ORDER
, 1974 (hereinafter referred to as 'the Levy Oredr' for the sake of brevity). Thereafter notice of procurement was issude under the Levy Order to the petitioners and others. Petitioners, therefore, filed this petition on 30th Januarty 1975 in a representative capacity under Order J, Rule 8 of the Civil Procedure Code. On 9th December 1976, an application for amendment of the petition was made and it was granted. On 5th April 1977, another application for amendment to the petition was made and was granted. It is that Levy Order which is challenged by the petitioners on several grounds.
2. Mr. I.M. Nanavaty who appears on behalf of the petitioners has raised the following contentions:
(i) Levy Order is not in conformity with the provisions of Section 3(3A) and Section 3(3B) of the Essential Commodities Act, 1955.
(ii) Paddy is a foodstuff as distinguished from foodgrains. Therefore, Section 3(3B) does not apply to paddy.
(iii) Assuming that paddy is a foodgrain and assuming further that Section 3(3B) applies to it, the Levy Order is bad because it does not satisfy the conditions specified in amended Section 3(3B).
(iv) Central Act 92 of 1976 is ultra vires Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution.
3. The first three contentions raised by Mr. Nanavaty can be appropriately considered together. Several arguments have been raised by Mr. Nanavaty in support of these contentions. Before we examine the arguments raised by him, we may briefly refer to the scheme of the Act in so far as it is relevant for the purpose of answering these contentions.
4. Section 2(a) of the Essential Commodities Act, 1955 defines the 'essential commodity'. 'Essential commodity,' inter alia, means 'foodstuffs, including edible oilseeds and oils'. It may be noted that the expression 'foodgrains' does not occur in Section 2 which is the definition section. Clause (b) of Section 2 defines 'food-crops' in the following terms: 'food-crops' includes crops of sugarcane. Sub-section (1) of Section 3 specifies the powers which can be exercised for controlling production, supply, distribution etc. of essential commodities. Sub-section (1) of Section 3 provides as follows:
If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or incresing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Having enacted such a general provision in Sub-section (1) of Section 3, the Parliament has proceeded to particularise the matters in Sub-section (2) of Section 3. It inter alia, provides as follows:
Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide.
... ... ... ... ... ...(f) for requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Govenment 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 pecified in the order.
It is necessary to pinpoint the object which Clause (f) in Sub-sections (2) of Section 3 has In order to do so, we may provides as follows:
Without prejudice to the generality of the powers conferred by Sub-section (1), and order made thereunder may provide.
(c) for controlling the price at which any essential commodity may be brought or sold.
Whereas Clause (c) of Sub-section (2) of Section 3 appears to provide for general price control, Clause (1) of Sub-section (2) of Section 3 provides for compulsory sale of an essential commodity either to the Central Government or to the 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. Clause (f) of Sub-section (2) of stances as may be specified in the Order. Clause (f) of Sub-section (2) of Section 3, therefore, is all pervasive inasmuch as it does not confine compulsory sale of an essential commodity either to the Central Government or to the State Government or it any officer or agent of such Government but it provides for compulsory sale of an essential commodity to any other person or class of persons who may be specified in a Levy Order. There is no dispute before us that the impugned Levy Order was made under Section 3(2)(f) of the Essential Commodities Act, 1955. Sub-sections (3), (3A), (3B) and (3C) provide for three different schemes for payment of price to the seller who has sold an essential commodity under a Levy Order made under Section 3(2)(f). Sub-section (3) of Section 3 appears to us to be general in character inasmuch as it provides as follows:
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 therefore 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.
The method which Sub-section (3) of Section 3 provides for determining the price payable to the vendor of an essential commodity under a Levy Order is threefold. In order of preference, it may be an agreed price calculated with reference to the controlled price, if any. It may be a price worked out with reference to the controlled price, if any. It is clear, therefore, that if there is no controlled price in operation at a particular time, under Clause (c) of Sub-section (3) of Section 3 the price payable to the seller of an essential commodity under a Levy Order is the price which is required to be calculated at the market rate of that essential commodity prevailing in the locality at the date of sale. It may be noted that Sub-section (3) does not have any reference to any particular essential commodity. It applies to all essential commodities. There are as many as ton essential commodities specified in ten Sub-clause (a) of Section 2. In addition, the Parliament has also provided for a residuary clause under which the Central Government has the power by a notified order to declare a commodity to be an essential commodity. Besides these essential commodities, 'food-crops' and 'sugar' also accrue in the definition section.
5. We now turn to Sub-section (3A) of Section 3. It provides for determining the price payable to a seller who has sold under a Levy Order 'foodstuff under the circumstances specified in Sub-section (3A). Sub-section (3A) provides as follows:
If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices, or preventing the hoarding, of any foodstuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in Sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with an order made with reference to Clause (f) of Sub-section (2) shall be regulated in accordance with the provisions of this sub-section.
It is not necessary for the purpose of this case to reproduce Clauses (ii) and (iii) which lay down the method of determining the price of the foodstuff for the purposes of Sub-section (3A) takes out from Sub-section (3) what falls under Sub-section (3A). The question which Mr. I.M. Nanavaty has raised before us is whether paddy is a foodstuff or foodgrain which expression has been used in Sub-section (3B) of Section 3 to which we shall shortly revert. However, to have a second look at Section 2 in order to find out whether the definition section distinguishes between 'foodstuff' and 'foodgrain'. All that has been stated is that the 'essential commodity', inter alia, means foodstuffs, including edible oil seeds and oils. Therefore, since the Parliament itself has assigned a wider connotation to the expression 'foodstuffs' used in Sub-clause (v) of Clause (a) of Section 2, it, in our opinion, includes the foodgrains as well. So far as the foodgrains are concerned, determination of the price payable to a seller under Levy Order has been expressly provided in Sub-section (3B).
6. Sub-section (3A) indeed applies to compulsory sales under a Levy Order made with reference to Clause (f) of Sub-section (2) because Sub-section (3A) uses the expression 'shall be sold in the locality in compliance with an order made with reference to Clause (f) of Sub-section (2)'. However, the applicability of Sub-section (3A) presupposes the issuance of a notification in the Official Gazette by the Central Government stating that notwithstanding anything contained in Sub-section (3), the price at which the foodstuff shall be sold in a particular locality in compliance with the Levy Order shall be regulated in accordance with the provisions of Sub-section (3A). Indisputably, no such notification was issued by the Central Government in 1974 in respect of paddy. Such a notification could be issued for the purpose of 'controlling the rise in prices,' or for the purpose of 'preventing the hoarding'. In order to achieve these two-fold objects of 'controlling the rise in prices' and 'preventing the hoarding', a notification under Sub-section (3A), could be issued by the Central Government fixing the price for the purpose specified in Sub-section (3A). Since in 1974, no notification was issued by the Central Government in respect of paddy under Sub-section (3A) does not govern the present case even if we assume, consistently with what Mr. I.M. Nanavaty has argued, that paddy is a foodstuff.
7. Sub-section (3A) in its unamended form provided as follows:
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 foodgrains, edible oil seeds or edible oils to the Central Government or a State Government or to an officer or agent of such Government and either no notification in respect of such foodgrains, edible oil seeds or edible oils has been issued under Sub-section (3A) or any such notification having been issued has ceased to remain in force by efflux of time, then, notwithstanding anything contained in Sub-section (3), there shall be paid to that person such price for the foodgrains, edible oil seeds or edible oils as may be specified in that order having regard to
(i) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils; and
(ii) the price for such grade or variety of foodgrains, edible oil-seeds or edible oils prevailing or likely to prevail during the post-harvest period in the area to which that order applies.
Explanation-For the purposes of this sub-section, 'post-harvest period' in relation to any area means a period of four months beginning from the last day of the fortnight during which harvesting operations normally commence.' Sub-section (3B) was found in the form quoted above in 1974. It was amended with retrospective effect by Central Act 92 of 1976. We shall revert to the amended section later. Sub-section (3B) in terms applied to a case in which no notification in respect of 'such foodgrains,' edible oilseeds or edible oils had been issued under Sub-section (3A). It further stated that if any such notification was issued, it must have ceased to have remained in force by efflux of time. In other words, provisions of Sub-section (3B) did not come into force where a notification, if any, issued under Sub-section (3A) was in force. The second distinction which we find between Sub-section (3A) and Sub-section (3B) is that Sub-section (3B) applied to cases where a Levy Order had been made under Clause (f) of Sub-section (2) of Section 3 to sell any grade or variety of foodgrains (as distinguished from 'foodstuff used in Sub-section (3A), edible oilseeds or edible oils to the Central Government or a State Government or to an officer or agent of such Government and not 'to such other person or class of persons' as contemplated by Section 32(2)(f). It appears, therefore, to us that the amplitude and connotation of Sub-section (3B) (before it was amended in 1976) was narrow and limited inasmuch as it applied to a Levy Order made in respect of foodgrains only and secondly, it applied to a Levy Order made under Section 3(2)(f) requiring a grower or a dealer of foodgrains to sell it only to the Central Government, the State Government or to an officer or agent of such Government. While analysing the provisions Sub-section (3B), we are not referring to edible oilseeds and edible oils because we are not concerned with those expressions in this case.
8. Sub-Section 3(C) lays down the machinery for determining the price of sugar which a manufacturer or a producer is required to sell to the Central Government, a State Government, to an officer or agent of such Government or to any other person or class of persons under a Levy Order made under Section 3(2)(f) of the said Act. We are not analysing the provisions of Sub-section (3C) because we are not concerned with it in this case.
9. The forest argument which Mr. I.M. Nanavaty has raised on behalf of the petitioners is that paddy is a 'foodstuff within the manning of Sub-section (3A) of Section 3 of the said Act and that, therefore, the price which the petitioners and persons affected by the impugned Levy Order are entitled to is the price determined under the provisions of Sub-section (3A). He has very seriously tried to contend before us that paddy is a foodstuff as distinguished from foodgrains. In our foodgrains. In our opinion, provisions of Sub-section (3A) do not have any application to the present case because no notification by the Central Government was issued at the relevant time directing that notwithstanding anything contained in Sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with the Levy Order shall be regulated in accordance with the provisions of Sub-section (3A). In absence of any notification, it is difficult for us to bring into play the provisions of Sub-section (3A). We are of the view that it is not necessary for us, strictly speaking, to find out the subtle distinction between 'foodstuff' and 'foodgrains' and to determine whether paddy is a 'foodgrain' or 'foodstuff'. However, assuming that we are in error in taking the view on account of the reason aforestated that the provisions of Sub-section (3A) do not apply, we proceed to examine whether paddy is a foodstuff or foodgrains. So far as paddy is concerned, there are three material stages which are necessary to be borne in mind. When it is grown in a field it is paddy. When it is milled or husked, it becomes rice. It may be later grounded in the form of rice flour. Bearing these three broad stages in the transformation of paddy in mind, shall we say that paddy is foodgrains as distinguished from a foodstuff? We have already observed that the expression 'foodstuff is generic in character and includes 'foodgrains', which expression has not been defined in the said Act. Now the distinction which the Parliament has made between 'foodstuff' and 'foodgrains' is found only in Sub-section (3A) and (3B) of Section 3. Therefore, even if paddy is a 'foodstuff' in generic sense and if it answers the description of foodgrains in specific terms, Sub-section (3B) of Section 3 will come into play in the instant case and not Sub-section (3A).
10. In Webster's New Twentieth Century Dictionary, Second Edition, 'paddy' has been defined in the following terms:
1. Rice in the husk, growing or gathered.
2. Rice in general.
Mr. Nanavaty has invited our attention to the decision of Orissa High Court in Bijoy Kumar Routrai and Ors. v. State of Orissa AIR 1976 Orissa 138. In that case, Orissa Paddy Procurement (Levy) Order, 1974 made by the Government of Orissa was challenged. One of the contentions which was raised in that case was that paddy was not foodstuff and that, therefore, it did not fall within the ambit of the said Act. It was further contended that no order with reference to paddy could, therefore, have been made. It may be noted that the question of distinguishing between foodstuffs and foodgrains did not arise in that case before the Orissa High Court. Answering the contention, the Orissa High Court has observed that a liberal meaning should be given to the expression 'foodstuff. The High Court repelled the contention that rice as contrasted from paddy would alone be the foodstuff and that paddy is not a foodstuff because it cannot be directly eaten unless it has been converted into rice. The Orissa High Court, therefore, did not find any force in the contention which was raised before them. It negatived the ground of attack. In that context, it referred to the decision of the Supreme Court in State of Bombay v. Virkumar Gulabchand Shah AIR 1952 S.C. 335, in which the question which arose was whether turmeric was a foodstuff. In Virkumar's case (supra) the question of finding out whether turmeric was a foodstuff arose in the context of the provisions of Essential Supplies (Temporary Powers) Act, 1946. Turmeric was found to be included in the wider definition of 'food' and 'foodstuffs' given in A Dictionary of International Sections as well as in several English decisions. A reference to these two cases does not elucidate the proposition in the context in which it has arisen before us. Paddy, in our opinion, is rice in husk and therefore, as distinguished from foodstuff, it is foodgrain. It is immaterial whether the grain is in husk or whether it has been unhusked for the purposes of finding out whether Sub-section (3A) applies or whether Sub-section (3B) applies. It is immaterial whether the grain is open and naked or is covered by husk. Therefore, in our opinion, provisions of Sub-section (3B) will ordinarily govern the determination of the price under the impugned levy order.
11. We now turn to the impugned Levy Order itself and the grounds of challenge raised against it. The first ground of challenge is that Levy Order is inconsistent with Section 3(2)(f) and that, therefore, it is ultra vires the said section. The argument which has been raised is that whereas Section 3(2)(f) provides for 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, the Levy Order requires a person to sell it not in terms of the stock held by him but in terms of the area which he has subjected to cultivation of paddy. There is no doubt about the fact that, under Section 3(2)(f), what is necessary to provide for in a Levy Order is what quantity of paddy held in stock by a person shall be sold by him, inter alia, to the Government. Schedule I to the impugned Levy Order has indeed laid down the scales of paddy to be sold. It specifies the area of land in hectares used in cultivation of paddy and states how much a person cultivating a particular area of land for growing paddy shall sell to the Government. Is this standard or yardstick laid down in the impugned Levy Order inconsistent with the provisions of Section 3(2)(f)? In Bijoy Kumar's case (supra), similar question arose before the Orissa High Court. In that case also, the Orissa Paddy Procurement (Levy) Order, 1974, required a person to sell paddy to the Government on the basis of 'land holding' and not so much in terms of the stock of paddy held by him. It was contended before the Orissa High Court that while Clause (f) of Sub-section (2) of Section 3 required a person to sell the whole or a specified part of the stock of paddy held by him, the Levy Order impugned in that case made no reference to the stock in hands of a land-holder but was based upon possession of land subjected to cultivation of paddy. In the opinion of the Orissa High Court, while, under the said Act, holding of stock was the basis of liability under the Levy Order made by the Orissa Government, liability accrued to a landholder producing or causing to be produced paddy in terms of the land used for cultivation of paddy. Therefore, the Levy Order impugned in that case was found in excess of and inconsistent with the provisions of the said Act. 'Holding in stock', according to the Orissa High Court, has reference to physical existence of stock in the hands of a person subjected to a Levy Order. Secondly, merely because a person has taken steps to produce paddy he cannot be said to be holding paddy in stock. Only when the paddy crop as grown, a fair estimate of the yield can be made. Appraisement at an earlier point of time is no sure foundation for the estimate of the yield. The contention raised on behalf of the Government that standing paddy crop can be taken as stock in the hands of a land-holder was found by the Orissa High Court to be fallacious.
