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S.P. Sinha, J.—By this application the petitioner, who is a cultivator within the meaning of the Bihar Foodgrains (Declaration of Stock by Cultivators) Order, 1967, (hereinafter referred to as the ''Order'') seeks issuance of an appropriate writ quashing the order of seizure of the foodgrains recovered from his house and also of the prosecution started against him u/s 7 of the Essential Commodities Act, 1955 (Act 10 of 1955) (hereinafter referred to as the B.C. Act). The impugned orders are contained in Annexures ''2'' and ''4'' of the writ petition. In exercise of the powers conferred by Section 3 of the E.G. Act, the Governor of Bihar, on the 13th of June 1967, under G.S.R. 78 made the aforesaid ''Order'' of 1967. According to Section 2 of the said ''Order'', "foodgrains" means: "any one or more of the foodgrains specified in Schedule I appended to this Order or any other commodity which the State Government may, from time to time, by notification, declare to be a commodity to which this Order applies". Amongst others, wheat and Arhar are included in that schedule. u/s 3 of the ''Order'', as amended, vide G.S.R. 67 dated 18-5-1973 ''Any cultivator possessing more than 50 quintals of different kinds of foodgrains or 20 quintals of any particular food-grain at a time, either produced by him on his own land or acquired by any other means shall have to declare forthwith the stock of foodgrains held by him, in the form of Schedule II appended to this ''Order''.
Under Section 3A "Every cultivator, holding stock of wheat in excess of 20 quintals, when required by the Sub-divisional Officer or any officer authorised by him in this behalf by a direction in writing, shall sell and deliver to such officer or Government against price as defined in the Bihar Wheat Monopoly Purchase-cum-Levy Procurement Order, 1973 on such date, at such time and place and such quantity of wheat out of stock as is specified in the said direction and at procurement price as fixed in Schedule II of the Bihar Wheat Monopoly Purchase-cum-Levy Procurement Order, 1973".
In terms of Section 7 of the E.C. Act, any order made under its Section''s, if contravened, the contravenes shall be liable for punishment to the extent as provided in the said section. This was the state of law when the petitioner was held up for contravening Section 3 of the ''Order'' and the foodgrains found in his possession was seized.
The relevant facts may now be stated. On the 9th of August, 1973 respondent no. 3, Shri G. Jha, Deputy Collector, Monghyr Sadar, raided the house of the petitioner and seized 62 quintale 35 kilograms of wheat and 8 quintals 87 kilograms of Arhar (vide Annexure 2). After having duly weighed the foodgrains, the same was kept in the custody of the petitioner with a direction to produce it when so required. On the 10th of August, 1973 respondent no. 3 made a report to Shri D. Prasad, Subdivisional Magistrate, Monghyr, respondent no. 2, complaining of the violation of Section 3 (as amended vide G.S.R. 67 dated 18.5.1973) of the ''order'' by the petitioner and recommending for the petitioner''s prosecution u/s 7 of the E.C. Act. Respondent no. 3 further recommended that the petitioner be directed to deliver such quantity of wheat as was in excess of 20 quintals, to the Government. The said excess quantity was/ worked out at 42.35 quintals (vide Annexure 3).
Respondent no. 2 perused the report made by respondent no. 3 and held that a prima facie case u/s 7 of the E.C. Act had been made out against the petitioner. Consequently by order dated the 16th August, 1973 (Annexure 4) he took cognizance of the offence and also directed the petitioner to sell 42.35 quintals of wheat to the Government at the prescribed rate, namely, red wheat @ Rs. 71/- and white wheat @ Rs. 76/- per quintal.
The petitioner tried to explain to respondent no. 2 the circumstances under which the aforesaid quantity of foodgrains was kept in his house. According to the petitioner only a small part of the foodgrains belonged to him. The other part belonged to Shri Sahdeo Choudhary Amin and Shri Ram Saran Sinha, Advocate. These two persons even confirmed the petitioner''s assertion by filing affidavits. According to the petitioner''s assertion therefore, although foodgrains in excess of the prescribed minimum was kept at his place, but since the quantity of foodgrains possessed by him did not exceed 20 quintals, he was under no obligation to make a declaration in terms of Section 3 of the ''Order''. The petitioner even produced an earlier order (Annexure-1) passed by Shri Vidyanand Singh, Block Development Officer, Sadar Block, Monghyr, respondent no. 4, by which the petitioner had been directed to sell 14 quintals of wheat, but in fact only 4 quintals 1 kilogram and 500 grams of wheat was accepted in satisfaction of that order. The petitioner, it was stated, had already sold the said quantity of wheat on the 28th of July, 1973.
Respondent no. 2 after having heard the petitioner on his plea for exemption from selling the grains to the Government as ordered on the 16th of August, 1973, rejected the prayer by his order dated the 12th of September, 1973 (contained in annexure-4).
This order has been attacked on the ground that on the words used in the said order dated the 12th of September, 1973, respondent no. 2 was satisfied that the entire quantity of foodgrains did not belong to the petitioner, but part of it belonged to certain other persons.
I may state that the order passed by respondent no. 2 on the 12th of September, 1973 does lead one to think that respondent no. 2 was probably satisfied that the entire quantity of foodgrains did not belong to the petitioner. He has used the word "They be exempted" and "They are legally bound to sell". This contention, however, being one of fact cannot be gone into by this Court in the case u/s 7 of the E.C. Act, if the same proceeds against the petitioner.
The petitioner being aggrieved by the orders passed under annexures ''2'' and ''4'' has moved this Court by this petition and his prayer, as stated above, is for quashing the seizure and his prosecution.
A counter affidavit has been filed on behalf of respondent no. 4 countering the facts stated by the petitioner in his writ petition. It is, therefore, not necessary to describe its contents.
Very many grounds have been raised in the writ petition seeking quashing of the said annexures, but some of them have not been pressed, namely, the grounds challenging the vires of the E.C. Act. The grounds which have been pressed are only the following which concern the validity of the orders :--
(i) The ''Order'' is not a valid ''Order'' because after it was promulgated, the concurrence of the Parliament was not taken and now it had become impossible to obtain it since the ''Order'' had been repealed. The ''Order'' was therefore, illegal and invalid. No Order of seizure could be made nor any prosecution could be started under it even if any of the provisions of the ''Order'' had been contravened.
(ii) The ''Order'' is unreasonable and opposed to natural justice.
(iii) The ''Order'' violates the fundamental rights guaranteed to the petitioner by Article 19(1)(f) of the Constitution of India.
(iv) The ''Order'' was opposed to the due process of law.
Elucidating the first ground, it has been urged that the ''Order'' has been made by the Government of Bihar in terms of the powers vested in it u/s 3 of the E.C. Act Sub-section (6) of Section 3 of the E.C. Act made it mandatory for the ''Order'' to be laid before both the Houses of Parliament, as soon as it is made.
When it was pointed out to the Learned Counsel for the petitioner that Sub-section (6) applied only to orders made by the Central Government or by any person under the authority of the Central Government, he submitted that in that case it will be deemed to have been passed by virtue of the power delegated by the Central Government to the State Government as laid u/s 5 of the E.C. Act. But even then, he submitted, obtaining concurrence of the Parliament was mandatory. Learned Counsel for the petitioner submitted that the ''Order'' of 1967 had been superseded by the Bihar Foodgrains (Declaration of Stock by Cultivators and Requirement to Sell) Order, 1974. Section 8 of this Order has specifically rescinded the ''Order'' of 1967. Learned Counsel for the petitioner, therefore, submitted that since obtaining the concurrence of the Parliament for the ''Order'' was mandatory and since the obtaining of concurrence had now become an impossibility, the ''Order'' must be struck down as an invalid piece of legislation. If that is done, Annexures ''2'' and ''4'' must necessarily be quashed.
