- (1.) M. Katju, J. This writ petition and connected writ petitions have been filed praying for writ of mandamus directing the respondents not to recover rice from the petitioner at the recovery rate of 68% but at the recovery rate of 65%.
(2.) WE have heard lejarned counsel for the petitioners and learned Standing counsel. The petitioner purchased paddy and converted it into rice in its mill. Part of this rice had to be sold to the State Govern ment as levy rice, while the rest was free for sale in the open market. The State Government had fixed the recovery rate of rice at 68% out of paddy purchased by the petitioner, but by means of this petition the petitioner has prayed that the recovery rate should be fixed at 65%. By means of interim order dated 5-12-1988 passed in this writ petition, the respondents were directed not to recover rice from the petitioner at a recovery rate exceeding 65%. In writ Petition No. 3277 of 1982 Mis. Agarwal Industries, Hardoi v. State of U. P. and another decided on 13-12-1983 by a Division Bench of this Court (Lucknow Bench) reported in 1984 E. F. R. 378, it was held that the assumed percentage of recovery of rice is not final but is flexible and subject to proof to the contrary.
(3.) RELEVANT paragraph 10 of the aforesaid judgment is being reproduced below: "10. Sub-clause (8) of Clause 3 of the Levy Order reads as follows - " (8) The percentage of rice recovered from corresponding variety of paddy shall be deemed to be as follows, unless proved to the contrary and the levy due under the clause shall be calculated accordingly: Common variety 65 percent Fine and Super Fine66. 5 percent Scented Variety 66 per cent Provided that the State Government may, in public interest, reduce the percentage of recovery in respect of any area or in relation to any variety or grade of paddy; Provided further that if the actual recovery in a mill is higher than the deemed recovery percentage, levy shall be taken only on the basis of deemed recovery, percentage and not an actual recovery: Provided also that the Controller on being satisfied that the percentage of recovery in any case is less than that specified in this sub-clause, may accept such reduced percentage of levy as he, for reasons to be recorded in writing, thinks fit. " The percentage of recovery prescribed above is not final and inflexible. It is subject to proof to the contrary as is apparent from the use of the words "unless proved to the contrary". But unless the contrary is proved, the levy shall be charged on the basis of the recovery percent age on the basis of an imaginary recovery per centage and this is apparent from the provision contained in this third proviso. Under this proviso it is permissible for the Collector to accept reduced percentage of levy if the per centage of actual recovery is less than the prescribed percentage. The fact that the recovery percentage in a particular case is less in within the special knowledge of the miller and, therefore, in view of the assumption made in the sub- clause the burden of proving that the per centage of recovery is less shall be on the miller. Thus, sub-clause only prescribes a mode of proving a fact. It lays down a rule of evidence. It is competent for the State to enact a law relating to evidence. It is also competent for it to amend, alter or change it. The utmost that may be said with regard to the assumed percentage is that by fixing the assumed percentage the normal rule of evidence has been changed. But there is no bar to it. So far as the right to prescribe assump tions is concerned, in law the same is available - See/4. S. Krishna v. Madras State, AIR 1957 SC 297, C. I. Endean \. State of U. P. , AIR 1960 SC 548 andkallyram v. The State of U. P. , 1975 Cr. L. J. 160. " In view of the judgment of the Division Bench, the petitioner is not en titled for any relief in this petition.;