B SUNDARESAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This batch of 10 Original Petitions are filed questioning the constitutional validity of several of the provisions of the Kerala Raw Cashew Nuts (Procurement and Distribution) act, 1981 (Act 14/81), hereinafter referred to as 'the Act'. In O.P. Nos. 3267, 1364 and 6080 of 1994, the validity of the entire Act is challenged, and it is claimed that the entire Act should be struck down. It is contended that if several of the provisions which are unconstitutional are struck . down, the remaining portion of the Act cannot stand. Hence the entire Act has to be declared as unconstitutional and invalid. In O.P. Nos. 3545/90, 1704/91 and 1.2189 of 1994, the main attack is against certain provisions of the Act which are considered to be arbitrary and unconstitutional. There is also a prayer to declare the entire Act as invalid and ultra vires the provisions of the Constitution. In O.P. No. 9506/92 the attack is against the constitutionality of S.4,5,19,20, and 25 of the Act, In O.P. No. 4230 of 1994 the prayer is to declare S.3 to 5, 15,19, 20 and 25 as unconstitutional. In the alternative for a declaration that S.4 and 15 are not applicable to cashew cultivators. In O.P. No. 12509 of 1994, the prayer is that the entire Act is unconstitutional and that S.3 to 5 are bad as they impose unreasonable restriction in an arbitrary manner.

(2.) Before we go into the various contentions it would be pertinent to give the historical development of the law, which is now being challenged.

(3.) In 1976, the State of Kerala promulgated Kerala Raw Cashew Nuts (Marketing and Distribution) Order of 1976. It was done under the powers conferred by the Defence and Internal Security of India Rules, 1971. Subsequently after the Defence of India Rules were withdrawn in 1977. the 1976 Order was cancelled, and the State then issued a declaration that cashew nut is an essential article under clause (2) of S.2 of the Kerala Essential Article Control (Temporary Powers) Act, 1961. Then the State Government issued Kerala Raw Cashew Nuts (Procurement and Distribution) Order, 1977. The 1977 order was challenged in the Supreme Court and in the decision reported in K. Janardhan Pillai v. Union of India, AIR 1981 SC 1485 delivered on 23.1.1981 the Supreme Court held that the raw cashew nut is a food stuff within the meaning of. S.2(a)(v) of the Essential Commodities Act and hence it cannot be declared as an essential article under S.2(a) of the Kerala Act. Consequently no order can be passed by the Government of Kerala under S.3 of the Kerala Act in respect of raw cashew nut. The court held that the action of the Kerala Government is beyond the power conferred on it by the Kerala Legislature. Accordingly, the declaration was quashed. While quashing the declaration, the Supreme Court made some observations in Para.30 to following effect: