Sri Trivikrama Ramananda Bharatiswami, Sri Siddheswari Peetadhipati and Others vs The Taluk Supply Officer and Others

Kailasam, J.—The above batch of writ petitions have been filed challenging the validity of the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966 (hereinafter called the order) and the legality of the action taken by the authorities purporting to act under the order. As all these petitions raise the same question, they may be dealt with together.

Writ Petition No. 2671 of 1966 is filed by the Jeer of Vanamamalai Mutt for the issue of a writ of mandamus directing the authorities to release 1,338 bags of paddy and restraining the authorities from selling 414 bags of paddy which had been seized from the Petitioner. Sri Vanamamalai Mutt, Nanguneri is an ancient mutt owning extensive lands in Nanguneri taluk and in other places. The income in a normal year from the lands belonging to the mutt in Nanguneri taluk is about 2,500 kottahs of paddy. From the other villages, the paddy income will be about 600 kottahs. The mutt used to store the paddy in two granaries. The normal annual requirement of the mutt is about 2,000 kottahs of paddy. The balance of paddy was being sold by the mutt in open market.

In April, 1966, after the Pishanam harvest, the mutt had in its Nanguneri granary about 2.828 kottahs of paddy, out of which a total quantity of 900 kottahs (1,800 bags) were measured for the procurement up to 30th September 1966. From the paddy collected from the other fields, a total quantity of 723 kottahs were measured to the Government. On 1st October 1966 the mutt gave a declaration that they had a stock of 1,373 kottahs of paddy. On 15th October 1966 the stock of paddy was 1,315 kottahs. On that date, a notice was served on the Petitioner calling upon him to surrender 1,634 bags of paddy within three days. On behalf of the mutt, a petition was filed requesting the District Revenue Officer to permit the mutt to retain paddy for its requirements. While so, on 18th October 1966 the authorities sealed the granaries of the mutt, and till now they have refused to give any access to the granaries to the Petitioner. The District Revenue Officer in response to the request by the mutt to allow the required quantity for the consumption of the mutt, directed on 23rd October 1966 that the mutt would be allowed to have 1,338 bags and will measure out the excess paddy to the Government. While so, the tahsildar and the taluk supply officer broke open the locks and removed paddy forcibly in several lorries with the help of the police. The Petitioner''s request that they may be permitted to retain 1,338 bags as per the order of the District Revenue Officer was not heeded to. The Petitioner challenges the validity of the acts of the tahsildar and the taluk supply officer and submits that the whole proceedings are illegal and unwarranted in law. He prays for appropriate relief.

In Writ Petition No. 2358 of 1966, Sri Trivikrama Ramananda Bharati Swami, Sri Siddheswari Peedathipati, Courtallam is the Petitioner. He prays for the issue of a writ of mandamus directing the return to the Petitioner of the 701/2 kottahs of paddy removed from the Petitioner''s thrashing floor in Nagalkadu, Piranur village, Tinnevelly district. The normal paddy income from the lands belonging to the mutt is about 430 kottahs, of which about 225 kottahs are required for the requirements of the mutt in a year. A levy notice was served on the Petitioner regarding the mutt lands in September 1966. The Petitioner offered to sell the surplus paddy available after meeting the requirements of the mutt to the Government. But the authorities prevented the Petitioner and his lessees from harvesting the lands. The Petitioner appealed to the Chief Minister, Food Minister, the District Collector and the District Supply Officer for relief. Subsequently, the harvest was permitted and paddy was harvested in about 20 acres of land. The Petitioner was directed not to remove the harvested paddy from the thrashing-floor and take it to the granary at Courtallam. Thalayaris were posted to guard the harvested paddy. The Petitioner pointed out that by G.O. No. 9450/A.V/65-2, Food and Agriculture Department, dated 12th April 1965, public trusts were exempted from compulsory procurement of paddy and prayed that instructions may be issued to the local officials to permit the Petitioner to take the harvested paddy to the mutt granary. On 20th September 1966, the local officials went to the thrashing-floor and compulsorily measured and removed the entire harvested paddy. The action of the authorities is challenged as illegal, high-handed and arbitrary, and also as amounting to gross interference with the rights of the Petitioner.

Writ Petition Nos. 814 of 1967 and 815 of 1967 are filed by two persons for the issue of a writ of mandamus to the authorities directing them to release the stock of paddy which they seized from the Petitioners The Petitioners (in the two writ petitions) harvested paddy from their lands in the third week of March 1967. On 26th March 1967, certain officials came to the premises where the paddy was kept and purporting to exercise powers of search entered the premises and proceeded to seal the premises. The Petitioners asked the authorities under what authority they were entering and searching the premises, but the officers declined to show any authority, and proceeded to, and actually sealed the premises. It is stated by the Petitioners that the police officials acted in an unlawful, insulting and disgraceful manner with intent to insult and cause damage to the Petitioners. The action of the authorities is challenged as being contrary to law and illegal.

In Writ Petition No. 997 of 1967, the Petitioner one V.K.R. Subramania Athithan, prays for a writ of mandamus directing the authorities to return the stock of paddy seized from him. On 8th April 1967, the authorities affixed a notice in the Petitioner''s house requisitioning 40 bags of paddy after allowing 61" bags for his consumption. The Petitioner submits that his requirements were not properly taken into account while making this requisition. On 10th April 1967, within three days of the service of the notice, the officers entered the premises and seized 39 bags of paddy from his possession. It is submitted that the action of the officers is improper and not warranted in law and, therefore, the Petitioner prays for a direction that the paddy seized may be returned to him.

In all the writ petitions, the validity of the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, is challenged. The contention of the Petitioners is that the provisions of the order are ultra vires of the powers of the State Government, being in excess of the powers conferred by Section 3 of the Essential Commodities Act (Act X of 1955)(hereinafter called the Act) and that the provisions of the order are violative of the fundamental rights of the Petitioners.

The main legal contentions on behalf of the Petitioners may be classified under the following heads:

(i) The power to requisition the entire stock of paddy without making provisions for bona fide requirements of the grower and leaving the discretion to the uncontrolled and arbitrary choice of the officers is violative of Articles 14 and 19 (1) (f) of the Constitution of India;

(ii) The power of search and seizure conferred on the authorities for securing compliance with the provisions of the order or for satisfying themselves that the provisions have been complied with, is ultra vires of the powers conferred on the Government by the Essential Commodities Act, 1955, and violative of Articles 14 and 19 of the Constitution of India ;

(iii) The power to direct the producer to sell the whole or a specified part of his stock at the controlled price to the Government is not in conformity with the powers conferred on the State Government by the Essential Commodities Act, and it is violative of the Petitioners'' fundamental rights, in that, the just equivalent value of the paddy seized has not been granted to them ;

(iv) The powers conferred u/s 3 of the Essential Commodities Act, 1955 would not apply to paddy, which is not a foodstuff;

(v) The powers under the Essential Commodities Act could not be availed of, except when the State Government is satisfied that recourse to the power was necessary in the interests of the public ; and in the absence of such declaration, the order should be deemed to be invalid.

On behalf of the State it was submitted that as emergency had been declared under Article 358, of Constitution of India, the fundamental rights guaranteed under Article 19 (1) (f) are suspended, and, therefore, the Petitioners cannot complain of any infringement of their rights to acquire, hold and dispose of property. Secondly, it was submitted that as the order was one for acquisition or requisitioning of property the proper Article that is applicable is Article 31(2) of the Constitution of India, and, therefore, the contention, that the restrictions impose it should be reasonable, is not applicable.

During the course of the argument, the learned Advocate-General conceded that consequent on the decision of the Supreme Court in K. Anandan Nambiar and Another Vs. Chief Secretary, Government of Madras and Others, the right of a citizen to approach the Court for protection of his rights under Articles 14 and 19 (1) (f) is not taken away as the order is not a post-emergency legislation as it has no reference to the Defence of India Ordinance, rule or order made thereunder. Mr. V.P. Raman, learned Counsel for the Petitioners submitted that the question is not free from difficulty and the Court may not base its judgment on the concession made by the learned Advocate-General. The learned Advocate-General during the earlier part of his argument conceded that the power to requisition the entire stock of paddy would amount to a total prohibition, and cannot be justified as reasonable restriction under Article 19 (1) of the Constitution. He also conceded that the power to requisition the entire stock will be violative of Article 14, in that the order did not specify the conditions under which such requisitions can be made by the officers. But on second thoughts, the learned Advocate-General submitted that the power to requisition the entire stock of paddy can be supported on the ground that the officers to whom the powers are conferred are holding responsible positions and, therefore, the conferment of such'' wide powers may be supported. The learned Advocate-General also conceded that the power of search and seizure conferred on the authorities with a view to securing compliance with the provisions of this order or to satisfying themselves that the provisions have been complied with is very wide and ultra vires of the powers conferred under the Essential Commodities Act, and violative of the fundamental rights of the Petitioners. He further conceded that the direction that the Petitioners should sell their stock of paddy at the controlled price is not in accordance with the provisions of the Essential Commodities Act and, therefore, is not valid. Considering the importance of the questions raised, it is desirable that the matter should be considered at some length and not disposed of on the concessions made by the learned Advocate-General.

