GANGADHAR SADHASHIORAO WATANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner in both these petitions are agriculturists and cultivators in the Vidarbha region of the State of Maharashtra and according to them they solely depend upon agriculture f or their maintenance and livelihood. The petitioners in these cases have tendered their cotton at the cotton centers as per the pervasions of the Maharashtra Raw Cotton (procurement Processing and Marketing) Act, 1971 referred to hereinafter as the Act. It is contended by them that they were entitled to receive 80 per cent of the guaranteed price for the quantity of cotton tendered by them and the cotton tendered by them and the action of the respondents incorporated in Government resolution dated 28th December, 1974 providing revised mode of payment to the cotton tenderers under the scheme, and the provision of Section 25, 26 and 27 of the Act, depriving them of their right to get 80 per cent guaranteed price in lump-sum is violate of their fundamental right under Article 31 of the Constitution of India. It was also contended by the petitioners that Section 25 to 27 of the Act, as amended, are also violative of their fundamental right under Articles 14 and 31 of the Constitution of India. as the cotton tendered by them in being acquired by the state without payment of reasonable compensation. It was also faintly argued before us that the said provisions are contrary to the basic objects of the Act itself. A contention was also raised on behalf of the petitioner that the Government order issued under Section 25 of the amended Act dated 28th December , 1974 is bad in law, it being retrospective in operation. For this purpose a reference was made to clause 4 and to clause 7 of the said order. Shri Manohar, the learned counsel for the petitioners in Special Civil Application No. 2123 of 1974 , further contended that the order issued by the Government dated 28th December , 1974 beyond the scope of Section 25 itself as no provision has been made in the said order for payment of interest for an intermittent period. namely, the period between the point of time, the cotton is tendered and the amount is actually deposited in the Bank. For this purpose he has drawn our attention towards the averments made in para , 10 of the return filed on behalf of the respondent No. 1, wherein it was admitted that though the date of tender of cotton was 12th December 1974, the amount was credited in the Bank account on 18th December 1974., and therefore the petitioner are deprived of their property, namely, the cotton, without any compensation. Therefore, in substance, the petitioners in Special Civil Application No. 2123 of 1974 have challenged the provisions of S. 25 of the Act as well as the order issued thereunder by the State Government on the ground that it is violative of their fundamental right guaranteed under Article 31 of the Constitution of India. It is also contended that the order issued by the Government under Section 25 of the act is bad in law, it being retrospective in nature and beyond scope of Section 25 of the Act.

(2.) Shri Holey, the learned counsel for the petitioners in Special Civil Application No. 2084 of 1974, contended before us that there is no nexus between the emergency declared under Article 352 of the Constitution of India and the present legislation, and therefore, the petitioners are entitled to challenge the present enactment on the ground that it is violative of the petitioners fundamental right guaranteed under Article 19 of the Constitution of India. it is contended by the learned counsel that under the Constitution two distinct and separate provisions are made for declaration of emergency, Article 352 of the Constitution confers a power upon the President to declare emergency if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whereas Art. 360 confers a powers upon the President to declare emergency if he is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened. Therefore, according to the learned counsel, to the present legislation the provisions of Article 358 are not applicable . According to the learned counsel as Article 360 appears on the statute book after Article 358 it is not applicable to a legislation which is based on financial stringency or paucity of funds. He further contended that the present legislation, namely, the Maharashtra Raw Cotton (procurement , Processing and Marketing) Act, 1971 and in particular Maharashtra Ordinance No. XXIII of 1974 has been promulgated providing a mode of payment of the advance price because of financial stringency of paucity of funds. According to the learned counsel, the present legislation has, therefore no nexus with the emergency declared under Article 352 of the Constitution and hence it is open for the petitioner to challenge the said legislation on the ground that it is violative of the petitioner's fundamental right guaranteed under Article 19 of the Constitution.

(3.) In our opinion, the contention raised by Shri Holey needs to be mentioned only for being rejected. Art. 358 of the Constitution deals with the suspension of provisions of Article 19 during the emergency. It is not open for this Court to go behind the proclamation. Only because Article 360 appears in the Statute book after Article 358, are not applicable to a legislation providing for the mode of payment of advance price due to financial stringency of paucity of funds. The protection given by Art. 358 to a legislation made during the subsistence of emergency is a blanket protection. This Court has considered this aspect of the matter in detail in Rajaram v. State of Maharashtra (1973 Mah. LJ 813) while dealing with the present legislation itself. In view of this in our , opinion, it is not open for the petitioners to challenge e the present legislation on the ground that it is violative of their fundamental right guaranteed under Article 19 of the Constitution of India. In all fairness to Shri Manohar, he has not adopted this part of the argument of Shri Holey.