12. Let us now examine from this point of view the scheme of the impugned Levy Order. Clause 2(a) defines 'agriculturist'. Clause 2(c) defines 'irrigated land' in the following terms:
'irrigated land' means land irrigated by any source including wells, tanks, tubwells, lift irrigation system, canals or bandharas constructed or maintained by the State Government or otherwise and includes alluvial land, land situated in the bed of a river or seasonally flooded by the water of a river and land on which fruit trees are grown.
Clause 2(d) of the impugned Levy Order defines 'land' in the following terms: ' 'land' means.
(i) irrigated land,
(ii) rice land,
(iii) non-irrigated land, but does not include khar land within the meaning of the Gujarat Khar Lands Act, 1963.
'Non-irrigated land' has been defined by Clause 2(g). 'Purchase price' has been defined by Clause 2(n) in the following terms:
'purchase price' in relation to any variety of paddy means the price payable for paddy sold and delivered at the purchase centre under this Order whether such price is fixed for a variety of fair average quality of paddy specified in column 2 of Schedule II or fixed at a reduced rate in respect of paddy which is not of fair average quality in accordance with Schedule III.
EXPLANATION-Paddy shall be deemed to be of fair average quality if it is in sound merchantable condition, sweet, dry, clean, wholesome of good food value, uniform in colour and size of grain and free from moulds, weevils, smell, discoloration, admixture of deleterious substances or colouring agents and all impurities except to the extent indicated in Schedule III.
Clause 3 of the impugned Levy Order is very important for the purpose of the present case. Sub-clause (1) thereof provides as follows:
Every agriculturist shall, in the case of land used by him for the cultivation of paddy in kharif season, 1974, sell to the Purchase Officer at the purchase price such quantity of paddy out of the stock of paddy grown by him in his land, as may be determined by the Mamlatdar in accordance with the scale specified in Schedule-I.
In our opinion, the expression 'holding in stock' has nothing to do with what a person holds physically in stock at any particular point of time. If the expression 'holding in stock' used in Section 3(2)(f) means only the actual physical quantity of paddy held by a person at any particular point of time, no person will hardly have any stock of paddy for compulsory sale to the Government under a Levy Order because, after having grown and harvested paddy, he would do away with the stock and deprive the community, particularly the vulnerable section of the society, of it. In order, therefore, that unscrupulous behaviour on the part of a grower in the matter of holding the paddy in stock is done away with and in order that real stocks of paddy grown and harvested by the persons were available to the Government for compulsory purchase or a part of it under the impugned Levy Order, the Government of Gujarat by making the impugned Levy Order had provided the yardstick in Sub-clause (1) of Clause 3 by which the stock of paddy a person had in slock could be determined. The yardstick or the measure which the Government provided for determining the quantity of paddy held by a person in stock, firstly, took into consideration the actual area of land in which an agriculturist had grown paddy. When we read Clause 3 of the impugned Levy Order with Schedule I to it, we find that the Government by making the impugned Levy Order laid down what a particular area of land used by an agriculturist for growing paddy would yield and how much he could be required to sell compulsorily to the Government under the impugned Levy Order. As for example, if a person had grown paddy in an area admeasuring 00.40 hectare or less, he was placed under no obligation to compulsorily sell any quantity of paddy harvested by him from his land, admeasuring between 00.40 hectare and 00.45 hectare, he was required to compulsorily sell to the Government only 50 kgs of paddy produced by him from that land. Similarly, Schedule I to the impugned Levy Order co-related different quantities of paddy which agriculturists were required to sell to the Government under the impugned Levy Order to different areas of agricultural land used by them for growing paddy.
13. The scheme of the impugned Levy Order did not end there. Schedule I to the impugned Levy Order also took into account the nature and character of land in which an agriculturist for cultivation of paddy was irrigated only by the Government sources, the whole of the area of such land was required to be taken into account. However, if an agriculturist cultivated the paddy in his land which was irrigated by private sources, three-fourth of the area of such land was to be taken into account. Thirdly, if an agriculturist cultivated paddy in the land which was irrigated both by private sources as well as Government sources, the two areas were required firstly to be separately determined under the provisions referred to above and thereafter to be totalled up. It also provided that if an agriculturist had cultivated paddy in the land which was rice land or Kyari, the two-thirds of the area of such land should be taken into account. Next it provided that if an agriculturist cultivated paddy in the land which was non-irrigated, half of the area of the land was required to be taken into account. There is the further provision in Schedule I to the impugned Levy Order which provided for totalling up different areas of land of an agriculturist differently irrigated in order to determine his liability to sell paddy to the Government. In order, therefore, to determine what stock of paddy an agriculturist would be holding, by the impugned Levy Order the State Government provided firstly that the actual land used by him for the cultivation of paddy shall be taken into consideration and, secondly, it also provided for bridging the margins between different kinds of lands-land irrigated by Government sources, lands irrigated by private sources, lands irrigated partly by private sources and partly by Government sources and non-irrigated lands. Having provided these yardsticks, the Government indeed laid down how much an agriculturist holding a particular kind of land and cultivating a particular area thereof would produce. Bearing this in mind, the State Government provided what would be the maximum quantity which he would be required compulsorily to sell to the Government under the impugned Levy Order.
14. In our opinion, therefore, the yardstick laid down by the Government under the impugned Levy Order was not inconsistent with or foreign to the concept of 'holding in stock' used in Section 3(2)(F) but it was merely a method or machinery employed for the purpose of finding out how much stock of paddy a person would have in his possession if he cultivated a particular area of land answering a particular description and how much he would be required to sell compulsorily to the Government. We are, therefore, unable to a tree with the view expressed by the Orissa High Court that the concept of area introduced in a Levy Order is inconsistent with the concept of paddy held in stock by an agriculturist within the meaning of Section 3(2)(f) of the said Act. If such a detailed yardstick was not provided by the impugned Levy Order in order to determine what stock of paddy an agriculturist would have, the Levy Order would be self-defeating because no agriculturist would hold in stock paddy for sale at a lower price even though such a requirement was in national interest. He would rather whisk away a large part of the paddy produce by him and show a small part to the Government in order to escape the rigour of the impugned Levy Order. What, therefore, the impugned Levy Order did was to provide machinery to ensure the correct determination of the stock of paddy held by an agriculturist and to lay down his maximum liability in terms of a particular quantity which he would be required to sell to the Government under the impugned Levy Order.