In a counter affidavit filed on behalf of the State of Bihar, it has been urged that the declaration of stock by cultivator, Order of 1967 was made by the State Government in accordance with G.S.R. 906 dated 9th June, 1966 in terms of which prior concurrence was not necessary for promulgating Orders u/s 3(2) of the E.C. Act. A copy of the G.S.R. 906 has been attached as Annexure ''B'' to the counter affidavit. According to it, power has been delegated to the State Government u/s 5 of the E.C. Act to make Orders and to provide for matters specified under some of the subsections including Sub-clause (f) of Section 3(2) of the said Act. Sub-clause (f) is "for requiring any person holding in stock any essential commodity to sell the whole or specified part of the stock to the Central Government or a State Government or to an officer or agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the order. Obtaining of prior concurrence by the State Government in respect of an Order made covering 3(2) (f) is not one of the requirements of the said G.S.R. 906.
In my opinion, neither the stand taken by the petitioner regarding obtaining of concurrence of the Parliament as being mandatory, nor the stand taken by the State of Bihar that it was not at all required to take concurrence, are correct. It is true that G.S.R. 906 (Annexure ''B'') to the counter affidavit by the State of Bihar does not in terms require the State Government to have prior concurrence of the Central Government in respect of orders made to provide for matters specified in Section 3(2) (f) of the E.C. Act, but the question is not of prior concurrence, or concurrence of the Central Government, when an order is made to provide for matters specified in certain sub-sections of Section 3(2) of the E.C. Act. The concurrence required is of the Parliament. In this respect Subsection (6) of Section 3 is clear under which orders made u/s 3 are required to be laid before both the Houses of the Parliament. Since the Central Government had delegated its power to the State Government to make orders u/s 3, the State Government cannot say that it is under no obligation to lay the order before both the Houses of the Parliament. A Full Bench of the Kerala High Court in the case of (1) the The State of Kerala and Others Vs. Annam and Others, was seized with an identical question. In paragraph 21 of the judgment it has been observed with reference to Section 3(6) of the E.C. Act that--
.......It is obvious that, by its expression, the sub-section does not make the laying before the Parliament a condition precedent to the validity of the Order; nor does it annul the order if it is not laid before the Parliament within a specified time. A law once brought to force normally continues in force till it is determined by a statutory provision therefor. To interpret the expression, in the sub-section ''as soon as may be'' to mean ''within a reasonable time'' as counsel would have it, would make the duration of the law uncertain and therefore cannot be accepted....
I am in full agreement with this view. To say that an Order promulgated by the State Government u/s 3 of the E.C. Act by the powers delegated to it u/s 5 thereof are not at all required to be placed before the Parliament, is not borne out from the terms of either Section 3(6) or Section 5 of the E.C. Act. The time limit for placing of the order before both the Houses of the Parliament for its concurrence may not be specified but the obligation is there. At least the expression "as soon as may be" does indicate an obligation for laying the Order for concurrence of the Parliament. Another Full Bench of the same High Court in the case of (2) K.C. Pazhanimala and Others Vs. State of Kerala and Others, was seized with the question as to whether an order if not placed before the parliament for its concurrence was invalid for that reason. It was observed in paragraph 7 that :--
It is obvious that, by its expression, the sub-Section does not make the laying before the Parliament a condition precedent to the validity of the Order, nor does it annul the Order if it is not laid before the Parliament within a specified time. A law once brought to force normally continues in force till it is determined by a statutory provision therefor.......
The Supreme Court in the case of (3) Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat and Another, in paragraph 18 at page 394 observed thus :
.....It is true that the legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature....
In this case their Lordships were concerned with the validity of the Gujarat Agricultural Produce Markets Act.
In the case of (4) Narendra Kumar and Others Vs. The Union of India (UOI) and Others, , the validity of clauses 3 and 4 of the Non-ferrous Metal Control Order, 1958 was in question. Clause 4 was struck down as not effective, not on the ground as urged, that the order had not been laid before both the Houses of the Parliament, but on the ground that principles for the proper working of clause 4 of the said Order had not been framed.
In view of the discussions above, I think, it cannot be said that for want of concurrence of the Parliament, the Order in question was void.
