 Orissa 138. The Division Bench of the Orissa High Court look into consideration of the provisions of Orissa Paddy Procurement (Levy) Order. 1974. It was held in the said decision that the basic provision in the Orissa Paddy Procurement (Levy) Order, 1974 imposing a levy on the basis of 'land holding' is not in conformity with S. 3(2)(f) of the Essential Commodities Act under' which the demand of levy is relatable to holding in stock. Consequently direction for sale as provided by the said order can only be in relation to the stock in the hands of the landholder and he cannot be subjected to a direction for sale of a quantity of paddy calculated on the basis of the acreage of land subjected to paddy cultivation. Consequently direction for sale as provided by the said order can only be in relation to the stock in the hands of the landholder and he cannot be subjected to a direction for sale of a quantity of paddy calculated on the basis of the acreage of land subjected to paddy cultivation. It was further held that the impugned provision of the Levy Order cannot be justified on the ground that the power to make the order is vested in the Central Government under sub-s. (1) of S.3 and, therefore, the order is not in pursuance of power under sub-s. (2). This is so because the State Government is a delegated authority and its powers are those that are delegated to it by the Central Government under S.5 of the Act. Referring to the aforesaid decision of the Orissa High Court, Mr. Mallick contended that the West Bengal Foodgrains Procurement (Levy) Order is also land-oriented and not stock-oriented. Accordingly the said West Bengal Levy Order is also illegal and void and was promulgated without any proper authority on the part of the State Government under the delegated powers from the Central Government. 4. Mr. Mrinmoy Bagchi the learned Counsel appearing for the respondents however contended that the West Bengal Paddy Procurement (Levy) Order, 1977 is not similar to the Orissa Paddy Procurement (Levy) Order, 1974 and as such the decision made by the Orissa High Court has no manner of application to the West Bengal Levy Order. Mr. Bagchi further contended that the West Bengal Levy Order is not land-oriented but it is essentially stock-oriented. There is however reference of the land holding for the purpose of calculating the probable stock by the person concerned. Mr. Bagchi also referred to a Full Bench decision made in the case of The State Kerala & ors. Vs. Annum & ors. reported in AIR 1969 Kerala page 38. In the said decision, the Kerala Rice and Paddy (Procurement by Levy) Order (1967) was challenged. It was held by the Full Bench of the Kerala High Court in the said decision that a law designed to meet famine conditions cannot afford to be so liberal. Its provisions must be capable of drastic application to meet all situations. In the said decision, the Kerala Rice and Paddy (Procurement by Levy) Order (1967) was challenged. It was held by the Full Bench of the Kerala High Court in the said decision that a law designed to meet famine conditions cannot afford to be so liberal. Its provisions must be capable of drastic application to meet all situations. The expression "any person holding in stock any essential commodity" must, in the context, comprehend all persons having possession of any appreciable quantity of the commodity and the expansion 'Stock' in S. 3(2)(f) of the Essential Commodities Act appears to mean a collection or store. When a crop of paddy is harvested, thrashed and the harvesting workers' charges are paid what the' cultivator takes thereafter is his 'stock' of paddy within the meaning of S.3(2)(f) of Essential Commodities Act. Relying on the aforesaid decision of the Kerala High Court Mr. Bagchi contended that actual weighment of the stock of paddy is not required to be made and the Levy Order providing assessment of levy in respect of a stock reasonably expected to be received by a cultivator, cannot be said to be a land-oriented Order but the Levy Order in such circumstances must be held as basically stock-oriented. Mr. Bagchi contended that in appropriate case, the reasonable expectation of the yield may not come true but there are provisions for preferring objections against normal assessment on the ground of failure of normal yield by the owner of the stock in question in the impugned Levy Order itself. Mr. Bagchi further contended that the Essential Commodities Act has been amended by the amending Act 92 of 1976. By the aforesaid amendment, S. 3(2)(f) has undergone a change and there has been specific addition in the provisions of S. 3(2)(f). From the amended provisions it will appear that after the expression "holding any stock", the expression "or engaged in production", has been added. Accordingly, Mr. Bagchi contended that in any event after the said amendment in 1976 the West Bengal Foodgrains Procurement (Levy) Order, 1977 cannot be challenged as an enactment beyond the delegated authority under S.3(2)(f) of the Essential Commodities Act. Mr. Accordingly, Mr. Bagchi contended that in any event after the said amendment in 1976 the West Bengal Foodgrains Procurement (Levy) Order, 1977 cannot be challenged as an enactment beyond the delegated authority under S.3(2)(f) of the Essential Commodities Act. Mr. Bagchi contended that for the aforesaid reason, in any event, the decision of the Orissa High Court as referred to hereinbefore cannot have any manner of application even assuming but not admitting that the West Bengal (Levy) Order is basically land oriented. Reference was also made by Mr. Bagchi to the decision made in the case of Deep Narayan Singh Vs. State of U.P. reported in AIR 1977 NOC 113 (Allahabad). It was held by the Allahabad High Court in the said decision that by 1972 Notification, the Central Government delegated all its powers under the general provision of S.3(1) as well as its specific powers under the various sub-clauses of S. 3(2) which are only illustrative in nature and do not exhaust the general powers under S.3(1) to make orders and therefore any matter even if not falling within S. 3(2) would be protected by S.3(1). Relying on this decision Mr. Bagchi contended that even assuming that after the amendment, the West Bengal Levy Order is not in conformity with the specific powers delegated under S. 3(2)(f) of the Essential Commodities Act, the competence of the State Government to enforce the Levy Order cannot be challenged because of the wide and general powers under S. 3(1) of the Essential Commodities Act. Mr. Bagchi also referred to the decision made in the case of Atulya Kumar De Vs. The Director of Procurement Supplies, reported in AIR 1953 Cal. page 548. The vires of the West Bengal Foodgrains (Intensive Procurement) Order was examined in the said case and Sinha J. (as his Lordship then was) held that power under the Essential Supplies (Temporary Powers) Act, 1946 is derived form S.3, sub-s. (1) and the provisions of sub-s. (2) are merely illustrative. Although the State Government cannot promulgate an order to acquire stock not already held under S. 3(2)(f), it can be done under the general powers under S. 3(1). Mr. Bagchi submitted that the provisions of S. 3(1) of the Essential Supplies (Temporary Powers) Act, 1946 are pari materia similar to those of S.3(1) of the Essential Commodities Act. 5. It appears to me that the submissions made by Mr. Mr. Bagchi submitted that the provisions of S. 3(1) of the Essential Supplies (Temporary Powers) Act, 1946 are pari materia similar to those of S.3(1) of the Essential Commodities Act. 5. It appears to me that the submissions made by Mr. Bagchi are of substance. Power under S. 3(2)(f) is only a specific power but the general power flows from the provisions of S. 3(1) of the Essential Commodities Act. Hence, even assuming that the West Bengal Levy Order could not have been promulgated under S.3(2)(f) of the Essential Commodities Act the said Levy Order is quite valid in view of general and wide power delegated to the State Government under S. 3(1) of the Act. I am also of the view that the West Bengal Levy Order although refers to a table on the basis of total quantity of land and nature thereof held by a person such table is really referable to normal stock reasonably expected to be held by a person on the basis of average productivity of such land and as such it cannot be contended that the' Levy Order is only land-oriented and not stock oriented and as such beyond the delegated powers under S. 3(2)(f) of the Essential Commodities Act. In any event, after the said amendment of S.3(2)(f) it can no longer be contended that the West Bengal Levy Order, 1977 has been promulgated beyond the delegated power under S.3 (2)(f) of the Essential Commodities Act and as such void and ultra vires. Accordingly the writ petition fails and is dismissed. But in the special facts of the case, there will be no order as to costs. 6. It appears that the petitioner having intended to challenge the vires of the West Bengal Foodgrains Procurement (Levy) Order 1977 did not prefer any appeal or revisional application under Levy Order but moved the instant writ petition. As the Rule is discharged on the finding that the Levy Order is not ultra vires, it is but desirable that the petitioner should be given opportunity to prefer an appeal under the Levy Order challenging the correctness of the order of the Requiring Authority on merits particularly in view of the fact that similar assessment in previous year was found by the Appellate Authority ac; excessive. It is, therefore, directed that the petitioner will be entitled to prefer an appeal under the Levy Order within a month from today and if such appeal is preferred the appellate authority will dispose of such appeal on merits. Petition dismissed.