K. N. Singh, J. - (1.) THE petitioners are agriculturists who produce wheat in their holdings, they have challenged validity of the U. P. Wheat (Levy Regulation of Trade and Control of Movement) Order, 1975, by means of this petition under Article 226 of the Constitution.
(2.) THE U. P. Wheat (Levy Regulation of Trade and Control of Movement) Order, 1975 (hereinafter referred to as the Order) was issued by the Governor of Uttar Pradesh on 7-4-1975 in exercise of his powers under section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act). Clause 3 of the Order requires a wheat producer to sell wheat to the Collector at the purchase centre fixed by him for the price specified in the Order. Schedule II to the Order lays down scale for the calculation of quantity of levy as wheat. THE quantity of levy varies on the basis of sown area by the agricultural producer and the aggregate area of land held by him. Clause 4 of the Order restricts right of producer to dispose of or part with the possession of any portion of his produce of wheat unless he delivers the levy due to the authority concerned in accordance with the provisions contained in the Order. Clause 2(m) defines the specified price according to which a producer is entitled to the price of Rs. 105.00 per quintal of levy wheat. Clause 7 of the Order empowers Collector to seize such quantity of wheat from the possession of the producer as may be equivalent to the levy due from him. Contravention of the Order is punishable under section 7 of the Act. This petition came up for hearing in May 1975, at that stage learned counsel for the petitioners raised a number of grounds to challenge the validity of the Order, all those grounds were founded on the violation of Articles 14 and 19 of the Constitution. The hearing could not be completed as the summer vacation intervened. In June 1975 the President of India promulgated emergency under Article 359 of the Constitution, consequently Article 19 stood suspended. Further the President by a notification suspended the operation of Article 14 also. On 13-6-1975, Governor of Uttar Pradesh promulgated U. P. Ordinance no. 70 of 1975 amending clause (f) of sub-section (2) of Section 3 of the Act with retrospective effect. The ordinance was later on converted into U. P. Act No. 39 of 1975. In view of these developments the petitioners filed supplementary affidavit, reply to which was filed by the respondents. On resumption of hearing learned counsel for the petitioners made a statement that the petitioners would not press any grounds raised by them on the basis of Articles 14 and 19 of the Constitution. The learned counsel has confined his arguments to two points and no other points raised in the petition. Learned counsel for the petitioners urged that since the State Government did not fix any controlled price of wheat it had no jurisdiction to fix price of levy wheat. In the absence of controlled price of wheat for sale to the consumers, the petitioners are entitled to price of levy wheat at the market rate prevailing in the locality. In order to appreciate the petitioners' contention, it is essential to refer to the relevant provisions of the Act. The impugned Order has been issued by the State Government under section 3 (2) (f) of the Act. Section 3 including the material subclauses of Essential Commodities Act are as under :- (His Lordship then reproduced Sec. 3 (1), (2) (f), (3-A) (i), (3-B) (i), (ii) Explanation and proceeded on to observe :-)
(3.) ADMITTEDLY wheat is essential commodity within the meaning of Sec. 2(a) of the Act. There is no dispute that the State Government under Sec. 3(2) of the Act is empowerd to issue an order requiring any producer holding stock of wheat to sell it to the State Government. Learned counsel for the petitioners, however, urged that since no controlled price of wheat at which it could be sold to the consumers has been fixed, the State Government had no authority in law to specify price of levy wheat. The petitioners are not bound to sell levy wheat to the Government at the rate of Rs. 105 per quintal, instead they are entitled to the price prevailing or likely to prevail in the post harvest period in the locality. The petitioners contention is well supported by the decision of a Division Bench of this Court in M/s Sita Ram Jwala Prasad v. State of Uttar Pradesh, AIR 1975 All. 272. The Bench after considering the various provisions of section 3 and 3-B and various sub clauses of section held that under section 3-B, the State Government was bound to pay to the dealers either the controlled price as contemplated by clause (i) of sub-section 3-B or the price prevailing or likely to prevail in the post-harvest period in the area as contemplated by clause (ii) of section 3-B. The price of levy foodgrain as specified in the order was held to be illegal as that did not constitute controlled price of the foodgrain within the meaning of the Act. After the judgment of the Division Bench, section 3 was amended by the State Legislature by the Essential Commodities (U. P. Amendment) Act, 1975, No. XVIII of 1975. Section 3 (2)(f) and section 3-B were amended with retrospective effect in the following manner :- * * * * After the amendment the position has considerably changed. The newly added caluse (i-a) to section 3-B lays down that in a case where no controlled price of foodgrain is fixed by an order issued under clause (c) of subsection (2) the price of foodgrain required to be sold to Government or its agency under an order issued in exercise of powers under section 3 (2) (f) of the Act, may be fixed by the Order itself. Thus after the amendment even if no controlled price is fixed, it is open to the State Government to fix price of foodgrain required to be sold to the Government. After the amendment the State Government filed a review application before the Division Bench. The Bench rejected the review application on 25-4-1975. But it observed that in view of the retrospective amendment of the relevant provision of section 3, the price of foodgrain required to be sold to the Government would be the same as fixed in the Order. Further the price of foodgrain as fixed in the Order was valid eventhough no controlled price of foodgrain was fixed. In view of this observation made by the Division Bench, it is clear that even in the absence of controlled price for the sale of wheat to the consumers the order may specify the price for which the producer is required to supply the levy wheat to the Government. The impugned order does not stand vitiated on account of the absence of the controlled price of wheat. Further the producer is not entitled to the price prevailing in the locality, instead he is entitled to the price specified in the Order.;