The question then arises, as has been urged by Learned Counsel for the petitioner, that since the ''Order'' has been superceded by the Bihar Foodgrains (Declaration of Stock by Cultivators and Requirement to Sell) Order, 1974, which came into effect on the 18th of August, 1974 and till this time the ''Order'' had not been laid before both the Houses of Parliament for concurrence, it was now an impossibility to obtain such concurrence and consequently the ''Order'' was void.
The trend of the case laws which I have discussed above indicate that there is no time limit specified for obtaining concurrence. It must, however, mean that the concurrence has to be obtained during the existence of the particular order for which concurrence is to be obtained. If the order has ceased to exist, obtaining of concurrence will not be possible. Such a position, as I will presently show, does not arise in the instant case and therefore, I need not consider the effect of non-obtaining of concurrence during the life time of an order. In the instant case, although by virtue of Section 8 of the Bihar Foodgrains (Declaration of Stock by Cultivators and Requirement to Sell) Order, 1974 the ''Order'' of 1967 was rescinded but then it was further provided in the said section that such rescision shall not affect :--
(a) the previous operation of the said order or anything duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability acquired for incurred under the said Order including, in particular, any outstanding obligation; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the said order; or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forefeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the said Order has not been rescinded.
In view of this saving clause, the ''Order'' of 1967 is deemed to be in existence, though only for specified purposes. The ''Order'', therefore, cannot be held to be void for having not been thus far laid before both the Houses of the Parliament for concurrence.
The next contention, is that the ''Order'' is unreasonable and opposed to natural justice and therefore, it must be struck down.
Now, here I think that argument is rather too wide. What the Learned Counsel for the petitioner actuatly meant to convey relates to the validity or otherwise of Section 3-A of the ''Order'' 1967 (already quoted in paragraph 2 of this judgment). His submissions in this regard have been that Section 3-A gave a blanket power to the sub-divisional officer without any guide lines. It was so arbitrary that he could even call upon the cultivator concerned to sell away his entire quantity of foodgrains to the Government if the total quantity possessed by him exceeded 20 quintals. Moreover, there was no provision in the ''Order'' for entertaining any objection, either before or subsequent to the order for sale or seizure. There was no provision, either for determining the reasonable requirements of a cultivator which should in all fairness be left to him for his consumption. Learned Counsel for the petitioner has made reference to the Bihar Foodgrains (Declaration of Stock by Cultivators and Requirement to Sell) Order, 1974 and particularly to Clauses 4 and 5 thereof, in terms of which a cultivator was required to sell to the State Government only such quantity of foodgrains as was in excess of his reasonable requirements and an appeal was provided, if the demand made from the cultivator was excessive.
In order to appreciate this contention, it will be...necessary to refer to the objects for which E.C. Act was made, to provide, in the interest of general public, for the control of the production and supply and distribution of any trade and commerce in certain commodities.
Foodgrains is one of such commodities described as an essential commodity in the Act. It cannot be denied that the control of production, supply and distribution of food stuffs is in the interest of the general public. The ''Order'' of 1967 or for the matter of that the subsequent order passed, in 1974, have been made keeping this object in view. Now that is being submitted by Learned Counsel for the petitioner is that since Section 3-A gave unbridled power to the Sub-divisional Officer, in as much as he could ask a cultivator, who had a stock of wheat in excess of 20 quintals, to deliver to the State Government such quantity as would be specified in the direction, meaning thereby that any cultivator who held stock of wheat in excess of 20 quintals could be asked to sell and deliver the entire stock of the State Government, it was opposed to natural justice and hence must be struck down.
Section 3-A of the Order empowers the Sub-divisional Officer to direct a cultivator to sell to the State Government only one type of foodgrains, namely, wheat. Section 3-A is concerned with only wheat and with no other foodgrains. So that if a cultivator is holding stock of foodgrains other than wheat, Section 3-A will have no application to the case of such a cultivator. The stress is on a particular type of foodgrains namely, wheat. It is only when the cultivator holds a stock of wheat in excess of 20 quintals that the Sub-divisional Officer can ask him to deliver such quantity of wheat out of the stock held by the cultivator.