The effect of the proclamation of the emergency by the President of India under Article 352 of the Constitution as to the enforcement of the fundamental rights may be considered. Article 352 of the Constitution empowers the President to proclaim a state of emergency. Article 358 deals with the suspension of provisions of Article 19 during the emergency. It runs as follows:

While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any Jaw or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

Under Article 358, the power of the State to make any law shall not be restricted by anything contained in Article 19 of the Constitution of India, while the proclamation of emergency is in operation. This would mean that the restriction contained in Article 19 will not apply to any law made after the proclamation, i.e., the provisions of Article 19 are suspended with regard to post-emergency legislations; the Article does not purport to suspend the provisions of Article 19 regarding pre-emergency legislations. Article 359 provides that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. Under Article 359, the President is empowered to declare the right to move any Court for the enforcement of rights conferred under Part III as mentioned in the Presidential Order be suspended. The Presidential Order may also suspend the enforcement of such rights in proceedings pending before any Court. While Article 358 suspends the operation of the provisions of Article 19 with regard to post-emergency legislations, Article 359 empowers the President to declare the right to move any Court for the enforcement of rights conferred by Part III as may be mentioned in his order, be suspended for the duration of the emergency. Under Article 359, the President may suspend the right of a citizen to enforce rights conferred by Part III with regard to pre-emergency legislation as well as post-emergency legislation.

The state of emergency was declared by the President on 26th October 1962. By an order, dated 11th November 1962, the President declared.

In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962, or any Rule or Order made thereunder.

The Presidential Order suspends the rights under Articles 14, 21 and 22 with regard to persons who had been deprived of such rights under the Defence of India Ordinance, or any rule or order made thereunder only. The Presidential Order does not affect any orders made otherwise than under the Defence of India Ordinance, or any rule or order made thereunder. The effect of reading Articles 358 and 359 together is that the State is empowered when a proclamation of emergency is in operation to make any law and the provisions of Article 19 shall not restrict that power, that is, a person shall not be entitled to his rights under Article 19 regarding post-emergency legislations. Under Article 359, the person is deprived of his right to enforce his rights under Articles 14, 21 and 22 if the order had been passed under the Defence of India Ordinance, or any rule or order made thereunder.

The earliest decision of the Supreme Court on this point is in Makhan Singh Vs. State of Punjab (and connected appeals), At page 392, the Supreme Court summed up the position thus:

The suspension of Article 19 during the pendency of the proclamation of emergency removes the fetters created on the legislative and executive powers by Article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. In other words the suspension of Article 19 is complete during the period in question and legislative and executive action which contravenes Article 19 cannot be questioned even after the emergency is over.

The Supreme Court was considering the validity of orders of detention passed under Rule 30 (1) (b) of the Defence of India Rules. The orders are clearly covered under the Presidential Order under Article 359 of the Constitution of India. In that case, Supreme Court was considering the validity of a post-emergency order. In K. Anandan Nambiar and Another Vs. Chief Secretary, Government of Madras and Others, on the basis of which the learned Advocate-General conceded the point, the Supreme Court was considering the effect of the Presidential Order on Rule 30(1) (6) of the Defence of India Rules. At page 660, the Supreme Court held thus:

In construing the effect of the Presidential Order, it is necessary to bear in mind the general rule of construction that where an Order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said Order must be strictly construed in favour of the citizens'' fundamental rights. It will be noticed that the sweep of the Order is limited by its last clause. This Order can be invoked only in cases where persons have been deprived of their rights under Articles 14, 21 and 22 under the Defence of India Ordinance or any rule or order made thereunder. In other words, if the said fundamental rights of citizens are taken away otherwise than under the Defence of India Ordinance or rules or orders made there under, the Presidential Order will not come into operation....

...But the point still remains that if a challenge is made to the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359 (1), such a challenge is outside the purview of the Presidential Order;

While the decision is an authority for the proposition that the Presidential Order will not come into operation if the fundamental rights of citizens are taken away otherwise than under the Defence of India Ordinance, rules or orders made thereunder, the decision does not specifically hold that Article 358 is applicable only to post-emergency legislations. Mr. V.P. Raman is, therefore, right in his submission that the above decision does not conclude the point in his favour.

In Durgadas Shirali Vs. union of india (UOI) and Others., the Supreme Court was dealing with an order made under Rule 30 (1) (b) of the Defence of India Rules. Following the decision in Makhan Singh Vs. State of Punjab (and connected appeals), the Supreme Court observed thus (head-note):

Where a Petitioner seeks to challenge the validity of an Ordinance, rule or order made under Article 359 (1) on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation.

At page 1080, the Court observed thus-

It is not also open to challenge the Ordinance, rule or order made thereunder on the ground of contravention of Article 19 because as soon as a Proclamation of Emergency is issued by the President under Article 358, the provisions of Article 19 are automatically suspended.

Here again, the Supreme Court was considering an order under Rule 30(1) (b) of the Defence of India Rules.

In Jaichand Lall Sethia Vs. State of West Bengal and Others, the Supreme Court was again considering an order made under the Defence of India Rules. The Court while following its decision in Makhan Singh Vs. State of Punjab (and connected appeals), and Durgadas Shirali Vs. union of india (UOI) and Others., observed that if a citizen seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22 the Presidential Order cannot come into operation. The Court held (head-note):

It is not also open to a citizen to challenge the Order on the ground of contravention of Article 19, because as soon as a Proclamation of Emergency is issued by the President under Article 358, the provisions of Article 19 are automatically suspended.

These observations are made in dealing with the validity of an order made under Rule 30 of the Defence of India Rules, 1962.

In Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, the Supreme Court was considering the validity of certain provisions of the Payment of Bonus Act, 1965 a post-emergency legislation. At page 706 the Court observed thus:

We need say nothing at this date about the plea that Section 10 by imposing unreasonable restrictions infringes the fundamental freedom under Article 19 (1) (g) of the Constitution, for by the declaration of emergency by the President under Article 352, the protection of Article 19 against any legislative measure on executive order which is otherwise competent, stands suspended.

Though the observations of the Supreme Court is in general terms that protection under Article 19 stands suspended on the declaration of emergency, it has to be noted that the Court was dealing with the provisions of Payment of Bonus Act, 1965 a post emergency legislation and the observations in the context would have meant to apply to post emergency legislations alone.

It will thus be seen that the Supreme Court in all the cases cited, except the one in Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, was considering the validity of an order made under the Defence of India Rules. So far as orders made under the Defence of India Rules are concerned, they are specifically covered by the Presidential Order under Article 359 of the Constitution. The observation of the Court that Article 358 suspends the rights under Article 19 in these cases can be read as referring only to post-emergency legislations. The decisions cited cannot, therefore, be read as holding that Article 358 should be read as suspending the rights under Article 19 with regard to pre-emergency legislations.

A Full Bench of the Assam High Court in Shyam Behari v. Union of India AIR 1963 Gau. 94 has held that (head-note):

Article 368 of the Constitution 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.

This view was accepted by a Full Bench of this Court in Raval and Co. v. Ramachandran ILR (1966) 2 Mad. 437. The Court held that the provisions of a 1960 Act were open to challenge on the ground that they were violative of Article 19 of the Constitution. The decision is an authority for the proposition that Article 358 could not deprive the Petitioner from challenging the validity of any pre-emergency legislation on the ground that it is violative of Article 19 of the Constitution of India.

The question arises whether the impugned order, viz., the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, which was passed under the powers conferred by the Essential Commodities Act, 1955" could deprive a person of his right under Article 19, because of Article 358 of the Constitution. It may be noted that while the Essential Commodities Act, 1955 is a pre-emergency legislation to which Article 358 is not applicable, the impugned order is of the year 1966, that is after the emergency was proclaimed.

In Tuticorin T. and C. Corporation (P.) Ltd. v. State of Madras (1966) 1 MLJ 313 a single Judge of this Court was considering the validity of a law made anterior to the proclamation of emergency under Article 358 of the Constitution, and also the validity of a notification under the Act bringing the Act and the other rules into force which came into effect after the emergency was proclaimed. It was contended that though the Act was passed by the State Legislature in 1961, it was without any effect, for it had been brought into force only on a notification issued in July 1964, that is after the proclamation of emergency was made. The learned Judge accepted the contention that the law was made when the Legislature passed it, and when the President accorded his assent. The learned Judge held at page 316:

...the making of the law is not dependent upon the framing of the Rules or bringing the law into force in any specified area on any specified date, which is done only under the authority of the law as made by the Legislature.

In the present case, the Essential Commodities Act, 1955 received the assent of the President on 1st April 1955. Under the powers conferred on the State Government by Section 3 of the Act, the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966 was made on 28th June 1966. Though the order is a post-emergency order, it was made by virtue of the powers conferred by the Essential Commodities Act, 1955, a pre- emergency legislation. The order though passed in 1966 should be taken as in pursuance of a pre-emergency legislation and it should be held that Article 358 of the Constitution will not deprive a person of his rights under Article 19 of the Constitution. Following the decision In Tuticorin T. and C. Corporation (P.) Ltd. v. State of Madras (1966) 1 M.L.J. 313. I accept the contention of the learned Counsel for the Petitioner that the impugned order is liable to be questioned on the ground that the rights under Article 19 are infringed.

Next it has to be considered whether the powers conferred on the authorities to requisition the whole or a specified part of the stock of paddy at controlled price infringes Article 19 (1) (f) or Article 31 (2) of the Constitution of India. It was contended on behalf of the State that the order is one relating to requisition and acquisitioning of property passed under Article 31, and the Petitioner cannot complain that the requisitioning of the whole of the paddy is an un-reasonable restriction on his right to acquire, hold and dispose of property. Article 19 (1) (f) of the Constitution provides that all citizens shall have a right to acquire, hold and dispose of property. Article 19 (5) provides that nothing in Sub-clause (f) of Article 19 (1) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said Sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe. Thus the right to acquire, hold and dispose of property is subject to reasonable restrictions that may be imposed in the interests of the general public or for the protection of the interests of the scheduled tribe. Article 31 relates to compulsory acquisition of property. Article 31 (1) provides that no person shall be deprived of his property save by the authority of law. Article 31(2) provides that no property shall be compulsorily acquired or requisitioned save for public purpose and save by authority of law. The law should provide for compensation of the property so acquired or requisitioned, and it should either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given. Under Article 31(3), no such law made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. No such law shall be questioned on the ground that the compensation provided for by that law is not adequate. Entry 33 in List III of VII Schedule enables the Legislatures to make law regarding trade and commerce in, and the production, supply and distribution of....(6) foodstuffs including edible oil seeds and oil. Entry 42 relates to acquisition and requisitioning of property. The Essential Commodities Act was enacted for 1 providing, in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. The Act provides for the control of production, supply and distribution of essential commodities which included those in Clauses (b), (c), (d) and (e) of Entry No. 33, List III. Section 3 (2) (f) of the Act empowers the Government to make rules requiring a person holding in stock any essential commodity to sell the whole or a 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. The Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, issued by virtue of the powers conferred u/s 3 of the Essential Commodities Act, 1955, provides for the requisitioning of paddy. It is contended on behalf of the State that the legislation is one under Entry 42 relating to acquisition and requisitioning of property.