15. The scheme of the impugned Levy Order in this behalf does not end there. Clause 5 of the impugned Levy Order contemplated errors of commission and omission and provided procedure for their rectification. Sub-clause (1) of Clause 5 provided as follows:
Any agriculturist who considers that the quantity of paddy to be sold by him in pursuance of the procurement notice under Sub-clause (3) of Clause 3 is excessive:
(a) on account of any mistake in the area of land and classification thereof into irrigated and non-irrigated land in which paddy is cultivated by him, or
(b) on account of the cultivation of paddy, having been so adversely affected on account of drought or insufficient supply of water or of any pest or disease, injuries to crop or of any other sufficient cause, as to impose undue hardship on him, may within seven days from the date of receipt of such procurement notice, submit an application to the Mamlatdar stating the area and the class of land in which paddy is cultivated by him, along with a declaration that the information furnished by him is true.
Sub-clause (1) of Clause 5 therefore, made it abundantly clear that where an agriculturist felt aggrieved by the determination of the quantum of his liability to sell to the Government a part of his paddy under the impugned Levy Order, it was open to him to convince the Mamlatdar that the area in which he cultivated paddy yielded less on account of reasons stated in Sub-clause (1) of Clause 5 and that, therefore, his liability to sell paddy under the impugned Levy Order was less than what Schedule I to the impugned Levy Order provided. Sub-clause (1) of Clause 5 was clearly elastic. It did not merely provide for specified causes which could be shown but it also provided that an agriculturist could show 'any other sufficient cause'. The expression 'any other sufficient causes' introduced an element of elasticity which took away from the impugned Levy Order the vice of subjecting an agriculturist to an unnecessary and undue rigour of the impugned Levy Order.
16. Mr. I.M. Nanavaty has argued that what was not taken into account by Clause 5 was that all irrigated lands do not produce equally or nearly equally. In other words, the degree of fertility of a soil in which paddy is cultivated may differ from the degree of fertility of another soil where paddy is grown. If the varying degrees of fertility of soil are to be taken into account for the purpose of making a Levy Order and if this concept is to be stretched to its logical end, as Mr. I.M. Nanavaty has tried to do, a Levy Order probably will have to provide for every hectare of land held by an agriculturist in the State of Gujarat and used by him for the purpose of growing paddy. It cannot be done. It is simply an impossible task. To make such an Order is to defeat the purpose of a social welfare legislation. What the Government may, therefore, take into account are the broad factors relating to irrigation or otherwise of the land and the quantum of land actually used by an agriculturist for growing paddy. A Levy Order of the kind with which we are concerned cannot be struck down on the ground that in a conceivable case on account of law fertility of soil, an agriculturist would grow less and that, therefore, unduly heavy liability would be foisted upon him of selling the paddy under the impugned Levy Order. The expression 'any other sufficient cause' used in Clause 5(1) of the impugned Levy Order is so elastic that if an individual farmer had any grievance to make, it was open to him to convince the Mamlatdar of his case. We are, therefore, unable to uphold the argument raised by Mr. I.M. Nanavaty that unequals have been treated as equals in this matter or that the yardstick provided by the impugned Levy Order was inconsistent with and foreign to the yardstick provided by Section 3(2)(f) and that ground, the impugned Levy Order should be struck down. The first argument raised by Mr. I.M. Nanavaty in support of his first three contentions fails and is rejected.
17. The second argument which he has raised relates to the purchase price of paddy shown in Schedule II to the impugned Levy Order. Schedule II specified as many as 92 varieties of paddy grown in the State of Gujarat. Against each variety of paddy, purchase price per quantal of fair average quality of paddy has been shown. He has argued that purchase price of fair average quality of paddy shown in Schedule II had no relation to the average market rate prevalent in the locality during the three months preceding the impugned Levy Order. This argument has been raised on the basis of Section 3(3A)(iii)(c) of the said Act. Clause (iii) of Sub-section (3A) laid down three methods for determining the price payable to an agriculturist who sold paddy under the impugned Levy Order. The first method provided for payment of price which could be agreed upon between the parties consistently with the controlled price of the foodstuff it any. This was provided in Sub-clause (a) of Clause (iii) of Sub-section (3A) of Section 3. It has no application to the instant case because no controlled price of paddy was notified by the Central Government at the relevant time. Clause (b) provided for calculating the price in terms of controlled price if no such agreement as contemplated by Sub-clause (a) could be reached. This clause also had no application because there was no controlled price in force at the relevant time. Therefore, what Mr. I.M. Nanavaty has tried to do is to invoke Sub-clause (c) of Clause (iii) of Sub-section (3A) of Section 3 which provided for payment of price calculated with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification. It is not necessary to enter into any details to show whether provisions of Sub-clause (c) of Clause (iii) of Sub-section (3A) were in form and in substance duly implemented while showing the price of 92 varieties of paddy in Schedule II to the impugned Levy Order because the provisions of Sub-section (3A) did not apply to the instant case as shown by us earlier.
18. The next argument which has been raised by Mr. I.M. Nanavaty, in the alternative, is that the prices shown against 92 varieties of paddy in Schedule II to the impugned Levy Order did not comply with the provisions of Section 3(3B) of the said Act. He has firstly analysed the provisions of Sub-section (3B) as it was before it was amended. Under Sub-section (3B) the State Government was required to take into account while fixing the price of paddy to be purchased in levy the controlled price, if any, fixed under Section 3 or by or under any other law for the time bring in force for different grades or varieties of foodgrains. Since no controlled price was in force at the material time, this provision could not apply to the impugned Levy Order. It was provided, in the alternative, that the State Government would take into account the price of such grade of variety of foodgrains prevailing or likely to prevail during the post-harvest period in the area to which the impugned Levy Order applied. Indeed, the reference was to the market price prevailing during the post-harvest period. The Explanation to Sub-section (3B) stated that 'post-harvest period' meant a period of four months beginning from the last day of the fortnight during which harvesting operations normally commenced. By Central Act 92 of 1976, Sub-section (3B) was materially amended. The new sub-section provided as follows:
(3B). Where any person is required by an order made with reference to Clause (f) of Sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of foodgrains, edible oilseeds or edible oils in relation to which no notification has been issued under Sub-section (3A), or such notification having been issued, has ceased to be in force, there shall be paid to the person concerned, notwithstanding anything to the contrary contained in Sub-section (3), an amount equal to the procurement price of such foodgrains, edible oilseeds or edible oils, as the case may be, specified by the State Government, with the previous approval of the Central Government having regard to.
(a) the controlled price, if any, fixed under this Section 9 or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils;
(b) the general crop prospects;
(c) the need for making such grade or variety of foodgrains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and
(d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of foodgrains, edible oilseeds or edible oil.
Section 9 of the Central Act 92 of 1976 gave retrospective effect to this provision. It provided as follows:
Notwithstanding any judgment, decree or order of any Court,
(a) every order made, or purporting to have been made, before the commencement of this Act, by the Central Government or any State Government under Clause (f) of Sub-section (2) Section 3 of the principal Act in relation to foodgrains, edible oilseeds or edible oils and every act done before such commencement under or in relation to such order, shall be as valid and effective as if the said Clause (f) as substituted by this Act had been in force at all material times and the said order had been made thereunder;
(b) every payment, or offer of payment, of price of such foodgrains, edible oilseeds or edible oils made before the commencement of this Act, shall be deemed to have been made in accordance with law, if.
