SHANKAR PRASAD BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY this application under Articles 226 and 227 of the Constitution of India, the petitioners pray firstly that criminal proceeding pending against the petitioners in O. C. R. case No. 263 of 1973 of the Court of the Sub -divisional Magistrate, Sahabganj, in which he has taken cognisance against the petitioners, for offences under Sections 379/409, Indian Penal Code and section (wrongly referred to as rule in the impugned order) 16 of the Bihar Kendu Leaves (Control of Trade) Ordinance - Bihar Ordinance No. 119 of 1973 - hereinafter referred to as 'the Ordinance', by his order dated 11th of September, 1973 (annexure -11 to the writ application) be quashed and respondents be directed to forbear from enforcing the provisions of the Ordinance or in any manner demanding from petitioner No. 1 any amount in excess of the price of the Kendu leaves actually supplied. The aforesaid cognisance in O. C. R. case No. 263 of 1973 was taken on the basis of petition of complaint dated 10th of September, 1973 (annexure -10 to the writ application). It appears that another case O. C. R. No. 262 of 1973 was also pending against the petitioners from before. Therefore, a prayer has also been made in this application for a direction to the respondents forbearing from proceeding against the petitioners in O. C. R. case No. 262 as well.

(2.) SO far as the prayer of the petitioners for a direction to the respondents for forbearing from demanding from petitioner No. 1 any amount in excess of the price of Kendu leaves actually supplied is concerned, that has not been seriously challenged by the respondents. The relevant rules framed under the Ordinance had to be considered in C. W. J. C. No. 114 of 1974 (Pat) which was dismissed in limine on 2nd of February, 1974, by the learned Chief Justice and N.P. Singh, J. In that case the stand of the State of Bihar itself was that according to the rules a person submitting a tender was required to pay earnest money and to deposit security money, that he would be required to pay full price of the bags before their removal, that on final accounting if it was found that total number of bags collected and removed were more than 75% of the estimated quantity, then the person would be required to pay the actual price of the quantity and not more, that if, however, on final accounting it was found that the total number of bags collected and removed were less than the 75% of the estimated quantity, then the person concerned would have to pay the minimum price of 75% of the bags estimated to be the produce and that on final accounting the earnest money and security money deposited would be adjusted. It has not been contended before us on behalf of the State that this interpretation of the rules was not correct. Therefore, before the stage of final accounting has reached, the petitioners cannot be asked to pay any amount in excess of the price of Kendu leaves actually supplied. The application must, therefore, succeed in respect of this relief.

(3.) IT may not be necessary for the decision of the case to refer to in detail the case of the parties as made out in the writ application, the counter -affidavit filed on behalf of respondent Nos. 1 and 2 and the rejoinder of the petitioners to the said counter -affidavit. Shortly stated, the case of the petitioners is that they have committed no offence. According to them, permit was wrongly refused to petitioner No. 1 on the ground that he had not deposited the entire royalty for the 75% of the total estimated quantity and that Kendu leaves which, according to the respondents, have not been accounted for by petitioner No. 1, became rotten and had to be thrown away. It is the further case of the petitioners that the Ordinance and the rules made thereunder are ultra vires the Constitution as they put unreasonable restrictions on the petitioners' fundamental right of trade and business. Petitioner No. 2 also asserts that he had nothing to do with the business of Kendu leaves of petitioner No. 1 and has been unnecessarily roped in this case. In the counter -affidavit of respondents Nos. 1 and 2 these allegations have been challenged and denied.