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1991 DIGILAW 118 (PAT)

Ram Narain Prasad v. State Of Bihar

1991-03-21

R.N.SAHAY, S.B.SINHA

body1991
Judgment S.B.Sinha, J. 1. These three writ applications involving common questions of law and fact were heard analogously and are being disposed of by this common judgment 2. In Cr. W.J.C. 130/90R, the petitioner has prayed for quashing of seizure of 152 quintals, 70 kgs of rice seized by Senior Marketing Officer, Palamau as also the proceeding u/s. 6-A of the Essential Commodities Act being Miscellaneous Case No. 29191. In the aforementioned case, the petitioners contended that petitioner No. 1 is a license bearing license No.9 of 1988. An inspection was made in the shop premises of the petitioner on or about 28.8.1990 and some amount of rice was seized as per the seizure list as contained in Annexure-l to the writ application on the ground of violation of some conditions of license, details whereof are not necessary to be stated in view of the point involved in these writ applications. Cr.W.J.C. Nos. 134 and 135 of 1990-R have been filed by the petitioners who are owners of certain trade articles and a truck bearing registration No. BBI 6861. In the aforementioned two cases, some amount of wheat was allegedly loaded on the aforementioned truck. Allegedly, it was stated by the driver that the said wheat had come from Sasaram and was required to be delivered to M/s. Ranglal Flour Mills. According to the prosecution, Ranglal Flour Mills was closed for a few months and, thus, the question of placing of any order by the said Mill for supply of wheat did not arise. 3. It was alleged that allegations of violation of the provisions of the Bihar Trade Articles (Licences Unification) Order, 1984, the aforementioned amount of wheat and the truck were seized and, thereafter, a criminal case was also instituted which is contained in Annexure-1 to both the writ applications. 4. By reason of a notice, dated 12.10.1990, the Deputy Commissioner, Ranchi directed the petitioners of the aforementioned cases to show cause as to why the seized articles as also truck in question shall not be confiscated by him in terms of section 6A of the Essential Commodities Act. For the said purpose, it appears that two confiscation cases, namely, Confiscation Case Nos. 2S-R and 28 of 1990- 91 were initiated. 5. For the said purpose, it appears that two confiscation cases, namely, Confiscation Case Nos. 2S-R and 28 of 1990- 91 were initiated. 5. In all these writ applications, a common question of law has been raised to the effect that then notification bearing No. GSR 42, dated 21st November, 1987 whereby and where under storage limit for wheat and rice was fixed has been quashed by this Court in Adityo Flour Milts Pvt. Ltd. V/s. State of Bihar and another and thus, no notification fixing storage limit for the trade are ticles in question being in existence the provisions of the said order cannot be said to have any application whatsoever and consequently the purported seizure of the trade articles as also the vehicle and the initiation of the confiscation proceeding by the Collector in purported exercise of his power conferred upon him under section 6A of the Essential Commodities Act directing the petitioners to show cause as to why the said articles and the vehicle would not be confiscated must be held to be wholly illegal and without jurisdiction. 6. By an order dated 27.10.1990, Cr. W.J.C. 130190-R was directed to be heard by a Division Bench for the purpose of considering the judgment of this Court in Aditya Flour Mills case (supra) insofar as it was held therein that the Central Government should not accord a prior concurrence by reason of a Telex message as the same pre-supposes formulation of a proper scheme of the State Government and preparation of a draft notification in relation thereto which may be approved by the Central Government In C.W.J.C. 130/9O-R, a counter-affidavit has been filed on behalf of respondent No.3. In none of these cases, any counter-affidavit was filed on behalf of the State explaining the position as to under what circumstances, the aforementioned GSR 42, dated 21st November, 1987 was issued and how the concurrence of the Central Government was obtained. 7. However, learned Government Advocate placed before us a notification being GSR No. 13, dated 23rd August, 1990 published in (1991) 1 PUR J 2 (Journal Section) which reads as follows: "GSR No. 13, dated 23rd August, 1990: In exercise of the powers conferred by sec. 3 of the Essential Commodities Act, 1955 (Act 10 of 1955) read with the orders of the Government of India in the Ministry of Agriculture and Irrigation. 3 of the Essential Commodities Act, 1955 (Act 10 of 1955) read with the orders of the Government of India in the Ministry of Agriculture and Irrigation. (Department of Food) published under GSR-452(E), dated the 25th October, 1972 168(E), dated the 13th March, 1973 and 800,dated the 8th June, 1978 and in the Ministry of Industry and Civil Supplies, Department of Civil Supplies and Co-operation, published under so 681(E) and 682(E), dated the 30th November, 1974 and with the prior concurrence of the Central Government, the Governor of Bihar is pleased to make the following amendments under Clause 3 of Bihar Trade Articles (Licences Unification) Order 1984, published under food. Supply and Commerce Department Government of Bihar. Notification No. GSR 9, dated the 19th April, 1984 in Schedule 1 of serial 18 of GSR No. 47, dated 17th October, 1985 and in sub-clauses (a) and (b) of clause 1 and clause 2 of GSR No. 49, dated the 17th October, 1985 fixing storage limit, of Trade