Bhanwarilal Sethia v. STATE OF WEST BENGAL — 1983 DIGILAW 260 (CAL)

JUDGMENT 1. IN the instant writ petitions, the vires of the West Bengal Rice whole-Salers (Levy) Order, 1982, and in particular, paragraphs 3 and 4 of the same have been challenged. The petitioners have also challenged the legality and validity of the impugned Order/memo No. 1497 (80)F. P. dated 9th November, 1982 issued by director of District Distribution, Procurement and Supply, Government of West bengal, which is annexure 'c to the writ petition in C. 0. No. 12457 (W) of 1982 by which it has been directed inter alia that no rice Mill can open any purchasing centre for purchase of paddy unless the purchasing centres are approved by the District controller with the prior approval of the deputy Commissioner or the District magistrate of the concerned district. 2. THE petitioners are owners of different rice Mills situated at different parts of West bengal and each of them has a valid licence under the Rice Milling Industry (Regulation) Act and has also Licences under the West bengal Rice and Paddy (Control) Order, 1967. The petitioners contend that the government of West Bengal and also the government of India have not published and/or fixed any control price for purchase or sale of the paddy either in the State of west Bengal or in any other locality. Accordingly, there is no control price of paddy in the open market within the State of West Bengal. The petitioners contend that the price of the paddy is controlled in the open market according to the demand and supply and it varied in the current year from Rs. 170/- and Rs. 220/- per quintal when the writ petitions were presented before this Court. The petitioner in Civil order No. 12457 (W) of 1982 has annexed one of the purchase voucher being Annexure 'a' to the writ petition showing the price of the common variety of Annan paddy in November, 1982. The Government of west Bengal in exercise of the power under section 3 of the Essential Commodities Act, in particular sub-section (3b) of the said act promulgated an order known as the west Bengal Rice Mills (Control and Levy)Order, 1982 and the said order was also published in the Calcutta Gazette, Extra-Ordinary on the very same day. It appears from the said order that the said order extends to the whole of West Bengal and it comes into force at once. It appears from the said order that the said order extends to the whole of West Bengal and it comes into force at once. The order is scheduled to expire on 31st October, 1983. Under the said Rice. Mills (Control and levy) Order, 1982 (hereinafter referred to as the Levy Order) certain restrictions and/or conditions have been imposed on the rice Mill in the matter of purchase of paddy and sale of rice within the State of West bengal and the purpose of the said order has been mentioned as for equitable distribution and availability of Rice at a fair price. The 'licensed miller' under the said Levy order has been defined under paragraph 2 (e) as the owner of a Rice Mill within the meaning of clauses (g) and (i) of section 3 of the Rice Milling Industries (Regulation)Act, 1958 duly licensed under the provisions of that Act and duly authorised by licence or otherwise under any law for the time being in force to purchase paddy and sell rice. The petitioners are licensed dealers as they satisfy the conditions laid down under paragraph 2 (e) of the Levy order. The 'rice" as defined under paragraph 2 (g) of the Levy Order means rice produced or manufactured with the aid of power out of paddy and includes broken rice but does not include 'chira', 'muri' or 'khoi' and rice of the fair average quality means rice generally of the quality indicated in Schedule 1 containing admixture of impurities within the tolerance limits. Paragraph 3 of the Levy Order provides that every licensed miller shall sell to the Food corporation 40 per cent of the quantity of rice procured or manufactured every day in any Rice Mill from the date of commencement of the order out of paddy owned by him. It has also been provided that no rice sold under Sub-paragraph (1) shall contain admixture of impurities exceeding the rejection limits specified in column (4) in the Schedule 1 and such price shall be delivered to and paid for by the Food Corporation at the appropriate procurement price specified in paragraph 4. It has also been provided that no rice sold under Sub-paragraph (1) shall contain admixture of impurities exceeding the rejection limits specified in column (4) in the Schedule 1 and such price shall be delivered to and paid for by the Food Corporation at the appropriate procurement price specified in paragraph 4. For the purpose of calculating the quantity of rice saleable under sub-paragraph (1), a quantity of paddy shall be deemed to yield rice at the rate not lower than the rate of extraction specified in Schedule II in respect of different areas and for different types, varieties and grades of rice. Provided that the Government may, by notification in the official gazette, vary or amend the rate in respect of any area or for any type, variety or grade of rice. Provided further that the percentage of rice saleable under sub-paragraph (1) shall not be increased or decreased without the prior concurrence of the central Government. Under paragraph 4 of the Levy Order, the procurement price for different varieties of rice has been laid down. The paragraph 4 reads as follows :- 3. PROCUREMENT prices- (1) for the purpose of this order, the procurement prices for different varieties and grades of rice shall subject to the provisions of sub-paragraphs (2) and (4) be as follows :-2) The rates specified In subparagraph (1) include the pro rata amount of purchase tax paid or payable by a licensed miller in respect of paddy used by him in the production or manufactures of rice which "shall in all cases be supplied by the Food Corporation and are exclusive of the proportionate amount of octory, entry tax, terminal tax if any, paid or payable by a licenced miller in respect of paddy used by him in the production or manufactures of rice. 3) The rates specified in subparagraph (1) are for rice of fair average quality; for rice below the fair average quality, the facts shall be produced by the amounts of cuts indicated in the Schedule 1. 3) The rates specified in subparagraph (1) are for rice of fair average quality; for rice below the fair average quality, the facts shall be produced by the amounts of cuts indicated in the Schedule 1. Explanation 1 common, fine and superfine' means respectively the varieties of rice, not being aromatic varieties, specified in columns (1), (2) and -of Schedule III and include such other non aromatic varieties of Rice as may be classified by the Government by Notification in the official Gazette as common, fine or superfine in accordance with the formula indicated in the table below :-Table length, breadth, ratio of Classification of the rice kernal of any the variety, variety. i) Below 2. 5 common ii) 2. 5 and above but fine below 3. iii) 3 and above superline explanation II 'aromatic" means the scented varieties of rice specified in column (4)of schedule II and includes such other scented varieties as may be classified as such by the Government by notification in the official gazette. 4. The petitioner in Civil Order No. 12457 (W) of 1982 has also quoted a report published in the Daily Telegraph dated 17th November 1982 under the heading 'rice procurement prospects Poor'. It appears from the said report that the chances of procurement of paddy in West Bengal was bleak because the open market price was about Rs. 200/- a quintal. The said petitioner has also made a calculation about the loss to be suffered by a Rice Mill owner if the owner has to sell 40% of the rice milled by the said owner as levy under the levy Order. The calculation as made by the said petitioner is set put hereunder: -Paddy price taken on average @ Rs. 170/-per quintal. Cost of 1 oil. of paddy Rs. 170/- Other costs (includes) Rs. 21/- a) Purchase tax @ Rs. 2/- Rs. 3,40 b) Carriage and purchase commission. Rs. 3. 60 c) Milling charge Rs. 10. 00 d) Milling Margin Rs. 4. 00 Rs. 2100 Rs. 191/- Realisations : Cost of 1 oil. of Rice Rs. 289. 40 @ 40% Levy : Price of Levy rice 26. 400 X 196/- Rs. 51-74 price of levy-free rice 39. 600 X 351. 66 Rs. 139. 26 Rs. 191. 00 (if sold at Rs. 351. 66 market price Rs. 300. 00 loss Rs. 51. 6. 6 4. 2100 Rs. 191/- Realisations : Cost of 1 oil. of Rice Rs. 289. 40 @ 40% Levy : Price of Levy rice 26. 400 X 196/- Rs. 51-74 price of levy-free rice 39. 600 X 351. 66 Rs. 139. 26 Rs. 191. 00 (if sold at Rs. 351. 66 market price Rs. 300. 00 loss Rs. 51. 6. 6 4. THE levy of 40% has however been subsequently reduced to 30% and the said petitioner has calculated the loss if levy is paid at the rate of 30%at Est. 29. 44 per quintal. It may be noted in this connection that other petitioners have also supported the said contentions of the petitioner in Civil Rule No. 12457 (W) of 1982 and it has been contended on behalf of the petitioners that the average market price of the paddy per quintal has steeply gone up in the later half of 1983 and accordingly the loss per quintal, if 30% levy is to be paid, will be much more. Mr. Gupta, the learned Counsel appearing with Mr. Kanan Kumar Ghosh in Civil Order No. 12457 (W) of 1982 has contended that the Levy Order has imposed unreasonable restriction upon the Rice Mill owner and as such the levy Order has violated Article 19 (1) (g) of the Constitution. It is contended by Mr. Gupta that in the Levy Order, it has been stated that the purpose of the said order is to secure equitable distribution and availability of rice at a fair price and the Government has also stated that the said Levy Order was enforced so that the rice is made available at a reasonably fair price to the vulnerable section of the community viz. the section which is economically poor. The learned Counsel submits that the very purpose will be frustrated because no imposition - of such levy has been made on the husking mills. The number of husking mills in the State of west Bengal is more than 18,000 and the number of rice mills now in operation is about 300. As a matter of fact, the husking mills produce more than 80% of the rice in the State of West bengal, but there is no restriction on the husking mill operators under the said Levy Order and they are free to purchase paddy in any price they like and sell rice at any price they like. As a matter of fact, the husking mills produce more than 80% of the rice in the State of West bengal, but there is no restriction on the husking mill operators under the said Levy Order and they are free to purchase paddy in any price they like and sell rice at any price they like. The husking mill operators are scattered all over the West Bengal and in interior parts of the village and as a matter of fact they really cater the need of the poor villagers who are the weaker section of the community. As there is no restriction on the price to be charged by the husking mill operators, the very object of the Levy Order cannot but get frustrated. In support of this contention, the attention of this Court has been drawn to an observation of the supreme Court made in the case of chandra Kanta Saha v. Union of India reported in A. I. R. 1979 S. C. 314. The supreme Court has observed in the said decision that about 18000 Rice Millers and Rice hullers are operating in West bengal and they are performing almost similar functions of a Rice Mill and there is not much of a difference between the husking mills and the rice mills. It has been contended by Mr. Gupta that under sub-section (3b) of section 3 of the Essential Commodities act, the State Government can impose restriction on the sale of rice, milled by a Rice Mill and may direct sale of a part of rice milled by a Rice miller to the State Government and its agent, but such direction must have a reasonable basis and the price to be paid for supply of such rice must be reasonable and it cannot be fixed arbitrarily so that a rice miller is forced to stop his business because it will not be possible for him to supply any part of the rice milled by such miller at the price offered by the State Government and/or its agents. Mr. Gupta has contended that if such reasonable price is not fixed and relevant factors for determining the reasonable price are not taken into consideration, any order which will be imposed by the State Government in the purported exercise under sub-section 3 (3b) of Essential Commodities 'act will be bad and ultra vires. Mr. Gupta has contended that if such reasonable price is not fixed and relevant factors for determining the reasonable price are not taken into consideration, any order which will be imposed by the State Government in the purported exercise under sub-section 3 (3b) of Essential Commodities 'act will be bad and ultra vires. In this connection, the attention of the Court has been drawn to a decision of this court made in the case of B. Sethia vs. State of West Bengal reported in A. I. R. 1973 Calcutta page 67. In the said decision, the West Bengal Rice Mills (Levy) Order, 1967 was held ultra vires because the price for paddy under the said levy Order was not fixed by taking into consideration of the relevant factors. The attention of the Court has also been drawn to a decision of Karnataka high Court made in the case of Joe pereira vs. Union of India reported in. A. I. R. 1979 Karnataka, page 12. In the said decision, the Karnataka Paddy Procurement (Levy) Order, 1966 was taken into consideration by the Karnataka high Court and it has been high lighted in the said decision that in fixing a controlled price of the rice or paddy, the relevant factors must be taken note of another decision of this Court made in the case of Gokul Ch. Dey vs. Joint Secretary, Government of India, reported in 84 C. W. N, page 679 has also been cited on behalf of the petitioners. In the said decision, the Sugar (Retention and. Sale by Recognised Dealer) Order, 19713 came up for consideration before this court and the said Sugar Order of 1979 was held invalid because it has been held that there cannot be controlled price of sale for a particular transactions. If any price had been fixed in respect of all transactions for buying and selling of sugar on a particular date, the order might have been valid but any order for selling to the Government or handing over to the agent as declared under the Essential Commodities Act of a particular stock at a particular price cannot, in the context of the said Act, be described as or treated as 'controlled price' and the decision of the Karnataka High Court in the Joe pereira's case was also considered in the said decision. 