HUKUMCHAND AGARWAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Following question has been referred by one of us (Shukla, J.) for opinion.

(2.) Brief facts as stated in the order of reference are as follows :- On 18-4-1980, Dy. Collector Raigarh inspected the shop and godown of the applicant at Gharghoda and reported certain irregularities. Collector, Raigarh issued a notice under section 6-B of the Act to the applicant in respect of alleged irregularities. Not beirig satisfied with the explanation submitted by the applicant, he passed an order dated 26-2-1981 confiscating the entire stock of rice and wheat under section 6-A of the Act for contravention of clause (3) of the M.P. Food Grains Dealers Licensing Order, 1965. The applicant filed an appeal before Sessions Judge, Raigarh under section 6-C of the Act. The learned Sessions Judge by order dated .3-11-1982 set aside the order of confiscation passed by the Collector and remanded the case to him for recording evidence on the question whether 19 quintals of wheat was the produce of applicant's cultivation or not. The Collector after recording evidence passed an order dated 4-4-1984 holding the applicant guilty of contravention of section 3(iii) of the Act and ordered confiscation of 19 quintals of wheat. The applicant appealed against the order of confiscation dated 4-4-1984 before Sessions Judge, Raigarh. Learned Sessions Judge held that by virtue of the Essential Commodities (Special Provision) Act of 1981 (No.18 of 1981) appeal against the order of the Collector lay only before the State Government and the appeal before the Court of Sessions Judge was incompetent. On merits also he held that the applicant was unable to prove his case that the wheat was the produce from his own agricultural land.

(3.) In view of the conflicting decisions of the Full Bench of the Gujarat High Court in H. N. Bhavsar v. State of Gujarat 1976 Cri LJ 84 and of the Patna High Court in Ram Beyas v. State of Bihar 1977 Cri LJ 28 it was thought necessary to get the matter resolved by a larger bench. The Essential Commodities (Special Provisions) Act 1981 was published in Gazette of India on 2-9-81. Section 5 of this Act amended section 6-C of the Essential Commodities Act, 1955 (the Principal Act substituting the State Government concerned; as the appellate authority in place of the judicial authority which in this State was the Sessions Judge.) In Garikapati Veerava v. N. Subbaiah Choudhary, AIR 1957 SC 540 it was held that the right of appeal is a substantive right and the institution of the proceedings carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment. In the cited case the question about the forum had not arisen but on an interpretation of Articles 133 and 135 of the Constitution of India it was held that if on the basis of valuation of the suit the appeal against the judgment of the High Court lay to the Federal Court at the time of the institution of the suit, then even after abolition of Federal Court on coming into force of the Constitution of India, the party had a right, notwithstanding different requirements under Article 133 of the Constitution, to file an appeal before the Supreme Court in accordance with the law as it stood when the suit was filed. It was observed that this right of appeal on conditions as they stood on the date of the institution of the suit had not been taken away either expressly or by necessary intendment by the Constitution of India.