Suleman Issa v.

The Stak of Bombay.

Ghulam Hasan J,

March 12

SUPREME COURT REPORTS [1954}

inappropriate in a case where the accused is prosecuted for an offence punishable with a maximum sentence of 3 months and a fine of Rs. 100.

It was certainly open to the court to order the property to be delivered to the person claiming to be entitled to its possession.

Here the gold was found from the possession of the appellant, and the court was not called upon to consider any rival claims about its possession. Admittedly there was no evidence to prove that it was stolen, or that it was fraudulently obtained and all that was found was that there was reason to believe that it was stolen or fraudulently obtained and that the appellant failed to account for its possession to the satisfaction of the court.

The High Court thought that the gold was smuggled from Africa into India but assuming this to be so its confiscation under section 517 upon the existence of a mere belief required to sustain a conviction under section

61E was palpably harsh and unreasonable.

We hold, therefore, that the order of confiscation of gold cannot be supported.

We according! y set aside the order of confiscation and direct that the gold seized from the appellant's possession shall be restored to him.

Appeal allowed.

Agent for the respondent : R. H. Dhebar.

THE STATE OF RAJASTHAN v.

NATH MAL AND MITHA MAL.

lMam CHAND MAHAJAN. C. J., MUKHERJEA, S. R. DAs,

VIVIAN BosE and GHuLAM HASAN JJ.]

Constitution of India, arts. 19(1)(1) and 31(2)-Raiasthan Foodgrains Control Order, 1949, cl. 25-Whether ultra vires th< Constitution.

Held, that the first portion of cl. 25 of the Rajasthan Foodgrains Control Order, 1949, relating to the freezing of stocks of foodgrains is not void under art. 19(l)(f) of the Constitution because such freezing of stocks of foodgrains is reasonably related

to the object which the Act was intended to achieve, nan1ely _to secure the equitable distribution and availability at fair prices and to regulate transport, distribution, disposal and acquisition of an .essential commodity such as foodgrains.

Held, that the last portion of cl. 25 to the effect that "such stocks shall also be liable to be requisitioned or disposd of under orders of the said authority at the rate fixed for purposes of GoYernment procurement", is void both under art. 19(1)(f) and art. 31(2) of the Constitution:-

(i) because the clause places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondents' right under art. 19(1)(f) of the Constitution ;

(ii) because the clause by vesting the power in the authority to acquire the stocks at any price fails to fix the an1ount of co1npensation or specify the principles on which it is to be determined and leaves it entirely to the discretion of the executive authority to fix any compensation it likes and is thus hit by art. 31(2) of the Constitution.

CIVIL APPELLATE TuRISDICTION : Civil Appeal No. 136 of 1952.

Appeal under articles 132 ( 1) and 133 (I) ( c) of the Constitution of India from the Judgment and Order dated the 19th October, 1951, of the High Court of Judicature for Rajasthan at fodhpur in D. B. Miscellaneous Writ Petition No. 3/1951.

K. S. Haje/a, Advocate-General of Rajasthan, for the appellant.

K. N. Aggart11al an<l P. C. Agarwal for the respondents.

M. C. Setalvad, Attornev-General for India (Porus A. Mehta, with him) for the intervener (the Union of India).

1954.

March 12.

The Judgment of the Court was delivered by

GHuLAM HASAN J.-The question involved in this appeal relates to the constitutional validity of clause 25 of the Rajasthan Foodgrains Control Order, 1949, hereinafter called the Control Order. and arises in the following circumstances:- The respondents, who are grain merchants at Raniwarain Jodhpur Division, Rajasthan State, hdd

The State of Rajas than v.

Nath Mal and

Mitha Mal.

Th< Sta11 of

RajasthtJ.n

Nath Mal and -

Muha Mal.

Ghulam Hasan J.

licences for dealing in foodgrains.

They held considerable stocks of bajra in the ordinary course of business but on October 7, 1950, their stocks were frozen by the Deputy Commissioner, Civil Supplies, Jodhpur, through the Sub-Divisional Officer.

It is not disputed that the market price then prevailing was about Rs. 18 per maund.

The State, however, requisitioned the stocks at the rate of Rs. 9 per maund and sold them at Rs. 13-5-4 per maund.

The respondents claimed that they had purchased the bajra at the prevailing market rate of Rs. 17 to Rs. 18 per maund.

They filed a petition on January 23, 1951, for the issue of a writ under article 226 of the Constitution before the High Court of Rajasthan, contending that clause 25 of the Control Order was void under articles 14, 19(1) (g) and 31(2) of the Constitution.

The High Court held that clause 25 was void inasmuch as it is a restriction upon the fundamental right of the respondents to carry on business under article 19 ( 1) (g) of the Constitution, that the restriction is not reasonable and is not saved by clause (6) of article 19. The High Court further held that clause 25 was also hit by article 31 (2) as fair compensation had not been fixed by the law for the acquisition of the foodgrains.

As the grains had already been disposed of by the Government, the High Court holding that Rs. 17 a maund was fair compensation directed .that the State of Rajasthan shall pay compensation at that rate.

The State has preferred the present appeal on a certificate granted hy the High Court.

The impugned clause 25 is as follows:- "25.

Notwithstanding anything contained in this Order, the Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Suh-Divisional Officer, the Senior Officer of a jurisdictional Thikana, the enforcement officer or such other officer as may be authorised by the Commissioner in this behalf, may freeze any stocks of foodgrai ns held by any person, whether in his own behalf or not, and such person shall not dispose of any foodgrains out of the stock so freezed except with the permission of the said authority.

Such stocks shall

also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement."

It is not disputed that bajra is an essential commodity within the meaning of the Essential Supplies Act (No. XXIV of 1946).