5. MR. 5. MR. S. C. Bose appearing for some of the petitioners has also supported mr. Gupta and has also contended that no statutory controlled price for rice and paddy has been fixed under section 3 (SB) of the Essential Commodities act. Hence, the dealers are free to sell paddy in any price they choose. Mr. Bose has contended that if a rice miller has to purchase price at Rs. 200/- per quintal, where there is no control price, the price of the rice by taking conversion rate at 66% comes to about 270/-excluding milling charges etc. In such circumstances, it is impossible for any rice miller to deliver any quantity of rice to the Food Corporation or any other agent of the Government under the levy Order. The price to be paid by the Food Corporation of India is so shockingly low that it is not possible for any businessman or the rice miller to deliver rice at the said rate. Mr. Bose has contended that -Such unreasonable price fixed under the Levy Order has really caused unreasonable restriction on the right to trade and on that score the Levy Order should be declared ultra vires. In support of the contention, he has referred to a decision of the Supreme Court made in the case of State of rajasthan vs. Nath Mai reported in a. I. R. 1954 S. C. page 307. The Rajasthan food grains Control Order, 1949 came up for consideration by the Supreme court. The last portion of Clause 25 of the said Control Order was declared ultra vires by the Supreme Court as the same caused unreasonable restriction upon carrying of trade or business. It was observed by the Supreme court that the Government price offered under the said Order was Rs 9/- and the market price was Rs. 17/- or Rs. 18/- and as such it was not possible for any businessman to deliver to the government at Rs. 9/- when the market price was Rs. 18/- or Rs. 17/ -. Mr. Bose contends that for similar reasons, the instant Levy Order must also to be held as violative of Article 19 (1) (g)of the Constitution. Mr. Bose has also referred to a decision of the Patna High court made in the case of M/s. Teknarayan Mahes Prosad v. State of Bihar reported in AIR 1972 Patna page 250. 17/ -. Mr. Bose contends that for similar reasons, the instant Levy Order must also to be held as violative of Article 19 (1) (g)of the Constitution. Mr. Bose has also referred to a decision of the Patna High court made in the case of M/s. Teknarayan Mahes Prosad v. State of Bihar reported in AIR 1972 Patna page 250. The Bihar Rice and Paddy procurement order, 1970 came up for consideration before the Patna High Court. It has been held in the said decision that clause 3 of the said Order which provides for sale or delivery of 40% or 25%, as the case may be, of all varieties of rice dealt with by the Miller or Wholesale Dealer was violative of Article 19 (1) (g) of the Constitution because the said provision imposed unreasonable restriction on trade by the Miller. In the said Control Order there was a provision that unless certificate was obtained from the appropriate authority about the delivery of the said 30% or 40%, the Miller could not deal with his, stock. It has been held by the Patna high Court that even if a Miller would deliver 30% or 40% there may be delay in granting such certificate for no fault of the miller but he cannot carry on the business. Mr. Bose has contended that in the instant Levy Order also, until such delivery is made, a Rice Miller cannot sell or remove his stock of paddy or rice. It has been contended by the learned Counsels appearing for the petitioners that the Food Corporation of India is a statutory body and there is no compulsion on the Food Corporation of India to accept delivery of rice by a Rice Miller immediately. The Food corporation of India may delay in taking delivery and paying price but a rice Miller cannot sell his stock until the Food Corporation is pleased to accept delivery. It has, therefore, been contended that the decision of the Patna high Court as made in M/s. Teknarayan Mahe prosad's case squarely applies to the facts and circumstances of the present case and the instant Levy order should also be declared as ultra vires. 6. MR. Majumdar, the learned Counsel appearing for some of the petitioners, have also supported Mr. Gupta and Mr. 6. MR. Majumdar, the learned Counsel appearing for some of the petitioners, have also supported Mr. Gupta and Mr. Bose and has contended that the powers under sub-section (3b) of Section 3 of the Essential Commodities Act have been completely misused by the state Government in promulgating the said Levy Order and if the said levy order is implemented there will be complete stoppage of business in the rice Mills of the State. Such cannot be the object of a Levy Order and it must, therefore, be held that the Levy Order is imposing unreasonable restriction on the right of trade and as such violative of Article 19 (1) (g) of the Constitution. Mr. Chatterjee, the Senior Standing Counsel being assisted by Mr. R. K. Dutta Gupta and other learned Counsels has, however, contended that Section 3 (3b) of the Essential Commodities Act is protected against infringement of fundamental rights as the same has been placed under Ninth Schedule of the Constitution under 40th amendment of the Constitution in 1976. Sections (3b) of the Essential Commodities Act authorises the Central Government and or the State Government to fix a procurement price notwithstanding section 3 (3) (f). The learned Senior standing Counsel has contended that fixing of price under section 3 (3b) of the Essential Commodities Act relating to food grains may cause loss to the producers or sellers for some time but the fixation or the Control Order cannot be challenged as arbitrary and unreasonable because Section 3 (3b) has, got the protection being placed in the 9th schedule of the Constitution. He has submitted that the policy for the Levy order is for equitable' distribution of rice at fair price to the weaker section of the community and for the said purpose if the price has been fixed under section 3 (3b), the question of suffering loss temporarily by the Rice Miller will not be germane and the Levy Order cannot