Articles, namely: AMENDMENT 1. The following will be substituted in place of Clause 1 of the said order: Storage limit for Trade Articles (1)(a). The wholesale dealer in food grains in B class cities means a person (including pulses miller) who at a time holds stock of anyone or all types of rood-grains taken together for purchase, sale or storage for purposes other than personal consumption in a quantity exceeding 100 (one hundred) quintals but not exceeding 2,500 (two thousand and five hundred) quintals; provided that the storage limits defined for specific articles in this order shall not be crossed without prior approval in writing from Government in the Food Supply and Commerce Department: Provided further that the quantity of rice and wheat shall not exceed l,000(one thousand) quintals and the quantity of pulses of all kinds taken together whole or split shall not exceed 750 (seven hundred and fifty) quintals and other grains 2,000 (two thousand) quintals. In respect of Rice Millers the storage limit of rice at a time shall not exceed 1,000 (one thousand) quintals: Provided further that in B class cities a wholesaler can maintain at anyone time a maximum stock of limit of 1,000 (one thousand) quintals of rice and wheat or 2,000 (two thousand) quintals of other foodgrains subject to a maximum total stock of 2,500 (two thousand and five hundred) quintals as described above. (b) The wholesale dealer in food-grains in C class cities means a person (including pulsed miller) who II a time holds stock of any one or all types of food-grains taken for purchase sale or storage for purposes other than personal consumption in quantity exceeding 100 (one hundred) quintals but not exceeding 2,000 (two thousand) quintals: Provided further that the quantity of rice and wheat shall not exceed 1,000 (one thousand) quintals in urban areas and 500 (five hundred) quintals in rural areas and the quantity of pulses of all kinds taken together whole or split shall not exceed 500 (five hundred) quintals and the quantity of other grains one or all kinds taken together shall not exceed 1,500 (one thousand and five hundred) quintals. In respect of rice mills, the storage limit at a time shall not exceed 1,000 (one thousand) quintals in urban areas and 500 (five hundred) quintals in rural areas," 2. For Clause 2 of the above order the following shall be substituted namely: 2, The retail dealer of food-grains a person who at a time holds stock of any quantity of food-grains of one or all types taken together for purchase, sale or storage for purposes other than personal consumption exceeding 30 (thirty) quintals but not exceeding 100 (one hundred) quintals;" 8. Learned Government Advocate submitted that in view of the aforementioned notification, it must be held that the concerned respondent had the necessary jurisdiction to effect seizure of the trade articles and the vehicle as also initiate a confiscation proceeding. 9. In Aditya Flour Mills case (supra), the Central Government sent its prior concurrence to the State Government by a telexmessage wherein it was inter alia stated that on account of unprecedented drought in the country, the Central Government had no objection if wheat and wheat products are brought under license and stock holding limit as prescribed for wheat and rice. Pursuant to the said direction the State Government had issued the said notification bearing No. GSR 42, dated 21.11.1987 prescribing the storage limit for Roller Flour Mills and maximum storage limit for B class cities for the Flour Mills as 10,000 quintals and for C class cities as 5,000 quintals. 10. Pursuant to the said direction the State Government had issued the said notification bearing No. GSR 42, dated 21.11.1987 prescribing the storage limit for Roller Flour Mills and maximum storage limit for B class cities for the Flour Mills as 10,000 quintals and for C class cities as 5,000 quintals. 10. There cannot be any doubt that in view of the delegating notification as contained in GSR 452-E as also Clause 18(2) of the said order, the State Government can fix storage limit in respect of a trade article only upon receipt of a prior concurrence of the Central Government. In Aditya Flour Mills, case, the telexmessage, where upon reliance was placed on behalf of the State for the purpose of contending that prior concurrence of the Central Government has been received, reads as follows: "Stop on account of unprecedented drought in the country ensuring supply of food-grains to consumers at reasonable prices necessary stop apart from minimizing procurement regulatory measures to intensify food-grains dehoarding need to be taken stop Central Government has no objection if wheat and wheat products are brought under Licensing and Stock Holding Limits are prescribed for wheat and rice stop this communication be deemed the concurrence of Central Government to issue or amend relevant orders stop kindly intimate action taken urgently-Khadya Vibhag." The Court, therefore, held that the telexmessage sent by the Central Government could not have been treated or deemed to be concurrence of the Central Government for issuance of the said notification being GSR 42, dated 21.11.1987. We respectfully agree with that portion of the judgment However, in the said judgment it was held: "Therefore, it has to be decided first as to what the word "concurrence" means means the act: of concurring agreement, accord, co-operation or combination. We respectfully agree with that portion of the judgment However, in the said judgment it was held: "Therefore, it has to be decided first as to what the word "concurrence" means means the act: of concurring agreement, accord, co-operation or combination. The word "concurrence", therefore, pre-supposes existence of some scheme, some proposal or something in writing of a State Government which is required to be examined by the Central Government for agreeing or differing with the proposed scheme or the proposal which is to be issued under the provisions of the E. C. Act under the delegated powers of the Central Government to the State Government u/s. 5 of the E. C. Act" The learned Judge proceeded: "If there was no proposal no scheme or anything in writing, then it was very difficult for the Central Government to apply its mind to the proposal or the scheme mooted out by the State Government to carry out the direction of the Central Government through that telexmessage, Annexure 6." 