(i) the price so paid, or offered to be paid, had been fixed having regard to the factors specified in Sub-section (3B) of Section 3 of the principal Act as substituted by this Act; and
(ii) in the case of payment, or offer of payment, by a State Government, such payment or offer of payment had been made after consultation with the Central Government:
Provided that notwithstanding the retrospective operation of this section, no contravention of, or failure to comply with any provisions of the Essential Commodities Act, 1955 (10 of 1955), as amended by this Act, shall render any person guilty of any offence punishable under the Essential Commodities Act, 1955, if such contravention or failure had occurred before the commencement of this Act.
The expression 'every act done before such commencement under or in relation to such order, shall be as valid and effective as if the said Clause (f) as substituted by this Act had been in force at all material times and the said order had been made thereunder' clearly suggests that Section 3(2)(f) was amended with retrospective effect. The provisions of Sub-clause (i) and Clause (b) of Section 9 of the amending Act clearing suggest that if the price paid or offered to be paid had been fixed having regard to the factors specified in the amended Sub-section (3B), it would be valid. However, if the price paid or offered to be paid had not been in accordance with unamended provision of Sub-section (3B) of Section 3, it would be valid if it was found to be consistent with the provisions of amended Sub-section (3B) of Section 3. It is clear, therefore, that we have to judge whether the price structure in Schedule II to the impugned Levy Order complied with the provisions of amended Sub-section (3B) of Section 3.
19. Mr. Nanavaty has argued that the prices shown in Schedule 11 for different varieties of paddy in the impugned Levy Order were arbitrary and illusory and did not bear the reflection of factors which were required to be taken into account. Out of four factors specified in amended Sub-section (3B), the question of taking into consideration the controlled price did not arise at that time because there was no controlled price in force then. Therefore, the State Government was required to take into account (i) the general crop prospects, (ii) the need for making available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers, such grades or varieties of paddy which were specified in the impugned Levy Order and (iii) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of paddy.
20. Therefore, two questions arise for our consideration. Did the State Government while making the impugned Levy Order take factors into account which were specified by the Amending Act enacted two years hence? Or, did the Parliament amend Section 3(3B) so as to validate the factors which had earlier been taken by the State Government into account? Let us turn to the affidavits on record to answer these questions.
21. In his affidavit filed Mr. K.K. Joshipura, Under Secretary to the Government of Gujarat, Food and Civil Supplies Department, the following material averment has been made on behalf of Government of Gujarat after having made copious references to the Report of the Agricultural Prices Commission (hereinafter referred to as 'the Commission')
The procurement prices paid have been fixed for the reasons given by the Agricultural Prices Commission in their report which was duly considered by the Chief Ministers' conference and by the Government of India.
It is necessary to remember that chronologically this was the earliest affidavit. There is no other averment on the subject except copious references to the report of the Commission. Now, under amended Sub-section (3B), the State Government was required to take into account four factors specified by Parliament. Since there was no controlled price in force at the material time, the first factor, being non-existent, could not be taken into account. So far as the need to make paddy available at reasonable prices to the vulnerable sections of the consumers was concerned, we accept the averment made in that behalf on behalf of the Government of Gujarat because such a need was inherently implied in the impugned Levy Order. If there was no such need, the Government of Gujarat would not have made the impugned Levy Order. It is difficult for us to imagine that even though paddy was available at reasonable prices to the vulnerable sections of consumers, the State Government made the impugned Levy Order. Only when supply of paddy is less than its demand and when it is beyond the reach of vulnerable sections of consumers on account of its high or prohibitive prices that a responsible Government, answerable to the people, resorts to such a measure. It is the responsible Government, elected by the people and answerable to them, that responds to the crying need of vulnerable sections of consumers-sometimes even at the cost of growers-in order to maintain the social equilibrium and to prevent restiveness overtaking such sections. No Government, responsible to the people, will allow the occurrence or development of avoidable disorder in society.
22. Turning to the next factor, we find the State Government in soup. What are 'the general crop prospects?' The impugned Levy Order was made by the State Government. It was applicable only to the State of Gujarat. Therefore, the first proposition which was necessarily implied in such an Order was that 'the general crop prospects' in the State of Gujarat had to be taken into account. Consideration of general crop prospects' throughout the country was, in our opinion, irrelevant. Next, it was necessary to analyse factors which enter into the consideration of 'the general crop prospects.' 'The general crop prospects' in relation to paddy refer only to paddy and nothing else. That is the second proposition which clearly emerged out of the impugned Levy Order made by the State Government. Further, 'the general crop prospects' in relation to paddy necessarily required consideration of the following factors.
(1) The area of land put to cultivation of paddy throughout the State during Kharif season in 1974 in respect of which the impugned Levy Order was made The total area under paddy cultivation cannot be assumed to be the same year after year or season after season unless there is statutory requirement or other compulsion to do so. No such statutory requirement of compulsion has been brought to our notice. Therefore, more likely than not, it varies from year to year or season to season. In that view of the matter, since the impugned Levy Order was made for the Kharif season of 1974, total area of land under paddy cultivation during that Kharif season was necessary to be taken into account.
(2) Availability of water supply was the next factor to be considered particularly in rain-fed areas. It is common knowledge that paddy crop requires abundant water supply. Availability of water supply from Government sources and private sources will depend upon the water collected in storage tanks, available in wells or in rivers which in their turn depend upon the rainfall. In rain-fed areas, it depends upon the rainfall directly. Behaviour of weather or adequacy of rain-fall cannot be ensured by any human device.
(3) After having taken into account these factors the total production of paddy in the State has got to be estimated in terms of its supply to the consumers.
(4) Demand for paddy in the State then must be taken into account and purchase price of paddy must be fixed bearing in mind the supply and demand position, the cost of labour, the cost of inputs and the economic capacity of the vulnerable sections of consumers to purchase paddy for their consumption.
We find no averments whatsoever to show what factors were taken into account while considering 'the general crop prospects' in respect of paddy while fixing the purchase price of different varieties of paddy during the Kharif season of 1974.
23. In the affidavit-in-reply filed by Mr. S.K. Kayal, Under-Secretary to the Government of India, Ministry of Agriculture and Irrigation, Department of Food, the following averments have been made:
With these objectives in view, the Agricultural Prices Commission recommends procurement price of the concerned commodity having regard to the general crop prospects and, accordingly, the Agricultural Prices Commission had made a report on the price policy for Kharif cereals for the year 1974-75 season in September 1974....
The next averment is as follows:
Having regard to the recommendations made by the Commission and also the general crop prospects and the need for making the essential commodity available at reasonable prices to the consumers and particularly the vulnerable sections of the consumers, the Central Government has given the previous approval to the procurement price of the paddy specified by the State Government in the Gujarat Paddy (Procurement) Order, 1974. Since this was the basis of price fixation and since those were the naturally relevant factors for fixation of procurement prices of essential commodity, the same have been incorporated by the Amendment Act No. 92 of 1976 with retrospective effect and the amendment also provides for validation of the procurement and levy orders by Section 9 of the Amendment Act.
