NARESH CHANDRA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) WHAT is under challenge in this application under Article 226 of the Constitution is certain provisions of the Assam Paddy and Rice Procurement (Licensing and Levy) Order, 1980 (hereinafter called the Levy Order). Memo No. KPS/70 dated 5th December, 1980, issued by the Sub-Divisional Officer, Kokrajhar (Annex-D to the petition) has also been assailed.

(2.) THE petitioners are the Kokrajhar Sub-Divisional Small Scale Rice, Oil and Atta Chaki Mills Association, and its Secretary. The Association represents basically the huller rice mills of the Sub-Division. They have felt aggrieved it the demand of levy from them and on being asked to obtain the dealing licence under the Levy Order. According to the Association, its members who are the owners of the mills have been carrying on the business known as 'custom milling', which connotes the idea that the husk the Paddy brought by the customers on payment of certain service charge. The petitioners state that the owners do not stock any Paddy of their own. These factual averments have been controverted in a way by the respondents. I am not inclined for the present case to go into the correctness or otherwise of the facts alleged in the petition. I would confine myself to the legal question as to whether the husking mill owners can be called upon to deliver levy as required by Clause 11 of the Levy Order, or to obtain permit visualised by Clause 16, assuming that the facts stated by the petitioners are correct.

(3.) COMING to the Levy Order, the two provisions assailed are Clauses 11 and 16. So far as levy is concerned, it is really Clause 11 which hits the petitioners or the members of the Association, but Clause 16 has also put a fetter on their power. The submission of Shri Das relating to Clause 16 is that it is prohibitory in character and is hit by Article 19 as well as Article 14. having conferred unguided and arbitrary powers. According to the learned Government Advocate, this clause is regulatory in character and a guidance can be read from the purpose which had led to the promulgation of the Levy Order. The requirement of permit may be either regulatory or prohibitory. All would depend upon the conditions which have to be satisfied for obtaining a permit. In the case at hand it is not necessary, according to me, to go into this aspect as I am satisfied that Clause 16 does not contain any guidance as to when a permit can be granted or, for that matter, refused by the Deputy Commissioner. A perusal of the Levy Order would show that as for obtaining dealing licence care had been taken to say as to what matters are to be taken into considerations, what would be the period of validity, when can such a licence be suspended or cancelled, etc., but nothing had been said about the permit visualised by Clause 16. Learned Government Advocate has referred to Chandra Kanta Saha v. Union of India, (1979) 1 SCC 285 : (AIR 1979 SC 314). In that case, Section 6 of the Rice Milling Industry (Regulation) Act, 1918, was attacked on the ground that it did not contain any guidance as to when a licence would be granted or refused inasmuch as nothing had been stated in the section about this. This contention was repelled inter alia because it was found on the reading of sub-section (3) that the Licensing Officer had no discretion in the matter, but had a mandatory duty to grant a licence. I do not think if the same can be said about Clause 16 as it exists, though that was the submission of the learned Government Advocate. The purpose of asking for a permit may be good, which according to the learned Government Advocate is to know as to who are the persons who are undertaking custom milling, but as it has sought to prohibit altogether custom milling without having a permit, it was incumbent on the part of the authority issuing the Levy Order to have spelt out is to under what conditions a permit would be granted and when it can be rightly refused. The fact that the petitioners have not said that anybody had been refused a permit cannot by itself be a ground to sustain the validity. Reference was made in this connection by learned Government Advocate to Hari Shankar Bagla, AIR 1954 SC 465. There in paragraph 8 it was observed that the appellants had never applied for permits and made no efforts to obtain one, but it had been observed later on in the same para that the appellants were transporting essential goods by rail without a permit and only when they could get any relief is by attacking the section which obliges them to take a permit. This is precisely what has been done in the present case. On the language of Clause 16, I would not entertain any doubt that a wide, uncontrolled power has been given. Even if one were to read a policy behind the Levy Order, it is apparent that while trying to implement the policy untrammelled and uncanalised power cannot be conferred. This is what has been stated in Hari Chand Sarda v. Mizo Distrct Council AIR 1967 SC 829, to which my attention has been invited by Shri Das.