Be that as it may, Section 3-A, worded as it is, does look inconvenient or unreasonable from the point of view of the cultivator. Normally statute should be such which may not cause inconvenience. But the rules of interpretation of statute do not admit of convenience as being a safe guide, to its interpretation. If Section 3-A was amenable, without doing violence to its language, to an interpretation which may not produce an inconvenient or unreasonable result for the cultivator, one would always do so. But there are occasions when the State has to pass drastic legislation for the sake of saving the Society. Such legislations are deliberate and cannot be struck down on grounds of inconvenience or un-reasonableness. Maxwell on the interpretation of statutes, twelfth edition, at page 206 has referred to a case in which under the Income Tax Act besides a penalty of � 20 for making an incorrect return of income, the assessee could be charged with treble the tax which ought to be charged under the Act. The language of the section was clear that notwithstanding the great un-reasonableness and inconvenience which would be caused to the assessee who is being asked to pay treble the tax which was chargeable under the Act, the relevant provisions was held to be a valid piece of legislations. The House of Lords did not strike down that provisions although patently it was inconvenient and unreasonable.
In interpreting a statute, it is the intention of the maker thereof which has to be taken as a guide line. If the words used in the frame of the statute are unambiguous about its connotations, then one has to apply the section as it stands, however, unreasonable or unjust the consequence be and howsoever strongly one may suspect that this was not the real intention of the maker. It is also a well established principle of interpretations of statutes that sense of possible injustice ought not to induce Judges to do voilence to well settled rule of construction, by not construing it according to its unambiguous meaning. No authority has been cited before this Court which goes contrary to the above principles of interpretation of statutes.
A decision of the Supreme Court in the case of (5) State of Madhya Pradesh and others V. Champalal and others (A.I.R. 1965 SC 124) has been cited on behalf of the petitioner wherein a certain part of any act was held to be arbitrary and unreasonable and was struck down. But this decision was in the context of Section 19(1)(f) of the Constitution of India. Clearly, if an act or any portion thereof goes contrary to the fundamental right assured to a citizen under the Constitution, the law has to be struck down. This case is no authority for the proposition that even without causing breach of the fundamental right, if an act or any portion thereof per se looked un-reasonable and inconvenient, it should be struck down. For the purposes of determining the validity of Section 3-A of the Order, to my mind, the ground of inconvenience and unreasonableness cannot be entertained for the simple reason that having regard to the object for which it has been and having regard to the unambiguous language of the said section, I would be doing voilence to it if I interpret it by saying that although the maker intended the cultivator to sell to the Government such quantity of foodgrain as directed, since it would cause great inconvenience to the cultivator and was also unreasonable it was an invalid provision.
In my opinion, since the language of Section 3-A is clear and unambiguous, even though the demands under it be unreasonable and inconvenient, it cannot be struck down that ground.
There is yet another branch of attack on the validity of the said Section 3A, on the ground that it was opposed to due process of law because no objection or a right of hearing against the action of the Sub-divisional Officer under that section was provided in the ''Order''.
It cannot be denied that in enforcing statutory powers against a person, rules of natural justice must be observed and the right of hearing is one of the fundamental rules in regard thereto. In the case of (6) Sayeedur Rehman Vs. The State of Bihar and Others, , the Supreme Court has observed that--
.....This right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not over-looking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving bearing to the affected parties...
The same view has been reiterated by the Supreme Court in (7) Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, . At the end of paragraph 33 their Lordships have observed that--
........whenever a Man''s rights are affected decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules regulations imposed by statutes
In the instant case, however, I find that there has been no violation of this fundamental rule. The order passed by respondent no. 2 on the 12th of September, 1973 clearly shows that notwithstanding the absence of a statutory provision, the petitioner was heard on his petition for exemption from selling foodgrains to the Government. The petition was no doubt rejected, but it cannot be said that the petitioner was not heard. This branch of argument has also, therefore, to be rejected.
