JADU SAH Vs. DISTRICT SUPPLY OFFICER

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution the petitioner has prayed for the issuance of an appropriate writ quashing the demand notice issued against it by the District Supply Officer, Aurangabad, as contained in Annexures 1 and 2 to the application. Annexure 1 dated 9-12-1974 is a notice to the petitioner under the Bihar Rice and Paddy Procurement Order, 1974 (hereinafter referred to as the 1974 Order) demanding delivery of 750 quintals of rice as levy from the petitioner. By Annexure 1 the petitioner had been directed to deliver it in an instalment of 200 quintals out of the aforesaid quantity of 750 quintals by the 15th of December, 1974. Annexure 2 dated 31-12-1974 was a notice from the District Magistrate and Collector, Auransabad, to the petitioner intimating to it that it had failed to comply with the notice dated 9-12-1974 and that, therefore, it was again directed to deliver the quantity required under Annexure 1, failing which the petitioner would be proceeded against under Clause 22 of the 1974 Order, as also would be liable to prosecution under the Essential Commodities Act, 1955. The petitioner challenged the validity of both Annexures 1 and 2.

(2.) The relevant facts for the disposal of this application may be shortly stated thus. The petitioner is a licensee under the Bihar Foodgrains Dealers' Licensing Order, 1967 (hereinafter referred to as the Licensing Order). Pursuant to the said licence, the petitioner acts as a commission agent in rice and paddy. According to the case of the petitioner which has not been controverted in any counter-affidavit, it does not hold any stock of its own. The stock of rice and paddy is brought by cultivators and other persons and kept in the Arhat of the petitioner. For assisting in the disposal of the said stock of rice and paddy of the persons to whom the stock belongs the petitioner gets a remuneration varying from Re. 1/-to Rs. 2/- per cent, cash on the sale proceeds of the commodity concerned. The petitioner does not carry on any business or trade in rice or paddy of its own. The petitioner's Sales Tax and Income-tax assessment are also based on its earning commission simpliciter out of the transactions between third parties in his Arhat. It has been submitted in the petition as also argued at the Bar that since the petitioner had no stock of its own nor had it a right to retain other's properties, it could not be held to be liable for delivery of any levy in respect of stocks of foodgrains belonging not to the petitioner itself but to its principal. It was contended that if it be held that a liability had been fastened on the cases of commission agents simpliciter, in which category the petitioner also came, then to that extent the 1974 Order must be held to be ultra vires the provisions of Section 3 (2) (f) of the Essential Commodities Act. These being the only relevant and undisputed facts, only two questions fell for determination in this case; firstly, whether the case of commission agents can be held to be covered by the provisions of the 1974 Order, under which they are liable to deliver lew in respect of stocks held by them not of their own but only of a third person, cultivator or otherwise, for facilitating sale to others and thereby earning a commission by way of remuneration on the transaction of sale; secondly, whether, if on the plain language of the 1974 Order the case of such commission agents be held to be so covered by the 1974 Order, such a provision is ultra vires any provision of the Essential Commodities Act.

(3.) The first question falling for determination must, in my view, be answered in the affirmative for reasons hereinafter given. The relevant portion of Clause 14 (2) of the 1974 Order reads as follows: