Decided on April 01,1968

ANNAM Respondents


- (1.) Writ Appeal No. 30 of 1968 is by the State against the judgment 1968 KLT 223 dated February 8, 1968, of Gopalan Nambiyar, J. in O. P. No. 4134 of 1967, wherein the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, and Clause.4 of the Kerala Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, have been held violative of constitutional provisions. The two Orders will be referred to herein below as 'the Levy Order' and 'the Declaration Order', adopting the short names used by the learned Judge.
(2.) The petitioners in the above said O. P. [a mother and son] are admittedly cultivators of paddy in 30.49 acres of land according to the State they cultivate 34.91 acres who challenged the Levy Order which compels them to sell paddy to Government on a graduated scale according to acreage against payment of price not exceeding the maximum price fixed by the Government, and the Declaration Order under which they might be compelled to declare the paddy in their possession or control and to sell it to the Government, as unconstitutional. By consent of parties, this O. P. was heard by the learned Judge, along with 720 others that challenged the above said Orders as also the Kerala Paddy (Maximum Prices) Order, 1965, and the Kerala Rice (Maximum Prices), Order, 1965, hereinafter 'the Maximum Prices Orders' on "the question of the constitutional validity of the Orders" as a "preliminary point" and by a judgment common for all the 721 O. Ps., the learned Judge has held: "The expression 'cultivator' has been defined as 'one who actually cultivates any land with paddy'. On the definition, it seems to signify one who actually puts his hand to the plough, and the plough to the soil. It seems also immaterial that the land he cultivates is one in which he has himself no proprietary or beneficial interest. If this be the meaning to be attributed to the term cultivator' the working of the Levy Order would be reduced to an absurdity. It would mean that even a servant or labourer of an owner of land is to be regarded as a cultivator to be dealt with under the provisions of the Order....(T)he meaning of the term 'cultivator' may range from the one who actually puts the plough to the soil to the one who is stationed faraway from the lands and who directs or supervises the cultivation or causes the same to be done by members of his family, dependants or relations, or with his own or hired labour. To say that 'cultivator' means one who actually cultivates any land is to lay down no definite standard as to the circumstances under which the different categories of persons would be answerable for the levy. As the definition of the term 'cultivator' as given in the Levy Order is artificial and arbitrary, and as the same is inextricably woven throughout the texture of the Levy Order, the entire Order must be held to be affected by the vice of the definition. .... Under the Maximum Prices Order, 1965, it is the case of the State that the maximum prices have been fixed so as to ensure a reasonable margin of profit to the cultivator, and taking to account the burden on the consumer. Granted that this is so, it is a well known fact that the prices of rice and paddy have been spiralling in this State in the past few years. I can find no justification for denying the cultivator for all time the benefit of any increase in the market price of rice and paddy over the level fixed by the Maximum Prices Order, 1965. ... The Maximum Prices Orders themselves contain no indication that the maximum prices fixed by the Schedule therein are capable of periodical revision and adjustment. That the market value has for all time been tied down to the price fixed in the Maximum Prices Orders is a matter that pertains to the principles of compensation and not to its adequacy. It must therefore be held that Clause.7 of the Levy Order in so far as it imposes a ceiling on the price to be paid, fails to specify the principles on which compensation for the paddy taken is to be assessed, and thereby violates Art.31(2) of the Constitution. ...It is a matter of some doubt, and of controversy, as to which of the two sub-sections viz., sub-s.(3) or sub-s.(3B) of S.3 of the Act has application ... Be that as it may, whichever be the sub clause that applies, it is clear that the controlled price is not the sole determinant of the price to be paid to a person required to sell an essential commodity in compliance with an order made with reference to S.3(2)(f) of the Act. It is only one of the factors to be taken into account..... Turning to the provisions of the Levy Order, the controlled price is the sole determinant of the prise to be paid. To that extent the Levy Order seems to have travelled beyond the provisions of the parent Act, viz., the Essential Commodities Act, in respect of the provision as to payment of price for the rice or paddy acquired. .... In the result I hold that the definition of the term 'cultivator' in the Levy Order is vague and does not lay down even the broad principles for a satisfactory administration of the provisions of the Order and is productive of arbitrariness, As the definition is the very crux of the Order and is inextricably woven throughout the texture of the Order the entire Order is liable to be struck down under Art.14 of the Constitution. I am further 6f the view that, in any event,...the proviso to Clause.7 of the Order in so far as it places a ceiling on the market value of the price to be paid to the paddy acquired is violative of the Art.31(2) of the Constitution. ..... It will be noticed that, as in the case of the Levy Order, the Declaration Order also inelasticaliy fixes the price to be paid for rice and paddy as the maximum prices fixed by the Maximum Prices Orders of 1965. The stockholder is denied the benefit of any rise in the market value of these commodities subsequent to 1965. I therefore hold that Clause.4 of the Declaration Order in so far as it directs the stockholder to sell paddy or rice to the Government at the 'controlled price" offends Art.31(2) of the Constitution.... In the result, as far as the Declaration Order is concerned I hold that only Clause.4 thereof to the extent to which it directs sale to the Government at the "controlled price" is unconstitutional and invalid. ..... Nothing was made out to show that the Maximum Prices Order, 1965 are unconstitutional, or invalid. In the light of my above conclusions regarding the constitutional validity of the Orders, these writ petitions will now be posted for further hearing and appropriate orders."
(3.) The State has come up in appeal under S.5(i) of the Kerala High Court Act, 1959-1966, which reads: "5. Appeal from judgment or order of Single Judge.-- An appeal shall lie to a Bench of two Judges from (i) a judgment or order of a Single Judge in the exercise of original jurisdiction; (ii) ........................................................";

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