ORDER
1. The petitioner challenges the order dated 22-4-1975 (Annexure 3) passed by the Sub-divisional Officer, Baghmara at Dhanbad (respondent No. 3) and the appellate order dated 16-5-1975 (Annexure 4) passed by the Additional District Magistrate (Supply), Dhanbad (respondent No. 2) under the provisions of the Bihar Foodgrains (Declaration of Stock by Cultivators and Requirement to Sell) Order, 1974 (briefly the ‘Order’) and has prayed for quashing of the same.
2. The District Supply Officer, Dhanbad, along with some other officers, under the orders of the Deputy Commissioner raided the premises of the petitioner, a cultivator, on 20-2-1975 and seized about 170 quintals of paddy. Out of that, 74 quintals 69 Kgs. and 500 grams were taken away by the raiding party and the balance was left with the petitioner on his security.
3. The case of the petitioner is that he and his son (respondent No. 5) are two independent ‘cultivators’ within the meaning of the Order. In other words, the son is also a cultivator of a separate holding recorded as such in his name in the Revenue records and he pays rent for his own holding, but lives with the petitioner. His further case is that respondent No. 6 is his widowed daughter and lives with him. As she has no independent source of income, she husks the paddy of others on commission basis. It is said that about 40 to 50 quintals of paddy “brought by respondent No. 6 for converting into rice was also, at the relevant time, lying in the house of the petitioner.
4. Immediately after the seizure of paddy, the petitioner filed a representation before the Sub-divisional Officer under Clause 5 (1) of the Order for release of the seized paddy, making various claims to show that the quantity of seized paddy was much below his reasonable requirements within the meaning of Clause 4 (3) of the Order. Before, however, any order was passed on his representation, the petitioner rushed to this Court and filed Civil Writ Jurisdiction Case No. 770 of 1975. The said application was dismissed as being premature by order dated 24-3-1975 with an observation that the petitioner would move the Deputy Commissioner in appeal as provided under Clause 5. An appeal was, accordingly, filed before the Deputy Commissioner on 31-3-1975, which was numbered as Miscellaneous Appeal No. 4 of 1975. The Deputy Commissioner, however, directed the petitioner to move the Sub-divisional Officer first for redress of his grievance on the representation. A fresh representation was then filed by the petitioner before the Sub-divisional Officer, who by his order dated 22-4-1975 (Annexure 3) directed the petitioner to sell 88 quintals of paddy to the State Food Corporation at its Chas office. The petitioner then filed an appeal before the Deputy Commissioner which was transferred to respondent No. 2, who dismissed it on 16-5-1975 by the impugned order Annexure 4. The petitioner has now come up to this Court again.
5. Learned counsel appearing on behalf of the petitioner has raised several contentions, including the contention of vires of the order itself. Before, however, dealing with the bigger contention raised, it would be convenient to dispose of the
contentions regarding the correctness of the order of the appellate authority. The first contention is that respondent Nos. 2 and 3 have committed an error in treating the petitioner and respondent No. 5 as one unit of cultivator within the meaning of the Order.
Respondent No. 5 also in his counter-affidavit has claimed that he separately owns and possesses about 10 acres of land for which separate rent receipts have been issued to him. He, however, has not stated in so many words that he has been recorded as a raiyat with respect to any holding in the Revenue records. But assuming in his favour that the rent receipts are usually not granted to a person unless he is recorded as such, we feel inclined to give an opportunity to the petitioner to substantiate this part of his case by affording him and the respondent No. 5 a fresh opportunity as it appears from the impugned orders that respondents Nos. 2 and 3 have not applied their mind to this aspect of the matter. The Sub-divisional Officer (respondent No. 3) in the impugned order has observed as follows:
“Merely for the fact that some land is owned by the petitioner in his son’s name should not be an excuse to defeat the purpose of the Order.”
6. Clause 3 of the Order enjoins on every cultivator to make a declaration of the foodgrains in his possession. It provides that declaration has got to be made only by such cultivator who holds in stock one foodgrain exceeding twenty quintals in quantity or all foodgrains taken together exceeding fifty quintals in quantity. It is, therefore, manifest that if the petitioner and his son (respondent No. 5) are separate cultivators within the meaning of the Order, their liability for the declaration will be separate. In the case of Radha Krishna Thakurji v. Sub-divisional Officer, Monghyr, (C. W. J. C. No. 345 of 1975 disposed of on 19-1-1976 = (reported in AIR 1976 Pat 342), relying upon another Bench decision, we have already held that if persons are separate cultivators within the meaning of the term in the Order, the fact that the food-grains were kept together was not material.
7. Learned counsel next contended that the authorities were not right in rejecting the claim of respondent No. 6. We do not feel inclined to entertain this argument as essentially it is a disputed question of fact.
8. The next attack on the impugned orders is on the point of determination ‘reasonable requirements’ of foodgrains of the petitioner which has got to be exempted as laid down in Clause 4 (3) of the Order. It says that for the purposes of making an order under Clause 4 (1) requiring a cultivator to sell to the State Government or to its officer or agent any quantity of foodgrains, the Sub-divisional Officer shall take into consideration his reasonable requirements which have got to be determined having regard, inter alia, to ‘the quantity of foodgrains required by him for payment of wages in kind to farm labourers engaged by him’. The Sub-divisional Officer has calculated the quantity of foodgrains so required by the petitioner for payment of wages in kind to farm labourers at the rate of 45 labourers per acre for all the 17 acres, i.e., the total acreage claimed by the petitioner and his eon (respondent No. 5) together and further allowing 2 Kg. of paddy per labourer as wages. On this account, the Sub-divisional Officer has calculated the total requirement of the petitioner at 15.30 quintals of paddy. Learned counsel challenges the rate of wages allowed to the labourers. According to him, it should have been at the rate of 4 Kg. 500 grams of rice for every adult labourer. He has referred to us in this connection Notification No. VI/ W3-1073/73 L & E 259 dated 17-12-1974 issued by the Government of Bihar under the provisions of the Minimum Wages Act, laying down the rates of minimum wages. Learned counsel appearing for the State states that the petitioner was entitled to the above rates of paddy and rice for payment of wages in kind to the farm laourers engaged by him. In this view of the matter, it is apparent that the reasonable requirements of foodgrains of the petitioner determined by the Sub-divisional Officer is not in accordance with the aforesaid notification. When the matter goes back to the Sub-divisional Officer, he will compute the reasonable requirements of the petitioner on this account, keeping in view the above rate in relation to payment of wages in kind to the farm labourers engaged by the petitioner.
9. We, accordingly, feel inclined to remit back the case to the Sub-divisional Officer (respondent No. 3) for re-determination of the two matters indicated above and to pass a fresh order after taking into consideration the case of respondent No. 5 and affording him an opportunity to prove as to whether he is a cultivator within the meaning of the Order, and then to pass fresh order in terms of Clause 4 (1) of the Order, if on fresh computation, the petitioner is found to be liable to sell any quantity of food-grains to the’ State Government or its nominees. So far as the finding of the Sub-divisional Officer with respect to the requirements of the petitioner under the other heads of Clause 4 (3) of the Order is concerned, we do not find any error in the same.
10. Now remains a legal question that was argued with some strain by the learned counsel for the petitioner, and that is that the Order in question is itself ultra vires, for the following reasons:–
(1) It has not been laid before both the Houses of Parliament, as envisaged under Section 3 (6) of the Essential Commodities Act;
(2) It has not been made with the prior concurrence of the Central Government; and
(3) The Order being a subordinate legislation, is hit by the vice of arbitrariness,
We shall take each of the above points in seriatim.
11. Section 3 (6) of the Essential Commodities Act provides that every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made. The argument is that the impugned order, although it was made on 28-8-1974, has not been laid before the Parliament as required under the aforesaid provisions of the Essential Commodities Act, and, therefore, it must be, struck down. It is not possible to accept this argument as in our opinion the provision contained under Section 3 (6) is simply directory in its nature, and not mandatory. It applies only to orders made by the Central Government or any of its officers or authorities whose orders shall be laid before Parliament, and not the orders made by the State Government, or authorities subordinate to it. The argument, therefore, is not available to the petitioner on the face of the provision itself. Apart from this, no consequences have been indicated in this provision which are to follow on the failure of the order being not laid before the Parliament Even if it could be held that Section 3 (6) is applicable to an order made by a State Government,
its violation would not render the impugned order invalid. We, therefore, reject the first contention.
12. Coming to the second conten-tention, the notification states that this Order was being made by the Governor of Bihar in exercise of the powers conferred by Section 3 of the Act read with the Government of India, Ministry of Agriculture (Department of Food) Order Nos. G.S.R. 316 (E), dated the 20th June, 1972, and G.S.R. 452 (E), dated the 25th October, 1972, and with the prior concurrence of the Central Government. Counsel simply referred to us the earlier G.S.R. 316 (E), dated the 20th June, 1972, but could not place before us the subsequent G.S.R. 452 (E), dated the 25th Oct. 1972, and the Court has not been told as to what were the conditions imposed by the Government of India to make an Order of the nature in question. It is true that in the earlier G.S.R. dated the 20th June, 1972, there is a condition that prior concurrence of the Government of India was necessary for the Government of Bihar to make any Order, but the notification issuing the Order in question itself states that prior concurrence of the Central Government had been taken. The statement made by the petitioner challenging the Order in question has been made in paragraph 40 of the writ application and it has been stated that the said statement is ‘to the best of his information’. This statement, in our opinion, is too vague and indefinite for taking a view that the statement made in the preamble of the notification was incorrect and on this account the Order has been made in excess of the delegation and, therefore, beyond its competence.
13. Now remains the last contention. Being confronted with the fact that on account of the promulgation of Emergency on the 26th June 1975, the right of the petitioner, if any, based on the infraction of the safeguards contained under Article 14 of the Constitution is suspended, learned counsel advanced two arguments. Firstly that the Order was made before the promulgation of the emergency, and, secondly, that the question was available to the petitioner without taking the aid of Article 14 of the Constitution. The first point that the Order was enforced earlier and, therefore, the promulgation of emergency will have no bearing or will not stand in his way has got no substance and is wholly misconceived as the promulgation of the
emergency suspended all the existing right on the date of the proclamation. The second point is sought to be based upon a Bench decision of the Allahabad High Court in Mukhtar Singh v. State of U. P. (AIR 1957 All 297). We have examined the Allahabad decision and we do not find that the same lends any support to the petitioner’s contention. It was observed in this case that under the Indian Constitution except as provided in Article 15 of the Constitution there is no general limitation on the power of the Legislature that it will not enact a law contrary to the principles of natural justice. The learned Judges on reference to the American Constitution under which the Union and the State Legislature are forbidden to enact laws affecting the life, liberty or property of individuals except in accordance with the due process of law, which in its turn includes principles of natural justice, observed that this doctrine has not been adopted by the Indian Constitution save in certain cases where its principles have been expressly enacted in the Constitution, itself, and by that they meant Article 14 of the Constitution. We do not, therefore, find any force in the last contention of the learned counsel that the question of reasonableness of the Order is free from the fetters of Article 14 and can be tested aliunde which presently stands suspended. Any contrary contention would defeat the very purpose of declaration of the emergency.
14. Before parting with this case, we may also indicate the foundation of the argument of unreasonableness. It was made upon the provisions of Sub-clause (3) of Clause 4 where it has been provided that the reasonable requirements of foodgrains of a cultivator shall be determined having regard to four elements; namely:
(i) the total area of land cultivated by him;
(ii) the quantity of foodgrains required by him for consumption by himself, his family, his dependents and servants, up to the next harvest;
(iii) the quantity of foodgrains required by him for seed purposes; and
(iv) the quantity of foodgrains required by him for payment of wages in kind to farm labourers engaged by him.
The contention was that the reasonable requirements of foodgrains of a cultivator does not take into consideration
various other factors and processes which are indispensable for any agricultural operation, such as, costs on irrigation, inputs, implements and payment of various taxes and the like and, therefore, while computing the liability of a cultivator to sell the excess quantity of foodgrains beyond the reasonable requirements to the State Government or its nominees, the discount which has been permitted to be made from his produce omits the various relevant factors which should have been taken into consideration while determining the excess quantity of foodgrains which a cultivator should be called upon to sell, and in this view of the matter, the Order is unreasonable and arbitrary.
15. We do not find any substance in this argument. This Order was made by the State Government as a socio-economic measure for carrying out the objects of the Essential Commodities Act in the general interest of the public to provide a fair and equitable distribution of rice and for controlling the rise in prices and hoarding by big cultivators. Exemption of 20 quintals of foodgrains of one kind and 50 quintals of all the food-grains taken together to a cultivator gives him a reasonable relaxation and the sale of the excess quantity, after a further set off of his reasonable requirements determined with respect to the primary burdens, cannot be said to be arbitrary. We, therefore, do not find any force in this contention that the Order is ultra vires or suffers from any of the vices on which it can be struck down.
16. Before concluding we would like to observe that Mr. Choubey appearing for the petitioner who raised the contention regarding the vires of the Order, which we have discussed above, argued it in a most casual manner, without any citation or proper assistance to us. And so was the case of the learned counsel appearing for the State. However, we have given our anxious consideration to the question raised and have reached the conclusions recorded earlier on examining the question from all possible angles.
17. For the reasons discussed
above, we would allow this application in part and the impugned orders contained in Annexures 3 and 4 passed by respondents Nos. 3 and 2 respectively are hereby quashed and cancelled to the extent indicated above and the matter is remitted back to the Sub-divisional Officer, Baghmara at Dhanbad (respondent No. 3) for a fresh decision, in accordance with the directions and observations given above. In the circumstances of the case, there will be no order as to costs.