The right to property is dealt with both under Articles 19(1) (f) and 31 of the Constitution of India, While Article 19 (1) (f) guarantees a right to acquire hold and dispose of property, Article 31 Clause (1) provides that no person shall be deprived of his property save by authority of law. Clause (2) of Article 31 provides that private property cannot be acquired or requisitioned by the State, except for public purpose and after providing for payment of compensation. It is unnecessary to deal with the legislative changes regarding Article 31, or the interpretations of the Supreme Court from time to time. It is sufficient to state that in Swami Motor Transport (P) Ltd. and Another Vs. Sri Sankaraswamigal Mutt and Another, the Supreme Court held that Article 19 applied to abstract as well as concrete rights. In Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, , the Supreme Court held that Clauses (1) and (2) of Article 31 are mutually exclusive, that Clause (1) deals with cases of deprivation of property by law, while Clause (2) deals with acquisition or requisitioning of property. Before Clause (2) could be attracted, there must be a transfer of ownership or right of possession to the State or its nominee. Regarding Article 31 (1) it was held that the law must be a valid law and it should be within the competence of the powers of the Legislature and that it should not contravene any of the fundamental rights included in Part III of the Constitution.

The Supreme Court held in The The State of Bombay Vs. Bhanji Munji and Another, that the protection under Article 19 (1) (f) was not available if the impugned law deprived the owner of his property as after such deprivation, there is no right left in respect of which he is capable of exercising his right under Article 19 (i) (f). Subba Rao J., (as he then was) in Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, held that the decision of the Supreme Court in The State of Bombay Vs. Bhanji Munji and Another, no longer holds the field. The learned Judge observed that the analogy drawn by the Supreme Court from Article 21 that when the property was requisitioned within the meaning of'' Article 31, the operation of Article 19 was excluded was no longer available after the Constitution (Fourth Amendment) Act, 1955, as thereafter, they dealt with two different subjects Articles 31 (2) and 31(2-A) for acquisition and requisition and Article 31 (V for deprivation of property by authority of law. The question arose whether these observations would mean that in a case of requisition under Clause (2) of Article 31, the protection available under Article 10 (1) (f) is available. The Supreme Court answered the question in the negative in Civil Appeal No. 322 of 1961. It held:

The observation....that The State of Bombay Vs. Bhanji Munji and Another, no longer holds the field'' has therefore to be understood as meaning that it no longer governs a case of deprivation of property by means other than requisition and acquisition by the State.

The position, therefore, is that in the case of deprivation of property under Article 31 (1), the citizen is entitled to protection under Article 19 (1) (f). But if the law relates to acquisition and requisitioning, Article 19 has no application and the law will be valid if the conditions laid down under Article 31 (2) are satisfied. Article 31 (2) provides that the law relating to acquisition and requisitioning of property should provide for compensation for the property so acquired or requisitioned and fix the amount of compensation or specify the principle on which, and the manner in which, the compensation is to be determined. It is also provided that no such law shall be called in question in any Court on the ground that the compensation provided by the law is not adequate. In The The State of West Bengal Vs. Bela Banerjee and Others, it was contended that compensation under Article 31 did not mean a just equivalent. The Supreme Court negatived the contention and held that compensation meant a just equivalent, although the Legislature had been given a discretion to lay down the principle for determining the compensation. Such principle had to ensure that what was determined to be payable as compensation should be just equivalent to what the owner had been deprived of. In order to get over the view of the Supreme Court, the Constitution (Fourth Amendment) Act, 1955, was enacted. At the end of Article 31 (2) a proviso was inserted which made the inadequacy of the compensation nonjusticiable. Article 31(2A) provided that where the law did not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. The effect of the amendment is that unless the law provided for the transfer of the ownership or right to possession of property to the State or to a corporation owned or controlled by the State, it shall not be deemed to be compulsory acquisition or requisitioning of property. The amendment sought to make the quantum of compensation non-justiciable, by providing that no such law shall be called in question in any on the ground that any compensation provided by the law 1 is not adequate. But this aim was not achieved, for, the Supreme Court in P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, observed that the amended Article 31 (2), by retaining the word compensation, must be interpreted as having accepted the meaning of the expression compensation and principles given to them in the The State of West Bengal Vs. Bela Banerjee and Others, referred to above. Therefore, when making a law for acquisition or requisitioning, the Legislature should provide for a just equivalent of what the owner was being deprived of or should specify the principle for the purpose of ascertaining the just equivalent of what the owner was being deprived of. If the principles laid down are not relevant to the property acquired at the time of the acquisition, then the Courts can intervene and scrutinise the validity of the principles. In Union of India (UOI) Vs. The Metal Corporation of India Ltd. and Another, the Supreme Court has declared that the Metal Corporation of India (Acquisition of Under taking) Act, 1965, as invalid as it did not provide for compensation within the meaning of Article 31 (2). The plant, machinery and other equipment which had not been used and which were in good condition were to be valued at the actual cost of acquisition to the company, and not at the written-down value determined in accordance with the provisions of the income tax Act. According to the decisions of the Supreme Court cited above, the Legislature is bound to provide for compensation which is a just equivalent or to prescribe methods of determining the compensation which is relevant for such purpose. The result of the foregoing decisions may be summed up thus if the law is one restricting the right of a citizen to acquire, hold and dispose of the property, the restriction should be reasonable and should be in the interests of the general public. If the law is one falling under Article 31 (1) the deprivation of property should be by authority of law. But the person is entitled to protection under Article 19 (1) (f) of the Constitution. When the law relates to acquisition and requisitioning of property for a public purpose by transferring the ownership or possession of the property to the State or to a corporation owned or controlled by the State, Article 31 (2) is applicable and the person is not entitled to the protection under Article 19 (1) (f) of the Constitution. But he is entitled to reasonable compensation which shall be the just equivalent of the value of the property that is acquired or requisitioned. It will thus be seen if the impugned order falls under Articles 31 (1) or 31 (2) the person would be entitled to reasonable compensation But if it falls under Article 31 (2), the person would not be entitled to the benefits of Article 19 (1) (f) and he cannot claim that the law amounts to an unreasonable restriction on his right to acquire, hold and dispose of property. If the order is held to fall under Article 31 (2), the acquisition of the whole of the stock of paddy cannot be questioned as amounting to unreasonable restriction.

It has now to be considered whether the Madras Paddy and Rice (Declaration and Requisitioning of Stokes) Order, 1966, is a law relating to acquisition and requisitioning of property under Article 31 (2) of the Constitution of India. As already pointed out, the Essential Commodities Act, 1955 was enacted for the control of production, supply and distribution of, and trade and commerce in, essential commodities such as foodstuff, cattle fodder, jute, etc., mentioned in Entry No. 33 in List III of the VII Schedule. Section 3 of the Essential Commodities Act enables the Government to issue orders providing for control of production, supply and distribution of, and trade and commerce in, essential commodities. The object of the legislation is one as contemplated in Entry 33. The Government is also empowered to make rules'' u/s 3 (2) (f) of the Act requiring any person holding in stock any essential commodity to sell the whole or a 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. An amendment to the above effect was made to Section 3 of the Act, by Act XXVIII of 1857, as it was held in Nirmal Chakravarti and Others Vs. The Land Acquisition Collector, Alipur and Others, that Section 3 (2) (f) as it stood before the amendment, would not entitle the Government to order the stock holder to sell the Government or its officers acting as agents of the Government. The rule making power conferred u/s 3 (2) (f) of the Act would enable the Government to require a person holding stock of an essential commodity to sell the whole or a part thereof to persons enumerated in the Sub-section. Though undoubtedly the power of requisitioning is conferred under the Essential Commodities Act, legislation is one clearly under Entry 33 List III of VII Schedule. Merely because the power to require the sale of the stock to the Government is provided for, it cannot be claimed that the legislation is relating to acquisition and requisitioning of property falling under Article 31 (2) of the Constitution of India. Further, it will be seen that Article 31(2) is applicable only to cases where the ownership of the property is transferred to the State or to a Corporation owned or controlled by the State. Under the Essential Commodities Act and the impugned order, the authorities can direct the sale to the Government or to an officer or an agent of the Government or to such persons or class of persons and in such manner as may be specified in the order. The direction to sell the property to such other person or class of persons and in such circumstances as may be specified in the order, removes the order from and out of the purview of Article 31(2) of the Constitution of India, as the transfer of ownership or right to possession should be only to the State or to a corporation owned or controlled by the State. On a reading of the Essential Commodities Act and the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, I am convinced'' that the legislations are not under Article 31 (2) of the Constitution. The Petitioners are, therefore, entitled to the protection under Article 19 (1) (f) of the Constitution and to contend that the restrictions imposed are unreasonable.

The contentions raised on behalf of the Petitioners may now be taken up for consideration. The validity of the impugned order was challenged on the ground that the power to requisition the entire quantity without provision for bona fide requirements of the grower and leaving it to the arbitrary discretion of the officers is bad and violative of Articles 14 and 19 of the Constitution. It was further contended that the power of the authorities to direct the sale of paddy at the controlled rate is not in accordance with the provisions of the Essential Commodities Act. Thirdly, the power of search and seizure conferred under Clause (5) of the impugned order was also challenged as being violative of Articles 14 and 19, of the Constitution of India.

