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Judgment
S.H.A. Kaza, J.—While hearing writ petition No. 1333(MB)/1996, the record of writ petition No. 48(MB)/1996 was called for. Para 1 to 36 of writ petition No. 1333(MB)/1996 are mere reproduction of paras 2 to 37 of W.P. No. 48(MB)/1996. Para 38 of W.P. No. 1333(MB)/ 1996 is similar to Para 38 of W.P. No. 49(MB)/ 1996. A counter-affidavit has been filed on behalf of the respondents in W.P. No. 48(MB)/96. On the statement given at bar, learned standing counsel stated that in W.P. No. 1333(MB)/1996, the counter-affidavit filed in W.P. No. 48(MB)/1996 be also read.
In view of the aforesaid facts, both me writ petitions were heard together and judgment was reserved.
In both the writ petitions, the petitioners have prayed for quashing of the Govt. Order dated 8-9-1995, issued by the State of U.P. They also prayed for the issuance of a writ in the nature of mandamus declaring clause 1(4) of the notification dated 28-9-1995 ultra vires 10 the Constitution of India and to issue a release certificate to the petitioners in respect of the rice produced upto 30-9-1995 without insisting for the delivery of levy on the rice.
Relief sought for in the aforementioned writ petitions, itself indicate that it pertains to rice levy. Earlier for the Kharif year 1994-95, an exemption was granted on the levy of the rice vide notification dated 31-5-1995, Kharif year starts from 1st October and ends on 30th September of the following year; meaning thereby that the exemption was granted with effect from 31-5-1995 to 30-9-1995. At the start of the Kharif year 1995-96, by means of the notification dated 28-9-1995, rice millers were directed to pay the levy on rice in respect of stock of rice held by them at the mid night of 30-9-1995/1-10-1995. It was further provided in the said notification that the rice millers were liable to pay the levy on rice produced by them with effect from 1-10-1995 onward.
During the currency of the Kharif year 1995-96, levy on rice is procured on the basis of U.P. Rice and Paddy (Levy and Regulation on Trade), Order, 1985 (hereinafter referred to as the Levy Order, 1985), which was promulgated by the State of U.P. under S. 3 of the Essential Commodities Act, 1955, on the basis of the delegation of power to the State Government by the Govt. of India under S. 5 of the Essential Commodities Act vide G.S.R. No. 800 dated 9-6- 1978.
Clause 25 of the Rice Levy Order, 1985 empowers the State Government to issue supplementary provisions for the appropriate implementation of the Rice Levy Order, 1985. It is submitted that at the start of every Kharif Year, the supplementary provisions are issued by the State of U.P. through the notification for the appropriate implementation of the provisions of the Rice Levy Order during the period for which they are issued. It is submitted that for the Kharif year 1995-96, the supplementary provisions were issued vide Notification dated 28-9-1995. The notification dated 28-9-1995 is issued under clause 25 of the Rice Levy Order, 1985.
Clause 24 of the Rice Levy Order, 1985 envisaged for the grant of exemption from levy on rice but the condition is that the State Government can grant exemption only on having the prior concurrence of the Central Government.
The notification dated 31-5-1995 by which the exemption was granted from Levy on Rice was for the remaining period of Kharif year 1994-95 and it was issued by the State Government under the said Clause 24 of the Rice Levy Order after having prior concurrence of the Central Government which was granted by letter dated 18-3-1995.
Clause 1(4)of the Notification dated 28-9-1995 had provided for the levy on stock of rice held at the mid night of 30-9-1995/1 -10-1995 and on the production of rice during the currency of Kharif year 1995-96.
The petitioners in these writ petitions have challenged the levy on stock held by them at the mid night of 30-9-1995/1 -10-1995 on the ground; (a) stock of rice held by them at the mid night of 30-9-1995/1-10-1995 is of that rice which was produced prior to the mid night of 30-9-1995, and (b) that the said rice being produced prior to mid night of 30-9-1995 was exempted from levy on rice on account of fact that vide Notification dated 31 -5-1995 there was exemption on production of rice for the remaining period of Kharif year 1994-95 i.e. from 31-5-1995 to 30-9-1995 (c) that the State Government is bound by the principle of promissory estoppel and so it cannot impose levy on the stock held by the petitioners at the mid night of 30-9-1995/1-10-1995.
The petitioners have challenged the levy on rice on the production during the currency of Kharif year 1995-96 on the ground that the position of rice was very sound in the country and the FCI godowns were full of rice, and there was no need of rice in the Central Pool.
The petitioners have also challenged the levy on rice on the ground that the levy on rice violates the fundamental rights guaranteed to them under Art. 19(1)(g) of the Constitution of India.
Entry 126 of 9th Schedule of the Constitution of India deals with the Essential Commodities Act, 1955 (Central Act 10 of 1955). Rice Levy Order, 1985 as well as its supplemental provisions of clause 25 of the said Order, are issued under Essential Commodities Act. In view of the aforesaid reason, the validity of the levy Order, cannot be challenged on the ground of violation of Arts. 14 and 19 of the Constitution. Rice Levy Order, 1985 and its supplemental a revisions are immune from challenge under Arts. 14 and 19 of the Constitution. Hence, any order for the implementation of the said order, i.e. procurement of levy on rice, too, cannot be challenged on the ground that it infringes, the provisions of Arts. 14 and 19 of the Constitution of India for the simple reason that the Rice Levy Order, 1985 has been issued on the basis of the statutory and legislative power under S. 3 of the Essential Commodities Act. Supplemental provisions issued under clause 25 of the Levy Order, 1985 are also statutory piece of legislation for the simple reason that it was issued under an Order, which is statutory piece of legislation. Hence, notification dated 28-9-1995 laying down the supplemental provision for the Kharif year 1995-96 to derive its power under the statute, itself, which is legislative in nature.
