STATE Vs. JOSEPH CHACKO

JUDGEMENT

(1.) This appeal is presented on behalf of the State by the learned Advocate General. The appeal is from the order made by a single Judge of this Court in O.P. No. 42 of 1950 which was a petition filed by a cultivator for writs in the nature of certiorari and mandamus directed against the Government of Travancore - Cochin State Food Department. The prayer in the O.P. was for quashing the order made by the Government and for a direction to the Government for the return of 1618 paras of Paddy which, according to the petitioner, was illegally acquired by the Government from him. The learned Judge who heard the Original Petition recorded his conclusions in these words after quashing the order - The decisions of Government and the Civil Supplies Commissioner are modified and it is declared that the petitioner has to get 5670 paras of paddy. The petition is allowed to the above extent.

(2.) The dispute between the petitioner Respondent before us and the Government arose out of the decision of the Civil Supplies Commissioner for purchase of grain and the subsequent order made by the Government on an appeal presented by the petitioner under the Public Safety Measures Act. The facts of the case may be briefly summarised as follows. The petitioner had in 1125 cultivated 200 acres of paddy land and reaped a harvest of 14,330 paras of paddy. Out of this he parted with 5,900 paras in all in favour of the Government under procurement rules and also towards pattom payable by him to the owners of the paddy land. He retained with him 8430 paras. For the year 1126 he intended to cultivate 267 acres of paddy land. Out of this 50 acres formed part of the lands cultivated by him in the year 1125 and the rest consisting of 217 acres was land which he had not cultivated before. According to the petitioner this consisted of 48 acres of Kara nilam and 169 acres Kayal nilam. He set up a right to stock 8066 paras of paddy towards seed and cultivation expenses in respect of the 267 acres of land. The Revenue Authorities did not agree with him. The Additional Tahsildar of Ambalapuzha served a notice on him on 3.6.1950 to the effect that out of the 8430 paras of paddy in his custody, he must part with 7580 paras in favour of the Government retaining a balance of 3850 paras for domestic use and for cultivation of 217 acres of land. According to the Tahsildar the cultivator was entitled to 1350 paras in respect of the 50 acres which he had cultivated during the previous year and 2170 paras for seed in respect of the new block of 217 acres which he was going to cultivate in 1126 plus 330 paras for domestic consumption. His contention was that he was entitled to get seed and cultivation expenses for the 217 acres at the rate of 27 paras per acre of the Karanilam and 30 paras per acre of the Kayalnilam under the rules which were in force when he had taken the 217 acres for cultivation. When he got the notice dated 3.6.1950 he asked for time to file an appeal to the Civil Supplies Commissioner and for interim stay of the acquisition of the paddy. The Tahsildar refused to grant his request and opened his granary and removed 1982 paras of paddy. This is alleged to have been done in his absence. His appeal to the Civil Supplies Commissioner was rejected on 10.7.1950, but that officer made a modification of the order of the Tahsildar by allowing him full quota for an additional extent of 25 acres. Not being satisfied with the order made by the Civil Supplies Commissioner, he moved the High Court by filing O.P. No. 22 of 1950, praying for a writ to quash that order. The petition was, however, dismissed since there was a remedy by way of appeal to the Government provided in R. 16 of the Paddy Control Order. He accordingly preferred an appeal to the Government on 22.9.1950 but this appeal was rejected by the Government. He thereupon filed O.P. No. 42/1950 from which this appeal arises complaining that Government disposed of the appeal without hearing him or giving him notice of the posting of the appeal. His case was that the order of the Government was illegal and made in violation of the fundamental rights guaranteed by the Constitution of India, Part III. He contended that if the order was passed in exercise of the powers vested in the Government under the Public Safety Measures Act that Act was ultra vires to that extent and the Government erred in not disposing of his appeal on the merits and without giving him an opportunity to be heard. It was on that basis that he prayed for the issue of a writ of certiorari for quashing the order made by the Government dismissing his appeal.

(3.) The learned Advocate General invites the attention of the Court to certain errors in the order made by the Court below. For instance, in paragraph 5 of the order in referring to the Paddy Acquisition and Movement Control Order of 1950 the learned Judge says that the order came into force from the date on which it was published and that though it bears date 12th April 1950 it was published in the Gazette only on 9th May 1950. It is the date of the publication in the Gazette on which the Act can be considered as validly passed by the Government. Cl. XIII of S. 2 of the Public Safety Measures Act defines notified order to mean an order notified in the Gazette. It is clear that the date of publication as mentioned in this part of the order is incorrect. This was demonstrated by the learned Advocate General by producing a copy of the Gazette, in which the order was published. It is, however, not necessary to advert any further to the errors in the order pointed out by the learned Advocate General, because we are concerned mainly with the correctness and legality of the order. The argument that seems to have impressed the learned Judge is that the Government did not post the appeal preferred by the petitioner for hearing to any particular date and did not give him an opportunity of being heard on that date before the appeal was disposed of. It is contended on behalf of the State by a learned Advocate General that this view is erroneous because there is no provision of law which requires that an appeal presented to the Government as in the present case should be posted for disposal to any particular date or that the petitioner should be given an opportunity of arguing his appeal. It is pointed out on behalf of the State that even his Advocate who prepared the appeal and filed it, did not expect to be called upon to argue the appeal. On the other hand, on 11.8.1950 he sent a telegram to the Government to expedite the disposal of the appeal.