Nibaran Chandra Saha vs Secretary to the Government of Assam - Department of Supply, Shillong and others

C.S. Nayudu, J.—This civil rule arises out of an application under Article 226 of the Constitution praying for the issue of an appropriate writ setting aside and quashing the order passed by the Secretary to the Government of Assam, Supply Department, Shillong, dated 18-4-1982 or a writ in the nature of mandamus directing the opposite party to cancel, recall or otherwise forbear from giving effect to their orders dated 16-4-62 and 29-6-62, or any other suitable writ.

The facts leading up to the filing of this petition may be briefly noticed. The petitioner claiming to be the owner of a rice mill, which was purchased by him in the year 1958, applied for a licence trader the Rice-Milling Industry (Regulation) Act, 1958 (Central Act 21 of 1958), which was passed by the Parliament and came into force on 22-4-59. Section 6 of the Act 21 of 1958, hereinafter referred to as the Act, requires the owner of an existing rice mill to apply for and obtain a licence for carrying on rice-milling operation in that rice: mill. The petitioner made an application for the grant of a licence on 29-6-59. This application was forwarded by the Sub-divisional Officer (Supply), Kokrajhar, opposite party No. 3, with his covering Memorandum to the Joint Director of Supply, Shillong, opposite party No. 2, on 11-1-60. Thereafter the opposite party No. 2 called for the original documents proving the claim of the petitioner to the grant of a licence. Apparently, the documents required by the Joint Director had not been furnished and the Joint Director accordingly dismissed the application. Against this order of the Joint Director rejecting the application of the petitioner, the latter went up in appeal to the Secretary to the Government of Assam, Department of Supply, and, on appeal, the Secretary rejected the appeal on the ground that no convincing documentary proof was furnished to show that the mill had been in operation at any time between 22-4-58.

In this civil rule, the correctness of this order has been impugned before as.

Before considering the merits of the various contentions of the petitioner in this case, it would be necessary to refer to certain provisions of the Act. Section 3(b) of the Act defines the "existing rice, mill" as follows :

Existing rice mill" means a rice mill carrying on rice milling operations at the commencement of this Act, and includes a rice mill in existence at such commencement which is not carrying on rice-milling operations but in which rice-milling operations have been carried on at any time within a period of one year prior to such commencement.

Section 6(1) of the Act reads as follows:

Any owner of an existing rice mill or of a rice mill in respect of which a permit has been granted u/s 5 may make an application to the licensing officer for the grant of a licence for carrying on rice-milling operation in that mill.

Sub-section (2) provides for the form of an application under sub-section (1). Sub-section (3) provides the circumstances and conditions in which the licence applied for could be granted by the licensing officer. It reads as follows :

On receipt of any such application for the grant of a licence, the licensing officer shall grant the licence on such conditions (including, in particular, conditions relating to the polishing of rice), on payment of such fees and on the deposit of such sum, it any, as security for the due performance of the conditions as may be prescribed.

Sub-section (4) provides as follows :

A licence granted under this section shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.

Section 8(2) of the Act, which is also relevant, reads as follows :

No owner of a rice mill shall, after the commencement of this Act, carry on rice-milling operation except under and in accordance with a licence granted u/s 6 :

Provided that nothing in this sub-section shall apply to an existing rice mill for such period as may be specified in this behalf by the Central Government by notified order.

4a. The contention of the petitioner is that he is the owner of an existing rice mill within the meaning of the Act In order that a rice mill could be regarded as an existing rice mill, the following conditions would be required to be fulfilled. (1) that it should be in existence as a rice mill on the date the Act came into force, namely 22-4-59, and (2) in case, the rice mill in question was not working on the date the Act came into force, it must be established that the rice mill worked at some time or other during the period of one year immediately preceding the date on which the Act came into force. In other words, the petitioner would have to establish not only that his mill was in existence on 22-4-59, but that it has also worked some time or other between the period 22-4-58 and 22-4-59. It is only If these conditions are satisfied that the rice mill of the petitioner could be regarded as an existing rice mill within the meaning of the Act. It is seen from the order of, the learned Secretary that no proof had been furnished before him that this rice mill worked at any time within a period of one year before the Act came into force. Nothing could have been simpler, for the petitioner to prove that his mill worked some time or other during the period of one year in question if this bad been the case. He could have produced the account books kept by him in the regular course of business, or the counterfoils of the receipts of money for milling the rice, Or evidence of the payment of wages to the workers in the rice mill, or he could have produced any other material evidence to show that during the relevant period the mill worked. We find from the impugned order that no material had been placed by the petitioner to prove the simple fact that his mill worked during the relevant period of one year. Since this fundamental condition has not been established, the petitioner could not make any claim on the basis that he is the owner of an existing rice mill, and no exception, in our opinion, could be taken to the order of the learned Secretary on appeal, which, in the circumstances, was a correct order to make.

Mr. Mahanta, the learned Counsel for the petitioner, contended that under the proviso to section 8(2) of the Act, it was obligatory on the part of the Central Government to have published an order notifying the period of time, in the case of a rice mill, during which the operation of section 6 would be held in abeyance, and that as no such order has been made in this case, section 6 did not apply to him. If that is the stand, it is not understood why he should have made an application u/s 6 at all. That apart, the proviso to section 8(2) of the Act applies only to an existing rice mill, and as it has not been so established in this case, it would not be open to the petitioner to take shelter under this proviso. That apart, the proviso merely is an enabling provision. Having regard to the peculiar conditions of hardship prevailing in the locality or the place, this power has been given to the Central Government to postpone the operation of Section 6 of the Act for a prescribed period to be notified, and it is also pointed out that this power has been delegated to the State Government. The question is, if no such period is specified what would be its effect in law. The answer is quite simple. Being an enabling provision and the State Government not having thought it fit to make a notification under the proviso, keeping in abeyance the operation of section 6, the legal consequence is that section 6 came into operation as soon as the Act came into force, and this being the case, there is no benefit or relief that any owner of an existing rice mill could get under this proviso.

In the circumstances, we are satisfied that there are no merits in this petition, which fails and is dismissed; but, in the entire circumstances of the case we make no orders as to costs.