These averments do not lead us anywhere. They do not show that the State Government had taken into account the aforesaid factors while considering 'the general crop prospects' in respect of paddy grown in the State during the Kharif season of 1974. The State Government alone could have deposed to them. They have not done so. Central Government does not and cannot have better knowledge than the State Government has of what the latter took into account while fixing the purchase price under the impugned Levy Order. In that very affidavit, the next averment which has been made is as follows:
However, I submit that the question of cost of production of paddy was also taken into account as a relevant factor by the Agricultural Prices Commission, the Central Government and the State Government while dealing with the question of fixing the procurement price.
We shall show later that the Commission had not taken into account 'the general crop prospects' in respect of paddy cultivation in the State of Gujarat. Next, they had taken into consideration stale data relating to the State of Andhra Pradesh and the State of Orissa. Consideration of stale data available from those two States could not furnish any scientific basis for fixing current price of paddy in Gujarat State. It is on account of this very reason that both 'the general crop prospects' in respect of paddy grown in the State of Gujarat as well as the recommendations made by the Commission, if any, had got to be taken into account. The first fact or did not merge into the latter. It was rightly so because the Commission could not have made recommendations for paddy procurement in the country on the basis of the data available from the State of Gujarat, if at all they had it.
24. Such averments have been repeated elsewhere in this affidavit-indeed in different phraseology. Mere repetition does not prove the point. Proof of such a fact lies in stating relevant details. They have not been stated. It has also been averred that the petitioners have not shown how the recommendations of the Commission are not rational. We shall be shortly showing how they are not rational and relevant for fixing the purchase price of paddy in the State of Gujarat.
25. Affidavit filed by Mr. V.S. Joshi, Under Secretary to the Government of Gujarat, Food and Civil Supplies Department, exposes vital draw-backs which entered into the fixation of purchase price of paddy under the impugned Levy Order.
26. The first averment in that behalf is as follows:
I say that the Agricultural Prices Commission, while recommending procurement price of the commodities keep this objective in view having regard to the general crop prospects.
This averment clearly shows that the State Government leaned heavily upon the crutches of the Commission and did not utilise its own data to arrive at its own conclusions.
27. The next averment is as follows:
I say that the Central Government has given its previous approval to the procurement price of paddy specified by the State Government in Gujarat Paddy (Procurement) Order, 1974 having regard to the recommendation made by the Commission and also the general crop prospects and need for making the essential commodity available at reasonable price to the consumers and in particular to the vulnerable sections of the consumers. I say that these factors were being considered always by the State Government and the central Government and same have now been incorporated by the Amendment Act 92 of 1976 because this was the basis of price fixation of procurement price of essential commodities.
28. Approval or previous approval by the Central Government cannot necessarily reader valid a price if it has not been validly fixed otherwise. Next, mere repetition of the statutory factors with a statement that they were taken into account docs not discharge the State Government from the obligation to demonstrate to the full satisfaction of the Court how they were taken into account and how conclusions recorded in that behalf were the logical consequences or scientific results flowing from them.
29. Elsewhere in this affidavit (paragraphs 8 and 9 in particular) these averments have been repeated in different forms. They need not, therefore, be reproduced in this judgment. In our opinion, the State Government has signally failed to prove that 'the general crop prospects' in respect of paddy grown during Kharif season of 1974 were taken into account while specifying the prices of different grades or varieties of paddy in the impugned Levy Order, broadly speaking, on account of two reasons. Firstly, the state Government has failed to demonstrate any scientific data in regard to 'the general crop prospects' in respect of paddy. A bare statement that they were taken into account is not at all adequate to satisfy the Court of due and meticulous consideration of the statutory requirement by the State Government. Secondly, full reliance placed on the recommendations of the Commission was thoroughly irrelevant firstly because Commission did not have any data from the State of Gujarat and secondly because its recommendations were based on stale and out-of-date data from other States.
30. I.M. Nanavaty has, in his turn, tried to point out to us Annexure 'B' to the petition which shows what would be the average cost of production of paddy in three types of land-land irrigated by canal water, land irrigated by well water and land irrigated by rain water. According to him, the cost structure which has been worked out by the petitioners in Annexure 'B' to the petition clearly shows that the cost of production of paddy per quaintly would be much higher than the purchase prices shown in the Schedule II to the impugned Levy Order. He has also brought to our notice that these facts stated by the petitioners have not been controverted on behalf of the State Government. It is true that the detailed cost structure shown by the petitioners has not been controverted by the State Government. But, it does not mean that we must accept it as a gospel truth. There are facts and facts which the Court has to take into account. There are certain facts of which the Court may take judicial notice. There are certain other facts which a party may allege and his adversary may controvert. In that case, the Court finds out what is true and to what extent. There is the third set of facts which a party may allege and his adversary may not controvert. In absence of denial of those facts, the Court may accept the facts asserted by a party. There is the fourth set of facts which one party may assert and another may not controvert and yet, the Court may not accept those facts unless they are proved to the satisfaction of the Court. In our opinion, the detailed facts relating to the cost structure specified by the petitioners in Annexure 'B' to the petitioner belong to the last category. Merely because the State Government has not denied those facts, we do not think we would be justified in accepting them firstly because we are not agricultural experts who can check up those facts and secondly because we have no means to check them up. Therefore, merely because they have not been controverted on behalf of the State Government, we are not inclined to place implicit reliance upon them.
31. We now turn to the report of the Commission for the year 1974-75 upon which very heavy reliance has been placed. The following are the material facts which have been stated in the report and which require a judicial check-up. The procurement price for the standard variety of paddy was recommended to be fixed uniformly at Rs. 74/- per quintal. The prices specified by the State Government in Schedule II to the impugned Levy Order clearly show that they revolved round the recommendation of the Commission in regard to the price of the standard variety of paddy. It appears that 'Vari' (variety at serial No. 1) was the only sub-standard variety of paddy for which the State Government fixed purchase price at Rs. 62/- per quintal. It further appears that the varieties of paddy shown at serial Nos. 2 to 44 were standard varieties of paddy and, therefore, their price was fixed uniformly at Rs. 74/- per quintal. Next, the varieties of paddy shown at serial Nos. 45 to 92 were supersaturated varieties and, therefore, their prices were fixed above Rs. 74/- per quintal. In other words, bearing in mind the price of Rs. 74/- per quintal for the standard variety of paddy recommended by the Commission, we find that the State Government had fixed price for 92 varieties of paddy produced in the State varying from Rs. 62/- to Rs. 110/- per quintal. The report of the Commission further shows that there was unprecedented increase in the prices of foodgrains and that the price of rice had almost doubled the price which prevailed during the preceding year. The Commission has attributed this abnormal rise in prices of paddy to drought, expansion in the supply of money and rise in prices of inputs. Now, the report makes it abundantly clear that for fixing the price of standard variety of paddy for 1974-75 the only data which the Commission had was from the State of Andhra Pradesh in respect of 1971-72 and from the State of Orissa in respect of 1972-73. The report further shows that in 1973-74 prices had risen by 11.9% over the prices in 1972-73. So far as the inputs were concerned, their prices during the year 1973-74 had raisen by 18.2% over the prices which prevailed during 1971-72. The report further shows that prices of inputs only for the years 1968-69 and 1969-70 were available to the Commission from other States. It appears that corresponding data in relation to the State of Gujarat in respect of 1974-1975 were not available to the Commission. Therefore, though the report contains recommendations made by an expert body, we are unable to place any reliance upon them firstly because the Commission did not have any data from the State of Gujarat in respect of paddy crop grown during the Kharif season of 1974-75 and secondly because whatever data they had was very stale and did not reflect the current economic factors prevalent in the State of Gujarat.