The next ground of attack is that Clauses 3 and 3A are ultra vires to Article 19(1)(f) of the Constitution of India. It is submitted that notwithstanding the declaration of emergency which is in force, if an Act, passed prior to such declaration violates Article 19 of the Constitution, it could be declared invalid. In connection a decision of the Full Bench of the Assam High Court in (8) Shyam Behari Tewari and others V. Union of India and another (A.I.R. 1963 Ass 94) has been cited, in which it has been observed in paragraph 7 that--
....This article suspends the restriction on the powers of the State to make any law in contravention of the provisions of Article 19 only during the pendency of the emergency, but it does not lay down that the validity of the law, which has already been made, cannot be challenged on the ground of violating the provisions of Article 19 of the Constitution.
I am not sure, having regard to the clear and unambiguous words of the emergency notification, whether validity of anything done which is inconsistent with the rights guaranteed by Article 19 could be open to challenge during the continuance of the emergency. A copy of the relevant notification concerning suspension of the rights guaranteed by Article 19 of the Constitution of India has been made available to us. It is in the following terms :--
Continuation wireless message number 4892/JS(J)/75 dated the 27th June, 1975 giving text of order No. G.S.R. 361 (E) made by the President under Clause (1) of Article 359 of the Constitution (.). It will be observed that the order makes reference to Article 14, Article 21 and Article 22 only and does not mention Article 19(.) Non-inclusion of Article 19 in the aforesaid order is on account of the fact that the restrictions on the legislative and executive powers of the State imposed by Article 19 do not operate while a proclamation of emergency made under Article 352 is in operation by virtue of Article 359 of the Constitution (.) In the result the validity of anything done which is inconsistent with the rights guaranteed by Article 19 is not open to challenge either during the continuance of the emergency or even thereafter (.) The above position is being clarified to remove any possible doubts that might otherwise arise(.)
But even it be assumed for the sake of argument that notwithstanding the declaration of emergency, Clauses 3 and 3-A of the ''Order'' of the 1967 could be challenged on the ground of violating the provisions of Article 19(1) (f) of the Constitution of India, the challenge is without any merit.
Article 19(1)(f) guarantees the right to acquire, hold and dispose of property. Neither Clause 3 nor 3-A of the ''Order'' 1967 infringe that right. Clause 3 requires a cultivator, possessing more than 50 quintals of different kind of foodgrains or 20 quintals of one particular kind of foodgrain at a time, to make a declaration of his stock. By calling upon the cultivator to make a declaration, his right to acquire, hold or dispose of his properties is not at all affected. Similarly, by virtue of the powers conferred on the Sub-divisional Officer under Clause 3-A, he could call upon a cultivator to sell a quantity of wheat out of the stock possessed by him. It will be seen that even by such order the cultivators'' right as owner, possessor, and disposer of his property is not affected. Thus on merits also Clauses 3 and 3-A of the Order do not violate Article 19(1)(f) of the Constitution of India.
Learned Counsel for the petitioner made submission with regard to the price payable for the wheat asked to be sold to the Government. The price according to him was not in accordance with Section 3(3) of the E.C. Act nor was it fixed after obtaining the prior concurrence of the Parliament.
The price payable for the wheat has been fixed by reference to the Bihar Wheat Monopoly Purchase-cum-levy Procurement Order, 1973, regarding which prior concurrence of the Parliament had been obtained. The quantum of price payable to the petitioner has been ordered at the prescribed rate. Whether such rates was proper or improper cannot be a matter of controversy in a writ proceedings.
Before I part with this Order, I would like to observe that the root of all the troubles which the petitioner has invited upon himself, is the recovery of foodgrains in excess of prescribed minimum, from his premises. As to whether the petitioner did possess stock of food-grains in excess of the prescribed minimum is a question which he had agitated before the Sub-divisional Magistrate, whose order dated the 12th of September, 1973 seem to be of a wavering nature. It seems to accept the ownership of others on some part of the foodgrains and also at the same time not accepting it. The petitioner, if so advised, may get this matter clarified. All the contentions raised by the petitioner having failed, the application is dismissed.
B.D. Singh, J.
I agree