be held ultra vires. In this connection, the learned Senior Standing counsel has referred to a decision of the Supreme Court made in the case of m/s. New India Sugar Works vs. State of Uttar Pradesh reported in A. I. R. 1981. S. C. page 998. In this connection, the learned Senior Standing counsel has referred to a decision of the Supreme Court made in the case of m/s. New India Sugar Works vs. State of Uttar Pradesh reported in A. I. R. 1981. S. C. page 998. The Supreme Court has: held in the said decision that policy of price control has for its dominant object, equitable distribution and availability of the commodity at fair price for the benefit of the consumers. It is manifest that individual interests, however precious that may be, must yield to the larger interest of the community namely the consumers even if the petitioners have to bear loss. Under the said Control Order relating to sugar, a 50% levy of sugar was imposed. The learned Standing Counsel contends that in the instant case only 30% Levy has been imposed and the rice brans can also be sold in the open market by the rice Miller which will also compensate to some extent the loss which may be suffered temporarily by a Rice Miller for delivering 30% of the rice milled by the Rice Miller under the Levy Order. In this connection, a Bench decision of this Court made in the case of union of India vs. Hindusthan Aluminium Corporation reported in 87 C. W. N. page 450 was cited on behalf of the state Government. It has been held by the Division Bench of this Court in the said decision that in the matter of fixing of price, the interest of the consumers should be the paramount consideration. It has been further contended on behalf of the State that under section 3 (3c) of the Eessential commodities Act, the Legislature has expressly intended to protect reasonable return on the capital employed in the business of manufacturing sugar, but such consideration has not been made by the Legislature for other food grains like rice and paddy. The Legislature has consciously not provided for a reasonable return as in the case of sugar in respect of other food grains which are controlled by Section 3 (3b. It has been submitted by the learned Standing Counsel that the supply of food grains to the poor consumers at a reasonable price was the paramount consideration of the legislature and precisely for the said reason, such provision for reasonable return as in section 3 (3c) has not been made in Section 3 (3b. It has been submitted by the learned Standing Counsel that the supply of food grains to the poor consumers at a reasonable price was the paramount consideration of the legislature and precisely for the said reason, such provision for reasonable return as in section 3 (3c) has not been made in Section 3 (3b. On behalf of the State Government, a Bench decision of the Andhra Pradesh High Court made in the case of Andhra Pradesh rice Bran Solvent Extractors' Association v. Government of Andhra Pradesh reported in A. I. R. 1983 Andhra Pradesh page 206 has also been cited. Andhra pradesh Livestock Food (Levy) and restriction on Sale Order, 1981 came up for consideration before the Andhra pradesh High Court. It has been held in the said decision that under sections 3 (3a), S (3b) and. 3 (3c) of the Essential commodities Act, procurement prices are to be fixed in respect of food stuffs, food grains, edible oils and sugarcane respectively with reference to regulation made under section 3 (2) (f) of the Essential Commodities Act. It has been held in the said decision that the controlled price under section 3 (1) read with section 3 (2) (c) is different from the price to be fixed under sub-sections (3a), (3b) and (3c) of Section 3 of the essential Commodities Act. The object of the said Andhra Pradesh Order is to maintain supply at reasonable price. The mere fact that in consequence of fixation of fair price some loss may be incurred by individual producer cannot lead to the invalidity of the order. The restriction placed by clause 3 of the order does not reach the stage of prohibition. In this connection, a decision of the Supreme Court made in the case of Saraswati Industrial Syndicate Ltd. vs. Union of India reported in A. I. R. 1975 SC page 460 has also been cited on behalf of the State Government. It has been held in the said decision that price fixation is more in the nature1 of legislative measure even though it may be based on objective criteria found in a report or other materials. It cannot, therefore, give rise to a complaint that rule of natural justice has not been followed in fixing the price. It has, however, been held that the criterion adopted must be reasonable. It cannot, therefore, give rise to a complaint that rule of natural justice has not been followed in fixing the price. It has, however, been held that the criterion adopted must be reasonable. The learned Senior standing Counsel has contended that the state Government has fixed the price to be offered for the levy rice according to the supporting price of rice or paddy determined by the Central Government after making study of the market condition. It, therefore, cannot be contended that such price has been fixed arbitrarily or capriciously without any basis whatsoever. He has contended that fixing of price under the Levy order is in the nature of legislative measure as held by the Supreme Court and as such it is not necessary to take the views of the Rice Millers and/or give them an opportunity of being heard before fixing the price of rice. He has contended that subsection (3b) of Section 3 of the Essential commodities Act has been amended in 1976. Prior to such amendment in 1976, a price prevailing or likely to prevail during the post harvest period in that area was required to be considered, but by amendment, such requirement has been removed. The decision of the Supreme Court made in the case of M/s. Prag Rice and Oil Millers vs. Union of India reported in AIR 1978 SC page 1296 has also been cited on behalf off the state. It has been held in the said decision that in the ultimate analysis mechanics of price fixation has necessarily to be left to the judgement of the executive and unless it is patent that there is a hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. The Supreme Court has also noted that in the matter of fixation of price, whichever method is adopted, such fixation often comes under challenge. Another decision of the Supreme Court was also xited on behalf of the State namely the decision made in the case of M/s. Sukhinder Pal Bipan Kumar vs. State of Punjab reported in AIR 1982 SC page 65. In the said decision, the Punjab Food grains Dealers licensing and Price Control Order, 1948 came up for consideration. Another decision of the Supreme Court was also xited on behalf of the State namely the decision made in the case of M/s. Sukhinder Pal Bipan Kumar vs. State of Punjab reported in AIR 1982 SC page 65. In the said decision, the Punjab