Clause (4) of the impugned order enables the Commissioner or the Secretary to the Commissioner or any District Collector or any District Supply Officer or Revenue Divisional Officer or any officer authorised in this behalf by the Government, by an order in writing to require any person holding any stock of paddy to sell the whole or a specified part of the stock at the controlled price to the Government. The validity of the clause is attacked on the ground that the requisitioning of the whole of the stock is an unreasonable restriction to hold property and that the power conferred on officers in this behalf is arbitrary and violative of Article 19 (1) (f) of the Constitution.

In Narendra Kumar and Others Vs. The Union of India (UOI) and Others, the Supreme Court held that the word restriction in Article 19 (1) would include cases of prohibition also and that the contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot be accepted. The Supreme Court was considering an order passed under the Non-ferrous Metal Control Order, 1958 prohibiting the sale of non-ferrous metal under certain conditions. At page 436 the Court held:

It is reasonable to think that the makers of the Constitution considered the word " restriction " to be sufficiently wide to save laws " inconsistent with " Article 19 (1), or " taking away the rights " conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt, therefore, that they intended the word restriction to include cases of prohibition also.... It is undoubtedly correct, however, that when, as in the present case, the restriction reaches, the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.

The Court proceeded to observe:

In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than what was necessary in the interests of the general public.

In the case of total prohibition, therefore, the ratio of harm caused to the individual citizen by the proposed'' remedy and the beneficial effect reasonably expected to result to the general public will have to be considered. While in the case of an essential commodity like copper, a non-ferrous metal, the interests of the public may demand the total prohibition of sale of the entire stock, such total restriction regarding paddy may not stand the tests laid down by the Supreme Court. In the case of paddy, the requisitioning of the entire stock will not be justified as the restriction is more than necessary in the interests of the public and the ratio of harm to individual citizen is very great. The grower though he may not be entitled to any special claim as a producer of paddy he will at least be entitled as a member of the public to the quantity of paddy which is necessary for his personal requirements. It would not be in the public interest to deprive him of such a minimum requirement.

In the case of agriculturists, the seed grains that may be necessary to enable him to earn his livelihood and such portion of the agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of himself and his family are exempt from attachment under Sections 60 and 61 of the Code of Civil Procedure. While the law provides for exemption from attachment of seed paddy and agricultural produce that is necessary for the agriculturists to provide until the next harvest for the due cultivation of the land and for the support of the judgment debtor and his family, the provision in the impugned order enabling the requisitioning of the whole of the produce cannot be justified on the ground of public interest. As observed by the Supreme Court in Narendra Kumar and Others Vs. The Union of India (UOI) and Others, the ratio of harm caused to the individual citizen by the proposed remedy and the beneficial effect reasonably expected to result to the general public will have to be considered. On such a consideration, an order which does not provide for the requirements of the agriculturist as for seed paddy, for the due cultivation of the land and for the support of the producer and his family will not be valid-Clause (4) of the order, therefore, empowering the Government to requisition the entire stock of paddy from the agriculturist is violative of Article 19 (1) (f) of the Constitution.

In this connection, an obiter dicta of the Orissa High Court in Bhajaram Swain Vs. State of Orissa, may be referred to It was urged before the Court that as the law did not provide for immunity from compulsory sale of that portion of the essential commodity which is necessary for the normal requirements of the owner, such a law would be unreasonable and invalid, notwithstanding that in administering the law, the competent authority may pass a reasonable order. The Court accepted that there was some force in this contention because the impugned clause authorised the compulsory sale of the whole of the stock of paddy. Chief Justice Jagannadhadas, as he then was, while concurring with the above contention observed that the argument that the order is inconsistent with the fundamental rights under Article 19 (1) (f) of the Constitution appeared to be primarily correct. In an unreported decision of the Supreme Court in Criminal Appeal No. 877 of 1903, dated 26th August 1964 (Hazari Mal Radhakishan and Anr. v. The Regional Fool Controller, Meerut), the Court held that the order of the Regional Food Controller directing the Appellant to sell the entire stock of peas is valid and is not violative of Article 14. The decision appears to be in the case of a trader whose entire stock of peas was acquired by the Government for making the same available to the consumers at a reasonable rate. It was held that it would force the hands of the other traders to sell their stock at the same price. The article that was requisitioned, viz., peas, is not a commodity which is so essential to the producer as paddy and a total prohibition in relation to peas even against the producer may be justified; but it cannot be upheld in the case of paddy.

The attack against the clause as violative of Article 14 of the Constitution is based on the principle laid down by the Supreme Court in Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, Das C.J., who spoke for the Court stated at page 548:

that while good faith and knowledge of the listing conditions on the part of a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

The contention of the learned Counsel is that neither the impugned order nor the Essential Commodities Act, 1955, has laid down any principle or policy for guiding the exercise of discretion by the authority who is entitled to requisition the stock of paddy. Arbitrary and uncontrolled power left with the authority to requisition the entire stock from one person alone and not from the other at his whims and fancies is violative of Article 14 of the Constitution of India. In Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, , the rules for the guidance of the officers in charge of the administration are indicated. If the statute itself applies unequally on persons similarly situated, it would be a direct violation of the Constitution. At page 1603 it has been held (H.N.)

The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the Legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.

In such circumstances, the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection'' afforded by Article 14.

It is held that it is enough if the Legislature lays down the policy and indicates the rule or the line of action which should serve as a guiding line to the authority. It is not essential that the rules for guidance of the authority should be laid in express terms. The guidance may be obtained from the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with the well-known facts of which the Court might take judicial notice of or which it is apprised by evidence before it in the form of affidavits. The impugned order, which authorises the authority vested with the discretion to requisition the entire stock of paddy from an agriculturist without any guiding principles has to be struck down. According to Clause (4) of the order, an officer may requisition the entire stock from one person and nothing from his neighbour. The purpose of the Essential Commodities Act and the impugned order is for controlling the production, supply and distribution of paddy. But there is no indication in the order which would guide the authority when requisitioning the stock after making allowance for his essential requirements. The power conferred on the authority is arbitrary and uncanalised.

The Supreme Court in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., held that Rules 148(3) and 149(3) of the Railway Establishment Code, 1959, are violative of Article 14 of the Constitution of India. The impugned rules enabled the authorities to terminate the services of permanent servants merely on giving a notice for the specified period or on payment of salary in lieu thereof. At page 633, the Court observed thus:

Applying the principle laid down in the above case Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, to the present Rule, I find on scrutiny of the Rule that it does not lay down and principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken. The Rule, thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 148 (3) equally applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of Article 14 of the Constitution.

On behalf of the State, reliance was placed on the decision of the Supreme Court in Pannalal Binjraj v. Union of India AIR 1967 SC 397. Section 5 (7-A) of the Indian income tax Act, empowered the Commissioner to transfer any case from one income tax. officer to another outside the area where he (Assessee) resided or carried on business. The power of transfer that is conferred was challenged as violative of the fundamental rights under Article 14 of the Constitution. The contention was rejected on the ground that the power was vested not on minor officials, but on top ranking officials like the Commissioner of income tax and the Central Board of Revenue, and this power is discretionary and not discriminatory and that abuse of power may not easily occur where the discretion is vested with the high officials. This decision cannot be relied upon by the State as the unguided discretionary power is vested not with high officials. The power is given among other officials to the Revenue Divisional Officer or any other officer authorised by the Government in that behalf. The power of transfer of a case from the file of one officer to another cannot be equated with the power given to an officer without any guidance to requisition the entire stock of paddy. The decisions in Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, and Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., are more on this point. Following the principles laid down in those decisions, I find that the uncontrolled and uncanalised power conferred on the officers under Clause (4) of the impugned order is violative of Article 14 of the Constitution of India.

The validity of the said clause, clause-(4), of the impugned order is also challenged on the ground that the authority could not direct the sale of the paddy at the controlled price to the Government. The law provides that when a person is deprived of his property, he should be compensated. The compensation cannot be illusory. It must be a just equivalent of the value of the property deprived. In dealing with the validity of the Sugar Control Order, 1955, which was made under the Essential Commodities Act, 1955, the Supreme Court in D.S. and Diwan Sugar and General Mills (Private) Ltd. and Others Vs. The Union of India, found that Clause (5) provided that the Government should take into account (i) price or minimum price fixed for sugarcane, (ii) manufacturing cost, (iii) taxes (iv) reasonable margin of profit for the producer and or trade and (v) any incidental charges. The Court held that in fixing the price, all reasonable factors have been taken into account. The price thus fixed for essential commodities should be a fair price and all factors necessary for fixing a fair price should be taken into account. If the Act itself provided for the manner in which the price should be fixed and if it cannot be challenged as not fair, the price so fixed cannot be disputed.

Before the Essential Commodities Amendment Ordinance, 1966 came into force on 12th July 1966, the provisions relating to the fixation of the price of an essential commodity was provided for in Section 3(3) of the Essential Commodities Act, 1955. It ran thus:

(3) Where any person sells any essential commodity in compliance with an order made with reference to Clause (f) of Sub-section (2), there shall be paid to him the price therefor as hereinafter provided:

(a) Where the price can, consistently with the controlled price, if any fixed under this section, be agreed upon, the agreed price ;

(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any ;

(c) where neither Clause (a), nor Clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.