32. Sub-section (3B), as amended, clearly, shows that the State Government was required to take into consideration the recommendations of the Commission as one of the factors. It was not bound by those recommendations. Indeed, the recommendations made by an expert body like the Commission are entitled to great weight and respect. But they must be based upon relevant data. The recommendations of the Commission could not have been, for the reasons stated above, made the sole basis for fixing purchase prices specified in the impugned Levy Order.
33. In this behalf, Mr. M.B. Shah who appears on behalf of the State Government has argued that the expression 'having regard to', used in Sugar (Control) Order, 1966, has been construed by the Supreme Court in Saraswati Industrial Syndicate Ltd. etc. v. Union of India AIR 1975 S.C. 460. A similar expression has been used in amended Section 3(3B) of the Essential Commodities Act. The Supreme Court has expressed the opinion that the expression 'having regard to' obliges the Government to consider as relevant data material to which it must have regard. It has further been observed by the Supreme Court that the price which is chargeable must be an estimated maximum price. This principle laid down by the Supreme Court makes it abundantly clear that the State Government was under an obligation to take the statutory factors into account. In the instant case the State Government did not take into account 'the general crop prospects' in respect of paddy during Kharif season of 1974 but took into account irrelevant and inapplicable recommendations made by the Commission so far as the State of Gujarat was concerned. The State Government was under an obligation to take into account only the relevant recommendations of the Commission, if there were any. In the instant cas, there were none.
34. Our attention has been invited to a few decisions of the Supreme Court. In Panipat Cooperative Sugar Mills etc. v. Union of India AIR 1973 S.C. 537, Section 3(3C) of the Essential Commodities Act, 1955 came up for consideration in the context of fixation of fair price of sugar. It has been laid down therein that fair price has to be determined in respect of entire production and not in respect of levy sugar only ensuring a reasonable return on the capital employed in the business of manufacturing sugar and that the Government cannot fix any arbitrary price or a price based on extraneous considerations such as one which does not secure a reasonable return on the capital employed in the industry. The principle laid down by the Supreme Court has no application to the instant case because Sub-section (3C) in terms provides in Clause (d) thereof for securing'... a reasonable return on the capital employed in the business of manufacturing sugar.' In amended Sub-section (3B) no such language has been used.
35. The next decision to which our attention has been invited by Mr. I.M. Nanavaty is Anakapalle Coop. Agri. & Industrial Society Ltd. etc. v. Union of India and Ors. AIR 1973 S.C. 734. In that case also, a similar question arose under Section 3(3C) of the Essential Commodities Act, 1955, in the context of fixing the price of the levy sugar. The principle laid down by the Supreme Court in the case of Panipat Cooperative Sugar Mills' case (supra) has been approved in that decision.
36. For the reasons which we have stated, we are unable to establish any link between the price structure shown in Schedule II to the impugned Levy Order and the principal statutory requirement specified in amended Sub-section (3B) of Section 3 of the Essential Commodities Act, 1955. The findings recorded by us answer the first three contentions raised by Mr. Nanavaty. In our opinion, since the State Government has failed to show that under impugned Levy Order the prices of different varieties of paddy were fixed upon the due consideration of statutory requirements specified in amended Sub-section (3B), Schedule II to the impugned Levy Order is liable to be struck down as ultra vires Section 3(3B) (as amended) of the Essential Commodities Act, 1955.
37. The question, therefore, which arises for our consideration is this: What is the price payable to the sellers of paddy?
38. We have ruled out the applicability of Sub-section (3A) to the instant case. Prices purporting to have been fixed under Sub-section (3B) (as amended) have been struck down by us. Obviously, therefore, the State Government is liable to pay to the petitioners and others, who sold paddy under the impugned Levy Order, in terms of Section 3(3). Since admittedly there was no controlled price of paddy at that time, Causes (a) and (b) of Section 3(3) do not apply to this case. In our opinion, therefore, the State Government is liable to pay to the petitioners and other vendors of paddy price computed in terms of Clause (c) of Sub-section (3) of Section 3.
39. We now turn to the fourth contention which Mr. I.M. Nanavaty has raised before us. According to him, Amending Act-Central Act 92 of 1976-is ultra vires Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution. The only contention which Mr. I.M. Nanavaty has raised in the context of Article 14 is that the proviso to Section 9 of the Amending Act introduces hostile discrimination between two sections of paddy grower: those who sell paddy to the Government under the impugned Levy Order and those who fail to do so and thereby render themselves criminally liable. We now reproduce the proviso to Section 9 of the Amending Act. It reads as follows:
Provided that notwithstanding the retrospective operation of this section, no contravention of, or failure to comply with any provisions of the Essential Commodities Act, 1955 (10 of 1955) as amended by this Act, shall redner any person guilty of any offence punishable under the Essential Commodities Act, 1955, if such contravention or failure had occurred before the commencement of this Act.
In our opinion, all that the proviso lays down is that those who failed to comply with the provisions of the Essential Commodities Act, 1955 before it was amended and who yet did not commit any offence shall not be held to be guilty for having committed that offence merely by virtue of the fact that the provisions of amended Sub-section (3B) have been enacted with retrospective operation. Proviso to Section 9 of the Amending Act only carries into effect the principle laid down in Article 20 of the Constitution which provides as follows:
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty grater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Clause (1) of Article 20, therefore, lays down the principle that if the commission of an act was not an offence at the time when it was committed, it shall not be an offence merely because the Essential Commodities Act has been amended with retrospective effect. Since the proviso to Section 9 of the Amending Act has been introduced in order to carry into effect the principle laid down in Article 20 of the Constitution, the question of considering the impact of Article 14 on the proviso does not arise. This is the only challenge which Mr. I.M. Nanavaty has raised under Article 14. It fails and is rejected.
40. Then we proceed to consider his challenge under Article 19(1)(f) and (g) and Article 31. At the time when the Amending Act was passed, Articles 19(i)(f) and 31 were in force. By the 44th Amendment, Article 19(1)(f) and Article 31 have not been repealed with retrospective effect. It is, therefore, necessary for us to consider whether the Central Act No. 92 of 1976 was hit by Articles 19 and 31. Now, the challenge which Mr. I.M. Nanavaty has raised is that the provisions of amended Sub-section (3B) are confiscatory in nature. We do not think so. To fix the purchase price after into account 'the general crop prospects', the demand and supply of paddy and the relevant recommendations made by the Commission is to fox a reasonable price in the interests of the society. Therefore, amended Section (3B) cannot be said to lead to confiscation of the property in paddy. After all, the recommendations of the Commission are the duly considered views of the experts on the subject if otherwise applicable. Per se, they will ensure against violation of Article 19(1)(f) and Article 31 if relevant. The statutory factors, specified in amended Section (3B) strike a delicate balance between the interest of paddy growers and paddy consumers. Whereas they ensure reasonable price to paddy growers in general, they will make adequate stocks of paddy available to consumers at a price which is within their reach. They are very sound principles and factors. We are, therefore, unable to find anything confiscatory in amended Sub-section (3B). It did not offend Article 19(1)(f) and Article 31.
