BHANWARILAL SETHIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN the instant writ petitions, the vires of the West Bengal Rice whole-Salers (Levy) Order, 1982, and in particular, paragraphs 3 and 4 of the same have been challenged. The petitioners have also challenged the legality and validity of the impugned Order/memo No. 1497 (80)F. P. dated 9th November, 1982 issued by director of District Distribution, Procurement and Supply, Government of West bengal, which is annexure 'c to the writ petition in C. 0. No. 12457 (W) of 1982 by which it has been directed inter alia that no rice Mill can open any purchasing centre for purchase of paddy unless the purchasing centres are approved by the District controller with the prior approval of the deputy Commissioner or the District magistrate of the concerned district.

(2.) THE petitioners are owners of different rice Mills situated at different parts of West bengal and each of them has a valid licence under the Rice Milling Industry (Regulation)Act and has also Licences under the West bengal Rice and Paddy (Control) Order, 1967. The petitioners contend that the government of West Bengal and also the government of India have not published and/or fixed any control price for purchase or sale of the paddy either in the State of west Bengal or in any other locality. Accordingly, there is no control price of paddy in the open market within the State of West Bengal. The petitioners contend that the price of the paddy is controlled in the open market according to the demand and supply and it varied in the current year from Rs. 170/- and Rs. 220/- per quintal when the writ petitions were presented before this Court. The petitioner in Civil order No. 12457 (W) of 1982 has annexed one of the purchase voucher being Annexure 'a' to the writ petition showing the price of the common variety of Annan paddy in November, 1982. The Government of west Bengal in exercise of the power under section 3 of the Essential Commodities Act, in particular sub-section (3b) of the said act promulgated an order known as the west Bengal Rice Mills (Control and Levy)Order, 1982 and the said order was also published in the Calcutta Gazette, Extra-Ordinary on the very same day. It appears from the said order that the said order extends to the whole of West Bengal and it comes into force at once. The order is scheduled to expire on 31st October, 1983. Under the said Rice. Mills (Control and levy) Order, 1982 (hereinafter referred to as the Levy Order) certain restrictions and / or conditions have been imposed on the rice Mill in the matter of purchase of paddy and sale of rice within the State of West bengal and the purpose of the said order has been mentioned as for equitable distribution and availability of Rice at a fair price.

(3.) THE 'licensed miller' under the said Levy order has been defined under paragraph 2 (e) as the owner of a Rice Mill within the meaning of clauses (g) and (i) of section 3 of the Rice Milling Industries (Regulation)Act, 1958 duly licensed under the provisions of that Act and duly authorised by licence or otherwise under any law for the time being in force to purchase paddy and sell rice. The petitioners are licensed dealers as they satisfy the conditions laid down under paragraph 2 (e) of the Levy order. The 'rice" as defined under paragraph 2 (g) of the Levy Order means rice produced or manufactured with the aid of power out of paddy and includes broken rice but does not include 'chira', 'muri' or 'khoi' and rice of the fair average quality means rice generally of the quality indicated in Schedule 1 containing admixture of impurities within the tolerance limits. Paragraph 3 of the Levy Order provides that every licensed miller shall sell to the Food corporation 40 per cent of the quantity of rice procured or manufactured every day in any Rice Mill from the date of commencement of the order out of paddy owned by him. It has also been provided that no rice sold under Sub-paragraph (1) shall contain admixture of impurities exceeding the rejection limits specified in column (4)in the Schedule 1 and such price shall be delivered to and paid for by the Food Corporation at the appropriate procurement price specified in paragraph 4. For the purpose of calculating the quantity of rice saleable under sub-paragraph (1), a quantity of paddy shall be deemed to yield rice at the rate not lower than the rate of extraction specified in Schedule II in respect of different areas and for different types, varieties and grades of rice. Provided that the Government may, by notification in the official gazette, vary or amend the rate in respect of any area or for any type, variety or grade of rice. Provided further that the percentage of rice saleable under sub-paragraph (1) shall not be increased or decreased without the prior concurrence of the central Government. Under paragraph 4 of the Levy Order, the procurement price for different varieties of rice has been laid down. The paragraph 4 reads as follows :-