Thus, the Sub-section provided for fixation of the price on agreement consistent with the controlled price. In case of no such agreement, the price is calculated with reference to the controlled price. When the price cannot be fixed under the two Sub-sections (a) and (b), the price should be calculated at the market rate. By an amendment to Section 3 by Act XIII of 1957, Section 3-A was introduced which empowered the Central Government to fix a controlled price for foodstuff. Any notification, "issued under this section was to be in force for three months. This power of the Central Government u/s 3A was not delegated to the State Government. So Section 3-A of the Act should be left out of account. After the Essential Commodities Amendment Ordinance, 1966, came into force Section 3-B was introduced. It provided that where any person is required by an order made with reference to Clause (f) of Sub-section (2) to sell any grade or variety of foodgrain, there shall be paid to that person such price for the food grain as may be specified in that order having regard to (i) the controlled price, if any, fixed under this section or by any other law for the time being in force for such grade or variety of foodgrains ; and (ii) the price for such grade or variety of foodgrains prevailing or likely to prevail during the post-harvest period in the area to which that order applies. The explanation to Section 3-B provided that post-harvest period in relation to any area meant a period of four months beginning from the last day of the fortnight during which harvesting operations normally commenced. After the coming into force of Section 3B of the Act, the price should be fixed having regard to the controlled price, if and, u/s 3, and the price for such grade or variety of foodgrains prevailing or likely to prevail during the post-harvest period in the area to which that order applied. Thus, in fixing the price, regard must be. had to the controlled price and the market price during the post-harvest period prevailing in a particular area. Under Sub-clause (ii) to Section 3-B, the prevailing market rate in the area will have to be taken into account. Though Section 3-B came into force on 12th July 1966, it does not appear that prices were fixed as required u/s 3-B. The Government in exercise of its power, conferred u/s 3 of the Essential Commodities Act, 1955 lead with notification No. G.S.R. 906). dated 9th June 1966, of the Government of India, Ministry of Food and Agriculture, made the Madras Paddy (Maximum Prices) Order, 1966. Paddy was classified into three categories: fine, medium and coarse. The maximum prices fixed per quintal of the fine variety is Rs. 45, while that of medium is Rs. 42 and coarse is Rs. 40. The order [Madras Paddy (Maximum Prices) Order, 1966] does not disclose that in fixing the prices, the requirements of Section 3 (3) of the Act, Act X of 1955, as it stood then, were followed for, there is no reference in the order to the controlled price which has to be taken it to account for fixing the price that shall be paid to a person who sold the essential commodity in compliance of Section 3 (2) (f) of the Act. The other course relating to the fixation of price, viz., an agreed price or the market rate prevailing in the locality on the date of the sale has also not been arrived at. The Government u/s 3 (2) (c) is empowered to fix the controlled price at which any essential commodity may be bought or sold. But that price will be different from the one that will have to be fixed u/s 3(3) of the Act. On that date when the Madras Paddy (Maximum Prices) Order, 1966 was issued, i.e., on 8th August 1966, Section 3B of the Act had come into force and any order for fixing the price to be paid to a person who sold the paddy under Clause (f) of section (3) (2), should satisfy the requirements of Section 3-B, namely, the price should be fixed having regard to the controlled price and the rate prevailing or likely to prevail during the post-harvest period in the area. Section 3-B of the Act has provided for a fair price to the agriculturist by directing fixation of the price having regard to the controlled price, the market rate in the post harvest period with reference to a particular area. This has not been done under the Madras Paddy (Maximum Prices) Order, 1966. To the extent to which Clause (4) of the impugned order empowers the authority to require a person to sell his stock at the controlled price, it is not in accordance with: the provisions of the Essential Commodities Act, 1955, and the benefit conferred on the agriculturist to have the market price of the post-harvest period in the area to be considered is denied to him. If the challenge to the validity of Clause (4) of the impugned order had only been on the basis that the person who sold the paddy under the order is entitled to higher price, the validity of the entire order may not be struck down.

In Writ Petition No. 1741 of 1964 (P. Duraiswami Reddiar v. Revenue Divisional Officer, Chingleput and Anr.) on the file of this Court, the provision as to fixation of price under Clause (4) of the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, was challenged as not being in accordance with the powers conferred under Rule 125 (3) (a) of the Defence of India Rules, as the price fixed under Clause (4) of the order was at the controlled rate while Rule 125 (3) (c) provided that in fixing the price regard should be had to the price prevailing or likely to prevail for that foodgrain during the post-harvest period in the area to which the order applied. It was held that Clause (4) of that order not having provided for a price in accordance with Rule 125 (3) (c) of the Defence of India Rules is defective. The validity of the said clause was not challenged on any other ground and it was held that the error which is only in fixing up the price cannot have the effect of invalidating the entire clause. In this case, the validity of Clause (4) of the impugned order is not only challenged on the ground that the direction to sell at the controlled price is not in accordance with the Essential Commodities Act, but also on the ground that the power conferred on the authority to requisition the entire stock is violative of Articles 14 and 19 of the Constitution of India. As Clause (4) is violative of Articles 14 and 19 and is additionally defective as the direction to sell at controlled price is not in accordance with the Essential Commodities Act, 1955, Clause (4) of the impugned order in its entirety should be found to be invalid.

The validity of Clause (5) of the impugned order is challenged on several grounds. It is contended that the power of entry, search and seizure conferred on the authorities is violative of the fundamental rights of the Petitioners to property. It was submitted that the power to enter, search and seize without any restriction should either be struck down as wholly arbitrary or should be held to be subject to the provisions of the Code of Criminal Procedure. It was next contended that the power of entry, search and seizure was conferred on officers occupying even low status in the hierarchy of officials and the authorisation of any officer in this behalf by the Commissioner or the District Collector cannot be upheld. It was further contended that Clause (5-e) of the order authorises an officer, on suspicion of contravention of any of the provisions of the order, to seize the paddy and other articles mentioned in the Sub-section, u/s 3 (2) (j) of the Act, the Government it empowered to make rules providing for entry and search of premises, vehicles, etc., and seizure of any article in respect of which the officer may hare reason to believe that a contravention of the order had been or is being or is about to be committed. While the power of the Government to issue an order is confined only when an officer has reason to believe that a contravention of the order has been made Clause (5) of the impugned order enables the officer to act on suspicion. To this extent, the power was challenged as being excessive.

The procedure regulating search and seizure is found in the Code of Criminal Procedure. Section 5 (2) of the Code provides

All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions (in the Code of Criminal Procedure), but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into trying or otherwise dealing with such offences.

The search and seizure being steps in relation to investigation or inquiry, they should be done according to the provisions of the Code of Criminal Procedure, but subject to any procedure that might have been laid down by the special enactment. Section 165(1) of the Code of Criminal Procedure confers the power of search on the police officer. It runs thus:

Whenever an officer in charge of a police-station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

In M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, the Supreme Court upheld the validity of the power of search and seizure under the Code of Criminal Procedure though a seizure and carrying away is a restriction of the possession and enjoyment of the property seized. As the restriction is only temporary for the limited purpose of investigation it was held that there is no violation of Article 19 (1) (f) of the Constitution.

It has been held in Wazir Chand Vs. The State of Himachal Pradesh, that any seizure of property not sanctioned under Sections 51, 96, 98 and 165 of the Code of Criminal Procedure or under any other law, infringes the fundamental rights of the citizen guaranteed under Articles 19 and 31 of the Constitution. In The State of Rajasthan Vs. Rehman, Subba Rao J., as he then was, at page 212 observed:

As search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power.

The learned Judge after pointing out that certain conditions have been imposed u/s 165 of the Code of Criminal Procedure, observed:

There is also no reason why conditions should be imposed in the matter of a search by the police officer u/s 165 of the Code, but no such safeguard need be provided in the case of a search by the excise officer under the Rules.

Pointing out the provisions in Section 165, Code of Criminal Procedure for the recording of reasons before a search is made, the learned Judge observed that the recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that was ignored, it would be a search made in contravention of the provisions of the Code. In Radhakishan Vs. State of U.P., it has been held that if the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened, the search could be resisted by the person whose premises are sought to be searched. Though the process of search and seizure interferes with the right of the citizens, it has been held to be not an infringement of the fundamental rights, as it is only a temporary restriction for the limited purpose of investigation. In M.P. Sharma''s case AIR 1964 SC 309 referred to above, the Supreme Court proceeded to observe that the power of search and seizure is an overriding power of the State for the protection of social security and that power is always regulated by law. The Court observed that searches of the kind they were concerned with, were under the authority of a Magistrate and, therefore, the issue of a search warrant is normally the judicial function of the Magistrate, and when such judicial function is interposed between the individual and the officers'' authority for search, no circumvention thereby of the fundamental right is to be assumed. When the special enactment provides for the procedure, the procedure laid down in the Code of Criminal Procedure need not be followed. But, there must be sufficient safeguards in the special enactment relating to search and seizure. If sufficient safeguards are not provided for in the special enactment for the protection of the individual citizen, the search and seizure would be illegal. It is necessary before the provisions of search and seizure are held to be valid, there should be in the provisions reasonable safeguards against arbitrary exercise of power.

A Bench of this Court in Ramkishan v. Commissioner of Commercial Taxes ILR (1966) 1 Mad. 267 has held that the power of search and seizure conferred by Section 41 (2) to (4) of the Madras General Sales Tax Act was violative of Article 19 (1) (f) and (g) of the Constitution. Sub-section (3) of Section 41 provided that the officer may for reasons to be recorded in writing seize. It was observed that the section did not provide as to whether the reasons were to be recorded before or after the seizure and whether there was an obligation to forward the reasons so recorded to higher officials to ensure proper exercise of the power. In the circumstances, it was found that the power conferred on the officers was totally unreasonable. The Court also pointed out that there was no provision for search to be conducted in the presence of independent witnesses. There were no restrictions regarding the power of the officers to search and the Court observed that the search could be conducted by the officers at their will and whim and they were not obliged to tell or explain to anyone in the commercial tax department as to why and under what circumstances, they exercised the power and the manner of the search.