41. Our attention has been invited to the decision of the Supreme Court in Shree Meenakshi Mills Ltd. v. Union of India AIR 1974 S.C. 366. It was a case in which Clauses 22 and 30 of Cotton Textile (Control) Order, 1948 issued under Essential Supplies (Temporary Powers) Act, 1946 were challenged. The principle which the Supreme Court has laid down in that behalf is that the cost of production and the reasonable return to the producer of the commodity should be taken into account. The producer must have an incentive to produce. There is nothing in this decision which helps the petitioners in establishing that the Amending Act is ultra vires Article 19(1)(f) and Article 31 of the Constitution. The principles enunciated therein are fair and just from the point of view of the growers as well as consumers of paddy. Now, the Essential Commodities Act, 1955 has been placed beyond constitutional challenge by inserting it in the Ninth Schedule, Central Act 92 of 1976 does not enjoy that immunity merely on account of the fact that it is only an amending Act. This is a well-settled principle. Therefore, we have examined the constitutional challenge raised by Mr. I.M. Nanavaty to Central Act No. 92 of 1976.
42. Next constitutional challenge to the Amending Act is under Article 19(1)(g). Mr. I.M. Nanavaty has argued that if the State Government pays to an agriculturist less than the cost of production, he will be forced to give up cultivation of paddy and, therefore, will not be able to carry on his occupation. This argument must be tested on the anvil of the principles laid down in amended Section 3(3B). Since we have found them fair and just, their due and faithful implementation can never throw out of occupation the growers of paddy. This constitutional challenge is, therefore, without any substance. The fourth contention raised by Mr. Nanavaty, therefore, fails and is rejected.
43. The last contention raised by Mr. Nanavaty is that the impugned Levy Order is ultra vires Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution. This challenge can also be examined by us on merits. In M/s. Prag Ice and Oil Mills v. Union of India A.I.R. 1978 S.C. 1296, it has been laid down by the Supreme Court that even though an Act gets protection of the Ninth Schedule, an Order made thereunder does not get it. In that case, constitutional challenge was raised against Mustard Oil (Price Control) Order, 1977 made under the Essential Commodities Act, 1955. So far as challenge under Article 14 is concerned, it is difficult to conceive of any rational basis for that challenge Mr. Nanavaty has not raise any argument to justify this challenge. Otherwise also, we find no basis to hold that the impugned Levy Order treated unequally two classes which were otherwise similarly situate. In fact, all the paddy growers were treated equally except those who were cultivating paddy in the land admeasuring 0.40 hectare or less and who were exempted from the operation of the impugned Levy Order. It can never be said that such small cultivators ought to have been subjected to the operation of the impugned Levy Order in order to introduce an element of dull and lifeless equality. Such small cultivators do not produce enough even for their own consumption. How could they be subjected to the impugned Levy Order? To apply the impugned Levy Order to one and all equally is to subject small cultivators to proportionately greater burden than the big cultivators. Therefore, universal application of the impugned Levy Order would have, on the contrary, introduced an element of inequality which has been avoided by exempting very small cultivators from its application. The second conceivable argument which can be advanced is that the graded quantities of 'Levy' shown in third column in Schedule I to the impugned Levy Order introduced an element of inequality. We do not think it to be a sound argument because smaller the area of land under cultivation and, therefore, lesser the consequent production of paddy, greater the need of the cultivator for his own consumption. Bigger the area of land under cultivation and greater the consequent production of paddy, lesser the need of the cultivator for his own consumption. It is, therefore, clear that the graded 'levy' of rice specified in column 3 of Schedule I brought in greater equality of treatment amongst paddy growers and steamrolled inequality which would have been the result otherwise.
44. Different treatments, given to different kinds of paddy land as shown in Schedule I, were also aimed at producing dynamic equality amongst unequal cultivators of paddy land. Therefore, the constitutional challenge raised by Mr. Nanavaty under Article 14 is without any substance and is rejected.
We now turn to the next challenge under Article 19(1)(f), Article 19(1)(g) and Article 31. It has been argued by Mr. I. Nanavaty that prices for different varieties of paddy, fixed in the impugned Levy Order, were below the cost of their production. This argument is sought to be supported by the figures stated by the petitioners in Annexure B to the petition. We have not accepted those figures. Therefore, this argument in support of this constitutional challenge cannot be accepted. We think that random or stray cases of individual hardship cannot be taken into account while judging the constitutional challenge to a social welfare measure. However, it cannot be gainsaid that the State Government ought to take into account State-wide factors while fixing the purchase price of paddy while making a Levy Order such as one impugned in this case and should demonstrate them to the Court indetails particularly when the State Government has a statutory duty to discharge in that behalf. Next, while considering the interests of a consumer-particularly one belonging to a vulnerable section of society-and the interests of a producer-particularly a small producer and striking a delicate balance between them, the State Government could take into account the fact that no producer was under an obligation under the impugned Levy Order to compulsorily sell at a fixed price more then 15% of his production and that he was free to sell 85% of his production in open market at a competitive price or at any price he thought fit and was thus free to make up his loss, if any, which might have been caused to him by the compulsory sale of paddy at a fixed price. These, indeed, are very good factors but they do not help the Stale Government in discharging its statutory obligation to establish a scientific and rational link between the statutory principles governing the fixation of purchase price and the actual price or prices fixed by it. We have already stated in the earlier part of this judgment that the State Government has failed to demonstrate how it had taken into account the relevant factor and has shown that it had taken into account the factually irrelevant and inapplicable factors. It was not open to the State Government to pay any price to the vendors it thought fit at its sweet-will. It must establish a scientific and rational link between the average cost of production of paddy on one hand and the price or prices foxed by it. Unless it is done, challenge under Article 19(1)(f) and Article 31 cannot be averted. In absence of any detailed relevant material on record, we are of the opinion that the prices specified in Schedule II to the impugned Levy Order were purely arbitrary and irrational. We have, therefore, no doubt in our minds that such a price structure offended Article 19(1)(f) and Article 31 besides offending Sub-section (3B) of Section 3 of the Essential Commodities Act, 1955. Therefore, Schedule II to the impugned Levy Order was ultra vires Article 19(1)(f) and Article 31. If a producer or grower is forced to accept such a price, it will have the tendncy to drive him out of occupation. Therefore, the said Schedule II also offended Article 19(1)(g) and was ultra vires it.
45. In the result, in view of our finding that since the prices of different varieties of paddy specified in Schedule II to the impugned Levy Order were ultra vires Section 3(3B) of the Essential Commodities Act, 1955 and Article 19(1)(f), 19(1)(g) and Article 31 of the Constitution, they are liable to be struck down. We, therefore, declare them to be void and ultra vires Section 3(3B) of the Essential Commodities Act, 1955, and Article 19(1)(f), 19(1)(g) and Article 31 of the Constitution. In that view of the matter, we declare that the State Government is bound to pay to its vendors the price of paddy, purchased under the impugned Levy Order, in terms of the provisions of Clause (c) of Sub-section (3) of Section 3 of the Essential Commodities Act, 1955. The petition is, therefore, partly allowed and Rule is made absolute to the aforesaid extent with costs.
46. Mr. I.M. Nanavaty has argued that when this Court made an inferim order in this petition on 8th April 1975, it stated that if the petitioners ultimately succeeded, the State shall make good the difference in the price fixed under the impugned Levy Order and the price which might be upheld by this Court as the price payable to the petitioners. In pursuance of that interim order, we direct the State Government to pay within a period of three months the difference between the price which they have paid to them and the price which is payable under Clause (c) of Sub-section (3) of Section 3 of the Essential Commodities Act, 1955.