The question that arises for consideration is how far and in what respects clause 25 can be said to be void as violating Part III of the Constitution.

The clause authorises the Comm1ss10ner and yarious other authorities mentioned therein and such other officers as may be authorised by the Commissioner to freeze any stock of foodgrains held by a person.

It is true that the authority of the Commissioner to delegate his powers to any other officer at his discretion is expressed in somewhat wide terms but we need not decide that that per se would be sufficient to invalidate the clause.

Admittedly that power has not been exercised in the present case. Nor do we think that the power to freeze the stocks of foodgrains is arbitrary or based on no reasonable basis.

It is not disputed that the clause does not state in express terms the circumstances in or the grounds on which the stocks may be freezed but it should be read along with section 3 of the Essential Supplies Act which lays down the policy for controlling the production, supply and distribution of essential commodities.

Section 3 in so far as, it is material says:-

"The Central Government, so far as it appears to it to he necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof. . , ............. "

Sub-section (2) lays down:- "Without prejudice to the generality of the powers conferred by sub-section ( l), an order made thereunder may provide ......... .

(a) ............... .

(b) ............... .

(c) ............... .

The State of

Rajt1sthan'

v. }lath Mal and

Mitha Mal.

Ghufom Hasan J.

1954 -.- The State of Rajasthan v.

Nath~Afal ani

Mitha Afal. ~

Ghulam~Hasan ].

( d) for regulating by licences. permits or otherwise the storage, transport, distribution, disposal, acqms1tion, use or consumption of any essential commocfoy; ( e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sa1e; "

We are clear, therefore, that the freezing of stocks of foodgrains is reasonably related to the object which the Act was intended to achieve, namely, to secure rhe equitable distribution and availability at fair prices and to regulate transport, ,:istribution, disposal and acquisition of an essential commodity such as foodgraim.

We do not agree wit]' the High Court 'hat the fiN portion of clause 25 is void under article 19 (1) (g).

The last portion of clause 25 to the effect that "such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at tile rate fixed for purposes . of Government procure1,.., ent'', however stands on a different footing. The clause, es it is worded, leaves it entirely to the Government ro requisition the stocks at any rate fixed by it and to ,\i,. pose of such stocks at any rate in its discretion This obviously vests an unrestrained authority to requtsttion the stocks of foodgrains at an arbitrary price. In contrast with this provision we may refer to clau, es 23 and 24 of the Control Order. They are as follows:-

"2.). The Commissioner or the Director, and the Deputy Commissioner or the Senior Officer of a jurisdictional Thikana with the approval of the Director, may fix the ceiling prices at which foodgrains in any area to which this-0rder applies shall be sold, and may from time to time vary such prices."

"24. The Commissioner, the Director, the Deputy Commissioner, the Nazim, the Assistant Commissioner, the Sub-Divisional Officer, or the Senior Officer of the jurisdictional Thikana as the case may be, may direct any person or persons in possession, whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any

specified place and at such price as may be fixed under clause 23."

It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23, there is no such limitation upon the power of the Government to acquire the stocks.

In other words, it will be open to the Government to requisition the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit.

It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price.

No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rate.

The present is a typical case which illustrates how the business of a grain dealer can be paralvsed, for it is admitted that while the Government procurement rate was Rs. 9 a maund, the market rate was Rs. 17 or Rs. 18 per maund, with the result that the stock holder suffered nearly cent. per cent. loss, while the Government made a profit of Rs. 4-5-4 per maund on the stock requisitioned.

We hold, therefore. that the last portion of clause 25 places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondent's right under article 19(1) (g) of the Constitution and is, therefore, to that extent void. The same result follows if the impugned clause is examined in the light of article 31 (2).

The clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined.

The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes.

The High Court

The State of Rajastlum v.

Nath Mal and Mitha Mal.

Ghu!am Hasan).

The State of Rajasthan v.

Nath Mal and

Mitha Mal.

March 12.

rightly held article 31(2). that the clause offended against

For the foregoing reasons portion of clause 25 is void with costs.

we hold that the last and dismiss the appeal

Appeal dismissed.

Agent for the appellant and for the intervener: R. H. D!tebar.

SRIMA TI ORAMBA SUND ARI DASI

ti.

SRI SRI ISWAR GOPAL JIEU. [MuKHERJEA, VrvIAN BosE and

VENKATARAMA AYYAR JJ.) Bengal Money-Lenders Act, 1940 (Bengal Act X of 1940), s. 36 -Scope of-Court whether competent to make an enquiry that decree-holder on record is benamidar for another person.

Held, that in a proceeding under s. 36 of the Bengal Money-Lenders Act, 1940, it is not competent to the court to go behind the decree and embark on an enquiry as to whether the decree-holders on record were in fact benamidars for another person.

Scope oi s. 36 of the Act discussed.

Renual v. Manmatha (72 I.A. 156) and Bank of Commel'C6 Ltd. v. Amulya Krishna Basu Roy Chowdhury ( [ 1944 ]F.C.R. 126) referred to.

C1v1L

APPELLATE JuR1smcTION : Civil Appeals Nos. 130 and 131 of 1951.

Appeals from the Judgment and Decrees, dated the 12th August, 1948, of the High Court of Judicature at Calcutta in Appeals from Original Decrees Nos. 214 of 1942 and 231 of 1943 arising from the Decrees, dated the 16th June, 1942, of the Court of the Subordinate Judge, Burdwan, in Money Suit No. 261 of 1932/ Miscellaneous Case No. 132 of 1941 and Money Suit No. 262 of 1932/Miscellaneous Case No. 131 of 1941.

N. C. Chatterjee (A. K. Dutt and Sukumar Ghose, with him) for the appellant.

Manmo!tan Mukherjee and P. K. Chatterjee for respondent No. I.