Food grains Dealers licensing and Price Control Order, 1948 came up for consideration. It has been held that the power to suspend licence pending cancellation proceedings is not violative of Article 14 or Article 19 (1) (g). It is a reasonable social control in the public interest. The learned Standing Counsel has contended that the instant levy Order has, been made for a public interest and has imposed a reasonable social control. Accordingly, the said order should not be struck down as violative of article 19 (1) (g) of the Constitution. It has been further contended on behalf of the State Government that the Levy Order consists of two parts, namely, (1) imposition of levy and (2) fixation of price. The imposition is done under section 3 (2) (f) of the Essential Commodities Act. The provisions of Section 3 (2) (f) has already been held intra vires and cannot be challenged. The only challenge remains in respect of fixation of price. The price fixed under the levy Order under section 3 (3b) must mean that it should be reasonable to the class of consumers primarily for which such fixation of price is made. The price under the every order has been fixed to benefit weaker section of the society and as aforesaid such fixation has been made on the basis of reasonable supporting price determined, by the Central Government after consideration of the market position. Hence, the price fixed under the Levy Order is a reasonable price to the weaker section of the community and even if it is not equal to the market: price or does not appear to be reasonable in relation to the interest of the procedures, the price does not become invalid. The learned Counsel for the State has contended that the Parliament having entrusted the fixation of prices to the expert judgment: of the Government, it would be wrong for this Court to examine each and every minutest detail regarding the fixation of price made by the government under the levy Order. The learned Counsel for the State has contended that the Parliament having entrusted the fixation of prices to the expert judgment: of the Government, it would be wrong for this Court to examine each and every minutest detail regarding the fixation of price made by the government under the levy Order. The Government is entitled to make pragmatic adjustments which may be called for by the particular circumstances in a case. Referring to the observation of the supreme Court made in paragraph 69 in M/s. Prag Rice and Oil Mills' case (Supra), the learned Counsel for the State has contended that the Supreme Court has held that the price cannot be declared unconstitutional unless it is patently arbitrary, discriminatory or demonstratively irrelevant to the policy which the Legislature is free to adopt. The learned Counsel for the state has contended that the chart given in one of the writ petitions showing losses to be suffered by a Rice Mill if 30% levy is to be given on the basis of the price fixed under the Levy Order is irrelevant for consideration of fixation of price under section 3 (3b. The facts set out in the writ petitions about the existing market price and the probable loss to be suffered by a Rice mill may be relevant for consideration of a price to be fixed under section 3 (3c) if the facts set out in the writ petition are correct but for consideration of price under section 3 (3b) the market price is an irrelevant consideration. The learned Counsel for the state has, therefore, contended that the cases cited on behalf of the petitioners can be distinguished and the arguments advanced by them cannot be accepted in the facts and circumstances of the case. The writ petitions are, therefore, liable to be dismissed. 7. IN answer to the said contentions made by the leared Counsels for the State, mr. Kanan Kumar Ghosh, the learned Counsel appearing for some of the petitioners has contended that under section 3 (3b) of the essential Commodities Act the Government has a right to fix a price which should be reasonable to the consumers for whom such fixation is made under section 3 (3b. Kanan Kumar Ghosh, the learned Counsel appearing for some of the petitioners has contended that under section 3 (3b) of the essential Commodities Act the Government has a right to fix a price which should be reasonable to the consumers for whom such fixation is made under section 3 (3b. But in fixing a reasonable price, the Government is under an obligation to ensure that such fixation of price is not so unreasonable that the price will cause such a hardship to the suppliers that it may be virtually impossible for them to supply the food-grains at the price fixed under a Control order resulting in complete extinction of their business. Mr. Ghosh has contended that the Supreme Court, in various decisions, has highlighted that even in the matter of fixation of price under section 3 (3b), a reasonable balance is to be struck out. In this connection, Mr. Ghosh has referred to a Bench decision of Gujarat high Court made in the case of Kalebhai vallabhai vs. State of Gujarat, reported in AIR 1980 Notes of Cases, page 107. The Division Bench of Gujrat High Court has taken into consideration the Gujarat Paddy Procurement Order, 1974 in the said decision and has held that no scientific basis for fixing current price of paddy in Gujarat State can be substantiated and no due statutory considerations of the factors as referred to in Section 3 (3b) had been made. Mr. Ghosh contends that even in M/s. Prag Rice and Oil Mills' case, the Supreme Court has also highlighted that in fixing the price under section 3 (3b), a reasonable balance of convenience between the consumers in one hand and the suppliers in the other hand should be made after analysing the price then prevailing in the market. The supreme Court in Prag Rice and Oil Mill's case after analysing certain facts came to the finding that fixation of price of mustard oil at Rs. 10/- per k. g. did not appear to be patently an unreasonable so as to be violative of the petitioner's right to hold property or to trade in business. He has also submitted that even in Meenakshi Mills' case reported in AIR 1974 SC page 366, the supreme Court has also highlighted the balancing factor. Mr. 10/- per k. g. did not appear to be patently an unreasonable so as to be violative of the petitioner's right to hold property or to trade in business. He has also submitted that even in Meenakshi Mills' case reported in AIR 1974 SC page 366, the supreme Court has also highlighted the balancing factor. Mr. Ghosh has contended that there cannot be absolute abrogation of the right to trade guaranteed under Article 19 of the Constitution in the garb of reasonable restriction to be imposed in the matter of fixation of price under section 3 (3b. Although Section 3 (3b) authorises a social control in the matter of food-grains, such social control must be balanced with reference to trade and commerce dealing with such food grain. He has also submitted that even in Hindusthan Aluminium corporation's case, the Division Bench of this Court has held that the relevant factors for fixation of price are got to be considered. 8. MR. Dipankar Gupta, the learned counsel appearing for some of the petitioners, has also contended that the test of reasonableness of a price cannot be given a gobye and the price fixed under section 3 (3b) must pass the test of reasonableness. However, within the area of reasonableness, there may be loss for some time because of fixation of price on the broader consideration of social control but in the garb of social control, any unreasonable price cannot be fixed. He has also supported Mr. Ghosh in his contention that a balance is got to be struck out in the matter of reasonableness of a price upon consideration of interest of both the consumers and also the suppliers. He has submitted that in doing so, the interest of the consumers may play dominant part but such consideration of the interest of the consumers cannot mean total non-consideration of the interest of the traders or suppliers resulting in closure of business of the suppliers because of an unreasonable fixation of price. Mr. Gupta has contended that the reasonable price under Section 3 (3b) of the Essential Commodities Act must mean resonable on the overall facts where producer's interest cannot be sacrificed altogether. In this connection, he has referred to a decision made in the case of commissioner of Income-tax vs. M/s. Madurari Miffs Co. Ltd. reported in AIR 1973 SC page 1357. Gupta has contended that the reasonable price under Section 3 (3b) of the Essential Commodities Act must mean resonable on the overall facts where producer's interest cannot be sacrificed altogether. In this connection, he has referred to a decision made in the case of commissioner of Income-tax vs. M/s. Madurari Miffs Co. Ltd. reported in AIR 1973 SC page 1357. It has been held by the Supreme Court in the said decision that it is well settled that considerations streaming from legislative history must not be allowed to override the plain words of a statute. Referring to the said decision, Mr. Gupta has contended that simply because prevailing market price is no longer a factor for consideration under the amended provisions of section 3 (3b), the market rate cannot be considered at all. Mr. Gupta contends that even after the amendment of section 3 (3b) the market rate remains a relevant consideration. Referring to the decision in Meenakshi Mills' case, since relied on by the learned Counsels appearing for the State, Mr. Gupta has contended that in Meenakshi Mills' case also, the Supreme court has highlighted that an amount of loss which an industry can bear cannot be lost sight of in fixation of price. The supreme Court has highlighted the question of striking out a balance between the consumers and the suppliers and it has been held by the Supreme court in paragraph 77 of the said decision that price,should be fixed in such a manner while striking out the balance, that the producers do not perish and consumers do not suffer. It cannot be the intention of the legislature even in the matter of fixation of price under section 3 (3b), that the producers should be driven out of the business altogether. Mr. Gupta has further contended that in Meenakshi Mills' case the Supreme court has held that if the producers suffer losses for some time it will still be reasonable restriction because the: very object of price control is to hold a. price line, but according to Mr. Gupta,, such price control for the purpose of: holding price line cannot be an unconscionable restriction thereby perpetrating losses for all time to come, resulting in total closure of the trade and/or business of the dealers and/or suppliers. Mr. Gupta,, such price control for the purpose of: holding price line cannot be an unconscionable restriction thereby perpetrating losses for all time to come, resulting in total closure of the trade and/or business of the dealers and/or suppliers. Mr. Gupta has contended that a reasonable return on investment and reasonable rate of profit may not be a sine qua non of the validity of an action taken under section 3 (3b) of the Essential commodities Act, but such action cannot lead to patent injustice and non-consideration of the interest of the producers and/or suppliers. Mr. Somendra Chardra Bose, the learned Counsel appearing for some of the petitioners in reply to the arguments advanced by the learned Counsels for the State has submitted that fixation of price cannot be held to be reasonable even under section 3 (3b) if such fixation leads to complete closure of business of the producers and/or suppliers. The learned Counsel for the petitioners-have contended that in fixing the price to be paid to the Rice Mill for supply of levy rice to the agent of the State government, namely, the Food Corporation of India, the State Government completely failed to take into consideration that there was no general fixation of price of the paddy in the State and the market price being much higher than the price to be offered to the Rice miller by the Agent of the State Government, it is not at all possible for any rice Miller to carry on trade or business if such levy rice is to be supplied by such Rice Miller at a shockingly low price fixed under the Levy Order. The learned Counsels have also contended that in the lean months namely from june onwards, the supply of paddy in the markets in the State of West Bengal invariably dwindles and in the State of West Bengal there is a chronic shortage of food grains including paddy. The supply of paddy in the market considerably diminishes in the lean months and it is a regular feature in the state of West Bengal that the price of paddy steeply goes up during these lean months but there is no consideration in the Levy Order even for supply of Levy rice during the lean months. The supply of paddy in the market considerably diminishes in the lean months and it is a regular feature in the state of West Bengal that the price of paddy steeply goes up during these lean months but there is no consideration in the Levy Order even for supply of Levy rice during the lean months. It is, therefore, virtually impossible for any Rice miller to supply levy rice at the rate to be offered by the Agent of the State government under the said Levy Order. The learned Counsels for the petitioners have therefore submitted that the price fixed for the levy rice under the said Levy Order must be held an unreasonable and should be struck down by this Court. 