Even the safeguards provided for in Sub-section (3) of Section 41 of the Madras General Sales Tax Act, 1959, regarding the recording of reasons, are not found in the impugned order. By Clause (5) of the impugned order, the officer with a view to securing compliance with the provisions of the order or for satisfying himself that the provisions have been complied with is empowered to enter, search and seize the articles. The protection regarding the recording of the belief in writing with particulars of the purpose for which the search is to be made and the place within which the search is to be held is not given in the impugned order. The officer is not under any obligation to send copies of the records made by him giving the reasons for the search to any superior officer. He need not secure the presence of any witness at the time of search, nor give any receipt to the persons from whom the paddy is seized. It may be permissible for the authorities to conduct the search and seizure according to the procedure laid down under the Code of Criminal Procedure. If the contention of the State is that the search and seizure could be conducted without any restriction, as no restriction is provided for in the order, the power of search and seizure would be illegal, as no safeguards are provided for in the order against the arbitrary interference with the rights or properties of the persons. The power conferred on the officers is without any restriction whatsoever and the decision in Ramkishan v. Commissioner of Commercial Taxes ILR (1966) 1 Mad. 267 would be applicable. The power of search and seizure can be validly exercised as provided for in the Code of Criminal Procedure, or if adequate provisions are made in the special enactment to safeguard the rights of the persons. In the absence of such safeguards in the impugned order and as the contention of the State is that the provisions of the Code of Criminal Procedure, is not applicable, the power of search and seizure will have to be held as unreasonable restriction on the Petitioners'' right to property under Article 19 of the Constitution.

The power conferred under Clause (5) of the order is also challenged on the ground that it is in excess of the powers conferred u/s 3 of the Essential Commodities Act, 1955. Section 3 (1) of the Act enables the Government by an order to provide for regulating or prohibiting the production, supply and distribution of essential commodities. Section 3 (2) (j) provides that an order may be passed by the Government regarding any incidental and supplementary matters including in particular the entering and search of premises, vehicles, vessels, etc., the seizure by a person authorized to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed. The Government by virtue of powers conferred under Clause (j) of Sub-section (2) of Section 3 of the Act can issue an order authorising a person to enter and search the premises and to seize the articles if the officer has reason to believe that a contravention of the order has been, is being, or is about to be committed. Clause (5) of the impugned order enables the officer to enter, search and seize with a view to securing compliance with the provisions of this order or to satisfying himself that the said provisions have been complied with. These powers are wider than what is contemplated u/s 3 (2) (j) of the Act, for, the power can be invoked only when the officer has reason to believe that a contravention of the order has been, is being, or is about to be committed. As the power of entering a premises, searching and seizing the articles is a drastic step, it can only be used for the purpose of achieving the object of the legislation. The object of the legislation is for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. It may be necessary to enter, search and seize articles for the enforcement of the provisions of the Act, or to prevent evading the provisions of the Act, but the powers conferred u/s 3 (2) (j) can be invoked only when the officer has reason to believe that a contravention of the order has been, is being, or is about to be committed. The impugned order on the other hand would empower the officer without having any reason to believe, merely for the purpose of satisfying himself that the provisions of the order have been complied with on suspicion to enter, search and seize articles. It may not be necessary at all that the officer need have any reasonable belief that a contravention of the order has been, is being, or is about to be committed. The power conferred under Clause (5) is, therefore, excessive and cannot be supported, as one made u/s 3 (2) (j) of the Essential Commodities Act.

Further, Clause (5) (e) of the impugned order empowers an officer to seize the stock of paddy if he suspects that any of the provisions of the order have been contravened. This power is also in excess of what is contemplated u/s 3 (2) (j) of the Act, for, the power under the said section can only be invoked when the officer has reason to believe, and not when he suspects that there had been a contravention of the provisions of the order. On this ground also, the power conferred on the authorities to enter, search and seize has to be declared as not valid.

The conferment of powers on officers not holding high ranks in the official hierarchy to search and seize is challenged as an infringement of the Petitioners'' rights. Clause (5) enables the Commissioner and the District Collector to authorize any officer to enter, search and seize. As the clause now stands, the Commissioner and the District Collector may authorise even persons who have a lower rank than that of a sub-inspector of police. To this extent, the challenge will have to be upheld. If the procedure that had to be followed for entering a premises and conducting a search has been laid down and sufficient protection is given to the rights of persons whose property is searched, the conferment of powers oh all the officers enumerated in the clause would have been justified. It is sufficient to say that the power conferred on the commissioner and the District Collector to authorise any other officer to seize is open to objection that the protection afforded by the Constitution is infringed. The objections to the provisions of entry, search and seizure will have to be upheld on the ground that sufficient restrictions are not provided for ensuring the rights of the persons whose property is searched. On the contention of the State that the Code of Criminal Procedure is not applicable, the power of entry, search and seizure without any restriction whatsoever will have to be struck down. The objection that the power of entry, search and seizure is in excess of the powers conferred by Section 3 (2) (j) of the Act, in that it authorises the officer to act on suspicion and for the purpose of satisfying himself that the provisions of the order had been complied with, is also to be upheld. The power conferred on the Commissioner or the District Collector to authorise any person to enter, search and seiase is also in excess of the powers conferred under the Act.

Mr. V.P. Raman, the learned Counsel for the Petitioners submitted that paddy would not be an essential commodity within the meaning of the Essential Commodities Act and, therefore, the impugned order, in so far as it restricts the rights of the persons to deal with paddy, is unsupportable Essential commodity is defined, among other things, as foodstuffs, including edible oilseeds and oils. Foodcrops include crops of sugarcane. The contention is that to be a foodstuff, it must be something which can be taken as a food either as it is or after cooking. Paddy cannot be taken either as it is or after cooking. Before paddy is converted into rice, which is a foodstuff, an industrial process of hulling will have to be gone into. In support of this contention, the learned Counsel for the Petitioners referred to a decision in The State of Bombay Vs. Virkumar Gulabchand Shah, . The Court was considering the question whether turmeric is a foodstuff. The Court observed that the word food can be used in a wide as well as a narrow sense, and much must depend upon the context and background. Regarding the question whether turmeric is a foodstuff, the Court held that it was not entirely free from any difficulty. Regarding the definition of the word foodstuff, the Court held:

In one sense it has a narrow meaning and is limited to articles which are eaten as food for purpose of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric. In a wider sense, it includes everything that goes into the preparation of food proper (as understood in the narrow sense to make it more palatable and digestible). In my opinion, the problem posed cannot be answered in the abstract and must be viewed in relation to its background and context.

The Court further held that foodstuff is anything used as food and any substance of food value as protein, fat, etc., entering into the composition of a food. But the word is commonly used with reference only to those articles which are eaten for their nutrition value and which formed the principle ingredient for purposes of growth, work, etc., and for the maintenance of the vital processes. In Hinde v. Allmond (1918) 87 L.J.K.B. 893 it was held that tea is not a food. In Atulya Kumar De and Others Vs. The Director of Procurement and Supply and Others, it was held that paddy is a foodstuff. The question is not entirely free from difficulty, as foodstuff is normally understood as anything used as food or any substance of food value entering into the composition of a food. As already pointed out, the Supreme Court in The State of Bombay Vs. Virkumar Gulabchand Shah, construed the word foodstuff as being commonly used with reference to these articles which are eaten for their nutrition value and which formed the principal ingredient of cooked or uncooked food such as wheat, rice, meat, fish, milk, bread, etc. The Supreme Court took the view that legislations enacted in pressing national emergency in which the very existence of the State 1 is at stake, the word should be construed more liberally in favour of the Crown or the State than peace-time legislation. Giving a liberal meaning to the word foodstuff and following the decision of the Calcutta High Court in Atulya Kumar De and Others Vs. The Director of Procurement and Supply and Others, . I hold that paddy is a foodstuff and reject the contention of the learned Counsel for the Petitioners.

The next contention raised by the learned Counsel for the Petitioners is that the impugned order is invalid in that there is nothing in the order to indicate that the State Government was satisfied that control of paddy was necessary and expedient for maintaining supply and for equitable distribution, and in the absence of such satisfaction by the Government, the order cannot be valid. Section 3 of Act X of 1955 enables the Government to pass an order to provide for regulating or prohibiting the production, supply and distribution of an essential commodity, if it is of the opinion that it is necessary or expedient so to do for maintaining or increasing the supply of any essential commodity, or for securing equitable distribution and availability at fair prices. The contention is that there must be some material to show that the Government was of the opinion that it is necessary and expedient for maintaining or increasing supplies of the essential commodity or for securing its equitable distribution, that the order should be promulgated. The impugned order does not disclose that the authority was of the opinion that it was necessary or expedient that the order should be passed for maintaining or increasing the supplies or for securing their equitable distribution. In Hamdard Dawakhana (Wakf), Delhi and Another Vs. Union of India (UOI) and Others, it was contended that the Fruit Products Order, 1955, which was purported to have been passed u/s 3 of the Essential Commodities Act, 1955 was not valid as it did not purport to say that before the order was issued, the Central Government had formed the opinion that it was necessary or expedient to issue the order for maintaining or increasing the supplies of the commodities in question. Referring to this contention, the Supreme Court at page 1172 held:

Mr. Pathak contends, and rightly, that the condition prescribed, by the first part of Section 3 (1) of the Act is a condition precedent and it is only when after the said condition is satisfied that the power to issue a regulatory order can be exercised by the Central Government.

But the Court declined to interfere on the ground that the point was raised for the first time in the appeal and not before the High Court, and if it had been raised, the Respondents would have had a chance to meet it. It was also stated that it would be open to the Respondents to prove that such an opinion had been formed, even though the fact was not mentioned expressly in the order itself.

In these petitions, this point is stated by the Petitioner in paragraph IX of his affidavit in Writ Petition No. 815 of 1967 in the following terms:

The very justification and basis of the Order u/s 3 of the Act is founded upon a necessarily precedent satisfaction of the concerned Government regarding necessity or expediency of passing an order thereunder. Equally, the delegate u/s 5 of the Act has also necessarily to be so satisfied. The order issued by the State Government nowhere states in its preamble or in its body that in its opinion, there was any necessity or expediency to pass an order thereunder. The absence of any specific avertment as to the satisfaction by the concerned Government cuts at the very root of the notification.

This objection specifically taken has not been met in the counter affidavit. The reply in the counter affidavit in paragraph 10 is that

so long as the Essential Commodities Act specifically mentions the standards or the policies for the exercise of the power of requisition, it is not necessary, that any order issued by virtue of such powers should also make mention of the expediency of passing such an order.

As pointed out by the Supreme Court, it is open to the Government to prove that it had formed the opinion at the relevant time even though the fact had not been expressly stated in the order itself. The Court further held that the condition prescribed by the first part of Section 3 (1) of the Act is a condition precedent and it is only when and after the said condition is satisfied, that the power to issue a regulatory order can be exercised by the Government. The Court declined to interfere only on the ground that the point was not raised in the High Court and that the Government was not given an opportunity to prove that the Government had formed the necessary opinion at the relevant time, indicating thereby that if the Government had been given an opportunity and it had not availed it, the Court would have held that the condition precedent had not been satisfied and that the order had not been validly issued. The State Government though had an opportunity of establishing that it had formed such an opinion at the relevant time by stating the necessary facts in the counter affidavit, has failed to do so. I find it difficult to resist the force of the contention of the learned Counsel for the Petitioners supported by the authority of the Supreme Court that the order is vitiated, in that the condition precedent for making an order u/s 3 of the Essential Commodities Act, 1955 had not been complied with. But it is a notorious fact that paddy was the problem of the State and it was in acute shortage at the time when the impugned order was passed. But whether the Government was really of the opinion that it was necessary or expedient for maintaining or increasing the supply of paddy, or for securing its equitable distribution and availability at fair price that the impugned order should be passed, will depend upon various factors which would have been within the knowledge of the Government. Though it might have been most likely that the Government was satisfied about the existence of these conditions, the Court will not be justified in taking judicial notice that the Government should have formed the necessary opinion. In the circumstances, I find myself unable to reject the contention of the learned Counsel for the Petitioners that the condition precedent for passing the impugned order by the State Government had not been complied with.

The Petitioners in Writ Petition Nos. 814 of 1967 and 815 of 1967 submitted that the officers had no power to arrest without a warrant any person who contravenes the provisions of the Act, and that the confiscation of the paddy is contrary to the specific provisions of the Essential Commodities Act, 1955.

Mr. V.P. Raman submitted that the failure to declare the stock of paddy as required under Clause (3) of the impugned order would be a contravention of rule made under Clause (h) and (i) of Sub-section (2) of Section 3 of the Act, and will be punishable with imprisonment for a term which may extend up to one year, and as such a non-cognizable offence. The impugned order is passed for securing control of supply and distribution of an essential commodity, and for requiring a person holding stock of the essential commodity to sell it to the Government or to any of the persons mentioned in Section 3(2)(b) of the Act. Section 3 (2) (h) of the Act empowers the Government to issue orders for collecting any information or statistics with a view to regulating or prohibiting the movement of foodgrains, and Clause (i) of Section 3 (2) empowers the Government to issue orders requiring persons engaged in the production supply and distribution of, or trade and commerce in, any essential commodity, to maintain and produce for inspection such books, accounts and record relating to their business and to furnish such information relating thereto. So, Clause (3) of the order so far as it directs a person to make a declaration of the quantity of paddy in his possession and control would be for the purpose of collecting information with a view to regulating or prohibiting sale of paddy. The failure to give such information would be a contravention of an order passed u/s 2 (h) of the Act, and will, therefore, be a non-cognizable offence, and the police officer will not be entitled to arrest the person without a warrant. The question whether the furnishing of incorrect declaration by any wilful act or omission regarding the stock of paddy or rice in his possession which is a violation of Clause (6) of the order, is a cognizable offence or not need not be considered as it is not contended by the State that any false information was given by any of the Petitioners herein.

The impugned order does not make mention about the right of the State to confiscate the paddy seized from the producer. On the other hand, Section 6A, which was introduced by amending Act XXV of 1966, provides that no foodgrains seized from a producer in pursuance of an order made u/s 3 of the Act shall be confiscated under the Act. Though the impugned order is silent about the right to confiscate, Section 6A is clear that the commodity seized from the producer shall not be confiscated.

One other question of law remains to be considered before the facts in each of the writ petitions are taken up for consideration. In Writ Petition Nos. 2671 of 1966 and 2358 of 1966, the Petitioners are Hindu religious institutions. Under the Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1964, religious institutions were exempted under Clause (7). By G.O. No. 9450/A.V./65-2, Food and Agriculture Department, dated 12th April 1965, the Government exempted the operation of the orders to religious institutions. In Clause (7) of the impugned order, viz., Madras Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, the exemption granted to religious institutions was taken away. But the learned Counsel for the Petitioners relies on the savings clause in the order which provides that any order which is in force immediately before the commencement of the impugned order and which is consistent with this order shall continue in force and shall be deemed to have been made or issued in pursuance of the impugned order. Though under Clause (7), religious institutions had been omitted, the Government is empowered under Clause (7) Sub-clause (in) to exempt any other person or institutions as may be specified by the Government. The Government, consistent with its powers, could exempt the operation of the order to religious institutions. The Government order referred to above exempting religious institutions from the operation of the then order, would not be inconsistent with the impugned order and, therefore, under the saving Clause (8) of the impugned order would continue to be in force. This point was conceded by the learned Advocate-General. The result will be that the two religious institutions would be exempt from the operation of the impugned order.

Now, the facts in each of these writ petitions may be referred to briefly. In Writ Petition No. 2671 of 1966, the Jeer of Vanamamalai Mutt alleged that he had measured about 1,800 bags of paddy to the Government and was having 1,315 kottahs of paddy on 15th October 1966. It is alleged that on 15th October 1966 a notice was served by the Revenue Divisional Officer calling upon the Petitioner to measure out, to five parties indicated in the order, 1,634 bags of paddy within three days. The Petitioner made representations to the District Revenue Officer for permitting him to retain paddy required for the mutt. But, before any order could be passed on the representation made by the Petitioner for permission to retain the required amount of paddy, the Tahsildar and the taluk supply officer, Nanguneri, sealed the granaries of the mutt and refused access to the Petitioner. The District Revenue Officer on 23rd October 1966 passed an order directing the mutt to sell the surplus over their requirements till April 1967 in the stock, in excess of 1,338 bags to the Government agents. While so the Tahsildar and the taluk supply officer took away the entire stock of paddy in spite of the request made by the mutt that they should be allowed to retain 1,338 bags of paddy. It is stated in the affidavit that even according to the order of 15th October 1966, the Petitioner was given three days time to measure 1,634 bags of paddy to five parties and that the named parties did not turn up. A serious allegation is made in the affidavit by the Petitioner against the tahsildar and the taluk supply officer, Nanguneri, for sealing the granaries and measuring out the entire stock of paddy without permitting the Petitioner to retain 1,338 bags of paddy, as per the directions of the District Revenue Officer. It is also stated that when the officer were removing the paddy forcibly, no one on behalf of the mutt was allowed to be present to find out how much of paddy was actually being removed. Neither the tahsildar nor the taluk supply officer has filed any statement controverting these allegations. But the Collector of Tirunelveli has filed an affidavit in which the allegations are generally denied. It has been pointed out by Courts that when a serious allegation of misconduct is made against a certain officer, the proper person to deny the allegation is the officer against whom the allegation is made. The Collector could not have known personally as to what happened and the proper persons to state the case on behalf of the Respondents is the taluk supply officer and the tahsildar. The affidavit of the District Collector generally denying the allegations made in the affidavit without personal knowledge in the matter cannot successfully rebut the allegations of the Petitioner. Further, in the absence of a specific denial by the officers concerned, I do not see any reason for rejecting the allegations made by the Petitioner. An A.G.O. was issued by the Government exempting the operation of the order to religious institutions and it has been found that the said G.O. would be valid under the impugned order also. Apart from it, the conduct of the authorities in sealing the godowns of the Petitioner on 18th October 1966, before the expiry of the three days without giving a chance to the Petitioner to comply with the direction of the District Revenue Officer and removing the whole of the paddy in the granaries without making allowance for the requirements of the mutt, is arbitrary, and illegal and cannot be supported in law.

In Writ Petition No. 2358 of 1966 the allegations are that the Petitioner was not permitted to harvest the paddy in his field. He appealed to the Chief Minister, Food Minister and other authorities for relief and subsequently he was permitted to harvest a portion of the lands, about 20 acres. But the authorities posted thalayaris in the thrashing floor, even before the share of the lessees was measured out. A few days later, on 20th September 1966, the taluk supply officer and the revenue officers came to the thrashing floor and compulsorily measured and removed the entire harvested paddy. It is not stated under what authority the State could prevent the harvest of the paddy by the owner of the land. Under the impugned order, the Petitioner is given seven days'' time after he comes into possession of the paddy to make a declaration as to the stock in his possession and the Government and the authorities are entitled to requisition the stock under Clause (4). The action of the authorities in not permitting the Petitioner to measure out paddy to the lessees and in posting thalayaris in the thrashing floor to grab the paddy seems to have no warrant in law. In this case, the serious allegations made against the taluk supply officer and the other revenue officers are no denied by anyone of the officers against whom the allegations are made. On the other hand, an affidavit is filed by the Collector wherein it is stated that on 29th September 1966, the taluk supply officer persuaded the mutt authorities to receive the demand notice and measure the paddy available in their shed at Nagalkadu to the authorities agents of the Government. It is further stated that the taluk supply officer contacted the agent, who after consulting the Peedathipathi, came and told the officer that he may measure the paddy available, and then only the taluk supply officer began to measure the paddy and the agent of the Peedathipathi made no objection or protest.

As to what happened on 20th September 1966, whether the taluk supply officer approached the agent and whether the measurement of paddy was after obtaining the consent of the Peedathipathi would be within the personal knowledge of the taluk supply officer. It is regrettable that the taluk supply officer has not chosen to contradict the statement that the entire paddy was compulsorily measured out and removed from the thrashing floor.

That the plea of consent by the Peedathipathi cannot be accepted can be seen from the correspondence. On 15th September 1966, the Peedathipathi sent a telegram to the District Collector stating that the taluk supply officer obstructed the harvest. The Peedathipathi had also intimated that he was willing to measure the excess paddy. On 16th September 1966 he gave a telegram to the District Supply Officer and the Collector requesting permission to take the paddy from the thrashing field and intimating his willingness to measure the excess paddy. On the same day, the Petitioner sent a telegram to the Commissioner of Hindu Religious Endowments requesting him to interfere and to permit him to take the paddy from the field. On the same day, telegrams were sent to the Chief Minister and the Food Minister intimating his willingness to measure out the excess paddy. On the 19th, the Petitioner addressed communications to the Collector and the Commissioner of Hindu Religious Institutions praying permission to take the harvested paddy to the mutt granary. On 25th October 1966, the Petitioner wrote to the tahsildar complaining about his vindictive attitude and the measurement of paddy without his consent on 20th September 1966. In the face of these documents, it is highly improbable that the Peedathipathi would have consented to measure out the entire stock of paddy to the taluk supply officer without any protest. The stand on behalf of the Government that it was with the consent cannot, therefore, be accepted. As already pointed out, the Petitioner as a religious institution had been exempted from the operation of the requisitioning order. He had clearly indicated that he was willing to measure the excess paddy, I have no reason to reject that statement. The conduct of the taluk supply officer in obstructing the harvest and subsequently removing the entire paddy from the thrashing floor is highhanded and thoroughly unjustified in law.

In Writ Petition Nos. 814 of 1967 and 815 of 1967, it is complained that the officials entered the premises on 26th March 1967 where paddy was stocked and seized the paddy. The Petitioners demanded the authority under which action is taken, but without heeding to their protest, the officials went on to seize the stock. No requisition order was served on them. It is alleged that the Petitioners were arrested and were not released even though bail was offered. It is admitted in the counter-affidavit that no requisition order was passed. It is also not stated that the officers were of the opinion that the Petitioners were taking steps to evade the provisions of the Act. The power of entry search and seizure appears to have been resorted to as in their opinion the Petitioners did not comply with the requirements of Clause (3) of the order. The officers might have been justified to invoke the powers under Clause (5) if they had reasonable belief that a contravention of the order has been, is being, or is about to be committed. The specific allegations made in the affidavits that the Petitioners were arrested and not let on bail and were treated by the police officers in an unlawful, insulting and disgraceful manner, had not been denied. In the circumstances, I find that there was no justification for their entry, search and seizure and the arrest of the Petitioners.

In Writ Petition No. 997 of 1967, it is stated that the requisitioning order was served by affixture and within three days from the service of the notice, the officers entered the premises and seized 39 bags of paddy. The Petitioner submits that his personal requirements were not properly taken into account. It is unnecessary to discuss the merits of this case, as it is not possible to state whether the allowance made for the personal consumption of the Petitioner was sufficient or not. The decision in this writ petition can be rested on the ground that the impugned order is invalid in law.

Mr. V.P. Raman, the learned Counsel for the Petitioners submitted that the impugned order was passed and is administered in complete disregard of the rights of the agriculturists and on the basis that the grower of paddy is a criminal and the paddy a contraband article. Whether the agriculturist who grows paddy is entitled to any credit or not, the law does not regard him as a criminal or paddy which he had grown as a contraband article.

The grower of paddy is entitled to hold and dispose of his paddy in any manner he likes. But reasonable restrictions can be imposed on this right to hold and dispose of paddy in the interests of the general public. Reasonable restrictions in the interests of the general public can extend to total prohibition of the right to hold and dispose of property. But whether the total prohibition is valid or not would depend on the circumstances of each case. In considering whether total prohibition is valid or not, it has to be taken into account the nature of the evil that is sought to be remedied by such law, the ratio of the harm caused to individual citizen by the proposed remedy, to the beneficial effect reasonably expected to result to the general public and whether the restraint caused by the law is necessary in the interests of the general public. Total prohibition of the right to dispose of properties like paddy will be an unreasonable restriction, as the interests of the general public could not extend to depriving the agriculturist of the seed paddy and 1 paddy that is necessary for his agricultural operations till the next harvest and for consumption for himself and his family. For the paddy that is acquired, the grower is entitled to a reasonable compensation. The compensation cannot be illusory and it must be a just equivalent of the value of the paddy requisitioned. Normally in fixing the price, various factors will have to be taken into consideration such as the cost of production, a reasonable margin of profit to the grower, etc. But the manner of fixation of the fair price may be provided in the legislation itself taking into consideration the relevant facts. The Essential Commodities Act provides for the fixation of the price by taking into account the controlled price and the price of paddy that is prevailing or likely to prevail during the post-harvest period in the area to which the order applied. This method of assessment of the value of paddy is not contested under the Essential Commodities Act. In fixing the price it is important that the prevailing rate during the post-harvest period in the particular area will have to be taken into account. It is common knowledge that the price of paddy varies from place to place and from season to season. If the price in the post-harvest period in the area in which the paddy is requisitioned is higher, this fact will have to be taken into account along with the controlled price in fixing the price payable to the grower. While the grower is entitled to retain the minimum quantity required for himself and to dispose of the excess and be paid for as envisaged in the Essential Commodities Act, in the interests of the general public the Government is entitled to requisition the excess paddy and provide for enforcement of the provisions of the Act. In the interests of the general public and for the purpose of supply and distribution of paddy, which is essential for the society, the Government is entitled to insist the grower to part with the paddy in excess of his requirements on the conditions stated above. If the grower hoards his stock and refused to part with the excess paddy for the price fixed he becomes liable for the penal consequences. The Government may provide machinery for enforcement of the provisions of the order. This is sought to be achieved by requiring the grower to make a declaration of his stocks periodically to enable the authorities to requisition the excess stock. If the grower refuses to make a declaration or gives a false declaration, he is liable to be punished. If he fails to make a declaration, he will be guilty of a non-cognizable offence. The authorities can also be empowered to enter, search and seize paddy for enforcement of the provisions of the order after finding sufficient safeguards for the grower of paddy.

The impugned order is defective as it is violative of Article 14 of the Constitution of India, in that the order does not lay down any specific directions regarding the manner in which paddy should be requisitioned. Empowering an officer with unguided and arbitrary powers enabling him to discriminate between persons, would be violative of Article 14 of the Constitution of India. The power conferred on the authority under Clause (5) of the impugned order to enter, search and seize paddy is also violative of the rights of the grower under Article 14 and Article 19 of the Constitution, and is also excessive of the powers conferred by Section 3 of the Essential Commodities Act, 1955. As entry into the premises of a person, search and seize paddy is an exceedingly arbitrary power stringent statutory conditions should be imposed on the exercise of such power. Power of entry, search and seizure would not be invalid if it is exercised according to the provisions of the Code of Criminal Procedure. If the procedure is laid down in the special enactment, it can be followed, provided the special enactment provides sufficient safeguards against the infringement of the rights of the grower. In the absence of such safeguards, the unrestricted and uncontrolled power of entry, search and seizure of paddy conferred on the authorities is opposed to the Constitution. The power of entry, search and seizure can only be for achieving the objects of the enactment. Apart from the power of entry, search and seizure being opposed to the Constitution, it is excessive of the powers conferred by Section 3 of the Essential Commodities Act, 1955, as the power can only be invoked when the authority has reason to believe that a contravention of the order has been, is being, or is about to be committed. Empowering the officer to enter, search and seize paddy for satisfying himself that the provisions of the order had been complied with based on suspicion is excessive, and as such, invalid. The power cannot also be upheld, for, without sufficient directors, officers very low in the ladder are empowered and the Commissioner and the District Collector are also authorised to empower any officer to search and seize paddy.

Apart from the defects in the various clauses mentioned above, the entire order will have to be held as invalid, as the condition precedent to the passing of the enactment, viz., the formation of the opinion by the Government that it is expedient for maintaining or increasing the supply of paddy or for securing its equitable distribution and availability at fair price it was necessary to pass the impugned order, has no been established. The exemption granted to religious institutions under the previous order made in 1964, should be deemed to have been made under the impugned order also and as such, religious institutions are entitled to exemption from the operation of the impugned order.

The objections raised on behalf of the State that after the proclamation of the emergency, the Petitioners are not entitled to their fundamental rights under Article 19 (1) (f) of the Constitution or that the impugned order is one falling under Article 31 (2) of the Constitution and, therefore, the Petitioners are precluded from claiming the rights under Article 19 (1) (f) cannot be accepted.

In the result, the writ petitions are allowed. The seized paddy which are with the Government will be returned to the Petitioners. If the paddy had already been sold, they will be paid the price as contemplated u/s 3-B of the Essential Commodities Act, 1955. The Petitioners Writ Petition Nos. 2671 of 1966, 2358 of 1966, 814 of 1967 and 815 of 1967 will each be entitled to their costs Rs. 250. Taluk Supply There will be no order as to costs in Writ Petition No. 997 of 1967.

While concluding, I would place on record my appreciation of the able and thorough manner in which the petitions were argued by Mr. V.P. Raman.