Notification for the grant of exemption from levy on rice, which was issued under clause 24 of the Rice Levy Order, 1985 also derives its power and authority from the Statute. The notification dated 31-5-1995, by means of which the exemption from levy was granted for the remaining period of Kharif year 1994-95 would be deemed to be a piece of legislation.
In Kasinka Trading and another, etc. etc. Vs. Union of India and another, : Kasinka Trading and another, etc. etc. Vs. Union of India and another, more or less similar question cropped up before Hon''ble Supreme Court, wherein a notification was issued u/s 25(1) of the Customs Act by means of which certain goods were exempted from basic import duty. The notification specified a dale up to which the exemption would remain in force. But prior to the expiry of the date, another notification was issued under the same provision i.e. Section 25 of the Customs Act, in public interest withdrawing the exemption and instead, imposing the Custom duty on import. As the Government successfully satisfied the Court with regard to the public interest involved in withdrawing the exemption, Hon''ble Supreme Court indicated that no unequivocal representation or promise was extended by merely specifying the period of operation of the exemption notification so as to attract the doctrine of promissory estoppel. Hon''ble Supreme Court held that the Exemption u/s 25 is not in the nature of any incentive and has the effect of only supending levy and collection of customs duly and can be revoked or withdrawn in public interest. It was further observed; that when exemption granted in exercise of statutory powers, it is implicit that it can also he rescinded or modified at any time in exercise of the same power. Power to grant ex emption, as u/s 25 of the Customs Act, 1962 comprehends implicit power to rescind, revoke or withdraw the exemption.
K was also observed by Hon''ble Supreme Court that the exemption notification issued in exercise of statutory power only suspends the levy and collection of lax or duty wholly or partially subject to conditions set out in the notification. Such exemption notification can be revoked, modified or suspended by a subsequent notification in exercise of the same statutory power in public interest, even prior to the period of its operation specified therein. Such exemption notification is not in the nature of any incentive and does not hold out any unequivocal representation or promise. Withdrawal of exemption in public interest is a matter of Government policy with which Court would not interfere in absence of any manifest injustice, mala-fides or fraud.
In view of the principle deduced from the observation of Hon''ble Supreme Court in Kasinka Trading and another, etc. etc. Vs. Union of India and another, , various other, or pronouncement of Hon''ble Supreme Court and this Court, no person can be permitted to assail the withdrawal of the exemption on levy on the ground of promissory estoppel.
It is pertinent to mention here that the exemption on delivery of rice levy can only be granted by the Stale Government on the concurrence and approval of the Central Government. This Court in 1995 (1) LBESR 390 laid down the law that the State Government cannot grant exemption without prior concurrence of the Central Govement. It was observed that if the State Government had granted exemption without the concurrence of the Central Government and subsequently, that notification was revoked and withdrawn then such notification rescinding or revoking the exemption cannot be challenged on the ground of promissory estoppel.
Levy on rice stock held in the mid night of 30-9-1995/1-10-1995 cannot be challenged even if it is presumed that the arrears which was in stock in the mid night of 30-9-1995/1-10-1995 was produced between the mid night of 30-9-1995 and was so exempted by levy by the notification dated 30-5-1995 on account of the fact that the State Government cannot be bound by the principle of promissory estoppel in exercise of its statutory power for the simple reason that the power to exempt also includes the power to leave or withdraw the said exemption.
Clause 1(4)of the notification dated 28-9-1995 has to be interpreted in the light of the fact that the notification dated 31-5-1995 granting exemption was as per condition and direction issued by the Central Govt., vide its letter dated 18-3-1995, by means of which the concurrence was granted for giving exemption for the remaining period of Kharif year 1994-95. If clause 1(4) of the notification dated 28-9-1995 is interpreted on the basis of purposive interpretation taking cue from the notification dated 31-5-1995; meaning thereby that the exemption was granted on the terms and condition and direction of the Central Government for giving exemption for the remaining period of Kharif year 1994-95, then the notification revoking or rescinding exemption cannot be assailed.
In Union of India and Others Vs. Filip Tiago De Gama of Vedem Vasco De Gama, , Hon''ble Supreme Court upheld the interpretation of a statute on the principle of purposive interpretation. The purpose of the notification of the Central Government was to defer the procurement of price in levy for the remaining period of Kharif year 1994-95 in view of the better position of the rice at relevant year. But, the notification has, not for all times to come, exempted the liability of the millers to pay the levy on rice as procurement of levy on rice was only deferred for the time being. If notification of the State Government dated 31-5-1995 be interpreted and decided 6n the principle of purposive interpretation, then it would mean that there was no end of the liability to pay the levy on rice. It was only deferred for a specified period i.e. 31-5-1995 to 30-9-1995 and at the end of 30-9-1995, at the mid night of 30-9-1995/1-10-1995, the procurement of levy has come into force.
Similar view was taken by this Court in W. P. No. 1310 (MB)/1996, where this Court held that the rice millers are liable to pay levy on stock held by them at the mid night of 30-9-1995/1-10-1995.
In view of the facts and circumstances of the case enumerated in the foregoing paragraphs, we are of the view that both the writ petitions arc devoid of merit and are accordingly dismissed.
Petitions dismissed.