9. AFTER giving my anxious consideration to the facts and circumstances of the case and arguments advanced by the learned Counsels appearing for the parties, it appears to me that the paddy or rice being a food grain, the imposition of levy on such paddy or rice under a Levy Order can be validly made under section 3 (2) (f) of the Essential commodities Act. The State' Government has also a power to fix the price for the levy rice under the said Levy order in accordance with the provisions of Section 3 (3b) of the Essential Commodities Act. Section 3 (3b) of the Essential Commodities Act has since been amended and the legislature has made a conscious departure from the previous provision of section 3 (3b) under which prevailing post harvest market price was required to be taken into consideration. There is also no manner of doubt that section 3 (3b) has been introduced as a measure of social control to hold the price line of the food grains. It also appears to me that the law is now well-settled that if a price is fixed as a measure of social control in accordance with the provisions of section 3 (3b) of the Essential Commodities Act, the fact that the price fixed under section 3 (3b)compels the producers and/or suppliers to suffer losses for some time, cannot render such price as invalid. The Supreme Court has specifically held in Saraswati industrial Syndicate Ltd.'s case (A. I. R. 1975 S. C. 460) that the price fixation is more in the nature of legislative measure even though it may be based on objective criteria found in a report or other materials. It has also been held by the Division Bench of the Andhra pradesh High Court in Andhra Pradesh rice Bran Solvent Extractors' Association's case (A. I. R. 1983 Andhra Pradesh 206) that the controlled price fixed under section 3 (1) read with section 2 (2) (c) of the Essential Commodities act is different from the price to be fixed under sub-sections (3a), (3b) and (i)3c) of Section 3 of the Essential Commodities Act. 114. It also, appears to me that tee mere fact that in consequence of fixation of a fair price, individual producer suffers some loss cannot lead to the invalidity of the price fixed under section 3 (3b)J In my view, the State Government will be justified in fixing a price as a measure of social control on the price line for the benefit of the weaker section of the community and if such fixation of price under section 3 (3b) is made after due consideration of the relevant factors referred to in section 3 (3b), the price fixed cannot be struck down as unreasonable simply on the score that a producer and/or supplier is to suffer losses because of the difference between the price fixed under section 3 (3b) and the market price then prevailing. It has also been held by the Supreme Court in Meenakshi Mills Ltd. 's case (A. I. R. 21974 S. C. 366) that in determining the reasonableness of a restriction imposed by law in the field of industry, trade, for commerce, it has to be remembered that the mere fact that some of those who are engaged in such field or industry, trade or commerce are alleging loss because of imposition of a price under which supply of the commodity in question is to be made, will not render the law making such imposition as unreasonable. By the very nature, industry, trade or commence goes through the period of prosperity and adversity on account of economy and at sometime social and political forces. 10. By the very nature, industry, trade or commence goes through the period of prosperity and adversity on account of economy and at sometime social and political forces. 10. IT also appears to me that no control price having been fixed by the State Government and/or Central Government in the State of West bengal, the market price completely depends on the forces of supply and demand in the market and the Court can also take a judicial notice of the fact that in lean months, the price of paddy always goes up. It, therefore, appears to me that the price which was fixed under the Levy Order may not be held as unconscionably low when such levy Order was enforced in the winter season of 1982 when Aman paddy is harvested in the State. Such price however, cannot but be very low in the lean months and it is, therefore, essentially necessary for the State Government to give relief to the Rice Miller by offering a different price schedule during the lean months from April-May onwards and or by reducing the percentage of levy. If such corrective measures are not taken by the State Government for giving relief to the Rice Miller by suitably amending the Levy Order, the difference between the market price prevailing during the lean months and the price to be offered for the levy rice will be so great that it will; no longer remain a question of suffering temporary losses within a tolerance limit, but it is quite likely to lead to the closure of business of the rice mills. There is no manner of doubt that for effecting a social control to hold the price line, the State Government cannot have any intention to resort to any unjustified price fixation thereby closing the Rice Milling business altogether in the State. But at the same time, the power to fix a price of any food-grain under section 3 (3b) as a measure of social control to hold the price line of the food-grain, cannot be exercised arbitrarily or capriciously or without consideration of the relevant factors referred to in section 3 (3b. But at the same time, the power to fix a price of any food-grain under section 3 (3b) as a measure of social control to hold the price line of the food-grain, cannot be exercised arbitrarily or capriciously or without consideration of the relevant factors referred to in section 3 (3b. In my view, the learned counsels for the petitioners are justified in their contentions that while such social control can be validly made by the State Government in the matter of fixation of price of food-grain under section 3 (3b) and while such fixation can be mode primarily to benefit the weaker section of the community who are the main consumers of such food-grains, such fixation should be made in such a manner that trade and commerce of the producer and/or supplier of the food grain are not forced to be closed altogether because of the fixation of price under section 3 (3b) in complete disregard of variable factors referred to in section 3 (3b. The petitioners are; justified in their contentions that simply because after amendment of section 3 (3b) prevailing market rate is no longer a factor for consideration, the market rate cannot altogether be taken into consideration in fixing a reasonable price under section 3 (3b. The producers and/or suppliers may be compelled to suffer losses for some time because of the social control exercised in fixing the price of a food grain under section 3 (3b), but such social control, in my view, cannot mean absolute abrogation of the right to trade and the State Government has an obligation to keep in mind the question of survival of the traders and/or suppliers in the matter of fixation of reasonable price under section 3 (3b. The necessity of striking out a balance between the interest of the traders and suppliers and consumers has been highlighted by the Supreme Court in various 'decisions as indicated hereinbefore. By fixing of a reasonable price upon due consideration of the factors referred to in section 3 (3b), the producers and/or suppliers may suffer losses for some time, but such suffering of losses will not render the price unreasonable because the object of price control under section 3 (3b) is to hold the price line for the benefit of the consumers primarily constituting the weaker section of the community. But if the interest of the traders and/or suppliers is not taken into consideration at all or their interest is completely sacrificed then such fixation of price under section 3 (3b) cannot be held to be justified. 