11. In terms of the provisions of the Essential Commodities Act, 1955 , the Central Government has taken over the control in respect of the essential commodities. In terms of sec. 3 of the said Act, the Central Government is empowered to make orders for giving effect to the provisions of the Essential Commodities Act. In terms of sec. 5 thereof, however, the Central Government is authorized to delegate its power to make orders under the provisions of Essential Commodities Act to the State Government and Union Territories. By reason of a delegating notification bearing No. 451-E and 452-E and others the Central Government delegated its power to the State Government subject to the condition mentioned therein. One of the conditions was that the State Government shall fix storage limit with prior concurrence of the Central Government in exercise of its power conferred upon it In terms of the aforementioned delegating notification, the State of Bihar has framed Bihar Trade Articles (Licences Unification) Order, 1984. In view of the aforementioned condition imposed upon the State of Bihar relating to fixation of storage limit, Clause 18 (ii) of the and Order was made which reads as follows: "18. In view of the aforementioned condition imposed upon the State of Bihar relating to fixation of storage limit, Clause 18 (ii) of the and Order was made which reads as follows: "18. Restriction on possession of trade articles:- No person shall either by himself or by any person on his behalf, store or have in his possession at any time any trade article mentioned in Schedule I and Schedule II in quantity exceeding, he limits fixed: (i) ............... (ii) by the State Government with prio-concurrence of the Central Government, by issuing a notification in Official Gazette from time to time. It is, therefore, clear that the Central Government has merely delegated its power to the State with certain conditions. 12 It may, therefore, in a given situation, initiate the matter of fixation of storage limit from its side and the grant of a prior concurrence may not await the proposal made or scheme formulated by the State of Bihar. It is possible that the Central Government may direct all the State Governments and Union Territories and/or some of them to fix storage limit keeping in view the availability of certain categories of foodgrains and other essential commodities in a particular area and availability, deficiency, means of supply and other relevant factors relating to food-grains and other trade articles keeping in view the need of particular areas. 13. It would, therefore, not be correct to hold that a prior concurrence of the Central Government must be preceded by a Scheme formulated or proposal made in that regard by the State of Bihar. 14. The word "concurrence" in this view of the matter cannot be considered to have the same meaning as stated in the dictionary but must be construed for achieving the object of the Act 15. We, therefore, with utmost respect to the learned Judge express our inability to agree with the observations made in paragraphs 17 and 20 of the judgment as reproduced hereinbefore. In this case, however, in view of the notification bearing No. GSR 13, dated 23rd August, 1990 it is clear that the case of the petitioners are covered by the said notification. The validity of the said notification, dated 23rd August. 1990 is not tinder challenge. In this case, however, in view of the notification bearing No. GSR 13, dated 23rd August, 1990 it is clear that the case of the petitioners are covered by the said notification. The validity of the said notification, dated 23rd August. 1990 is not tinder challenge. In this view of the matter the seizure of the track) article as also the initiation of the confication cases as referred to hereinbefore must be held to be legal and valid. 16. In Cr. W J.C.130/90-R, the rice in-question was directed to be released to petitioner No. 1 on his furnishing security to the satisfaction of Deputy Commissioner, Palamau. Similarly in Cr. W.J.C.134/90- R, the wheat in-question which was seized in connection with Kotwali P.S. Case No. 610/90 was directed to be released to the petitioner thereof on furnishing security to the satisfaction of Deputy Commissioner. Ranchi. In Cr. W.J.C. 135/90-R the vehicle bearing registration No. BHI 6861 was directed to be released to the petitioner on his furnishing security to the satisfaction of Deputy Commissioner, Ranchi. If the trade articles and the vehicle aforementioned have been released pursuant to our interim orders. the same may continue to be released subject to the ultimate decision in the respective confiscation proceedings. However, confiscation proceedings shall continue as they have legally and validly been initiated. 17. In the result, these writ applications are dismissed subject to the directions and observations aforesaid. There will, however, be no order as to costs.