11. THE Supreme Court in Meenakshi mills' case has categorically stated that by striking out the balance between the producers and the consumers it should be ensured that the producers do not perish altogether and the consumers do not suffer serious hardship. It is, therefore, necessary to consider whether the price under the Levy Order has actually been fixed on due consideration of all relevant factors as referred to in section 3 (3b. It appears that the Agricultural Prices Commission of the Government of India recommends from time to time the procurement price of paddy to the Government of India. Such Agricultural Prices Commission has also submitted a report on the price policy of Kharif cereals for 1982-83 in August, 1983. A report of such Agricultural Prices Commission on the price policy of kharif cereals of 1982-83 season was produced before this Court by the learned Counsel for the State upon notice to the Counsels for the petitioners for the purpose of showing that in fixing the price under the Levy Order, the state Government took into consideration all relevant factors including the report of the Agricultural Prices Commission. It appears that the said Commission has recommended the price for common variety of paddy for the kharif year 1982-83 at Rs. 122/- per quintal. Although the Government of India is not bound to accept the recommendation of the said Commission but usually it accepts the recommendation and fixes the prices of procurement of common, fine and superfine variety of paddy. It appears that in the last year, the Central Government fixed Rs. 122/- Rs. 126/-and Rs. 130/- as procurement price of common, fine and superfine variety of aman Paddy and such procurement price was fixed in the State of West bengal along with other States. It is the case of the State Government that on the basis of such procurement price of paddy fixed by the Central Government on the basis of recommendation of the Agricultural Prices Commission, the price for levy rice has been fixed and the price fixed under the Levy Order is not at all low than the procurement price fixed by the Central Government. The learned Counsel for the State has argued that the Agricultural Prices Commission takes into consideration all variable factors and they have got the expertise in recommending the price policy of kharif cereals. The procurement price has been fixed by the Central government on the basis of expert opinion of the said Prices Commission and the procurement price of paddy has been fixed not only for West Bengal, but for other States also. In my view, it cannot be contended that by accepting the recommendation of procurement price of the Government of India in fixing the price to be paid for the levy rice in terms with the recommendation of the said commission the State Government has acted arbitrarily or capriciously and has not taken into consideration the question of survival of rice mills in the state. It may be noted in this connection that the learned Standing Counsel has also contended that there is no restriction on sale of rice bran and the rice mills are free to sell the said rice brans in the open market which are reasonably expected to fetch some price to the relief of the Rice Miller. In the preamble of the Levy Order, it has been stated that for maintaining supplies of rice and for securing its equitable distribution and availability at a fair price, the said Levy Order has been imposed. It, therefore, cannot be held that fixation of price under the Levy Order has been made upon complete non-consideration of the relevant factors under the said sub-section 3 (3b. In my view, it cannot also be held that by suffering the' alleged loss as estimated by the petitioner in C. O. No. 12457 (W) of 1982 for supply of 30% of Levy rice, the Rice Milling business in the State was to be closed down completely when the Levy order was enforced. Hence, the Levy order and/or the price fixed for levy rice cannot be declared as ultra vires. 12. IT, however, appears to me that admittedly the State of West Bengal is a deficit State in food grains and in the last year, the yield of paddy was much less than the previous years because of unprecedented draught and the said fact having been admitted by the State Government in various reports, the Court can take, a judicial notice of the same. So far as direction restraining the rice Miller to open any purchase centre by the Rice Miller without obtaining prior approval of the District Magistrate as contained in the memo or direction dated 9th November, 1982 of the director of District Distribution Procurement and supply is concerned, it appears to me that there is no legal sanction for such direction and/or restraint on the Rice Millet. A Rice Miller has every right to purchase paddy for the mill from any source so long the Miller does not infringe any statutory provision and by an executive direction the right of the Miller to procure paddy cannot be curtailed. The said memo is, therefore, quashed. 13. THE learned Counsels for the petitioners have also contended that the food Corporation of India has been appointed as an agent under the Levy order but the said Corporation cannot be compelled to take delivery of the levy Rice whenever levy rice will be brought for delivery. Under the Levy order, a Rice Miller cannot remove his stock of rice of paddy or rice which are levy free unless levy rice has been delivered. Since under the Levy Order, the agent cannot be compelled to take delivery of levy rice or to take delivery of such Levy Rice whenever brought for delivery, the direction contained in the Levy Order restraining the Rice miller to remove the stock of the Miller unless delivery of levy rice is made to the agent must be held as unreasonable and invalid. In my view, the Food Corporation of India is a statutory public body and it can be reasonably expected that the Corporation will act fairly as an agent of the State Government under the Levy Order and will not put a clog in the matter of delivery of levy rice. No instance has been cited by the petitioners that because of the reluctance on the part of Food Corporation, there has been any delay in giving delivery of levy rice. Hence, there will be no justification in declaring the said provision of the levy order as unreasonable on a hypothetical assumption. The writ petitions are disposed of accordingly. There will be no order as to costs. Petitions disposed of.