Ganendra Narayan Ray, J. - (1.) In the instant writ petition the Levy Order dated 19th January, 1978 passed by the Requiring Authority being the Progress Assistant, Khanda Ghosh Block directing the petitioner to deliver 141 quintals 14 kgs. paddy to the Procurement Agent named in the said order is under challenge.
(2.) The petitioner's contention is that he owns 20.42 acres of agricultural lands some of which are in the irrigated area and the rest arc in the non-irrigated area. The petitioner's wife owns 8.43 acres and part of the said lands are in the irrigated area and the rest are in the non-irrigated area. The petitioner also contends that the petitioner is also shebait of Sri Sri Gopal Jew Thakur and the total area of the lands belonging to the said deity is 26.10 acres and the said lands were also situated partly in the irrigated and partly in the non-irrigated area. A provisional levy roll was published in Khanda Ghosh Anchal for the previous year wherein the petitioner's liability for levy was shown as 141 quintals. The petitioner made representation against the said levy roll. The matter was investigated and it was found that 14.76 acres were sandy lands where no paddy was grown and 38 acres were cultivated by bargadars. The petitioner states that it was found both by the Requiring Authority and the Appellate Authority in the said year that with great difficulty the petitioner delivered 100 quintals of paddy by purchasing the same from the market and the petitioner did not receive any paddy from his bargadars. The petitioner contends that the same situation continues for this year also and no bargadar was evicted by the petitioner. Inspite of such facts, the petitioner was again directed to deliver 141 quintals of paddy by the said impugned order. The petitioner contends that the said order was passed without determining the actual stock of paddy held by the petitioner and such assessment of levy was made on the basis of total area of land held by the petitioner without any reference as to the total yield received from the said lands by the petitioner. The petitioner challenges the vires of the West Bengal Foodgrains Procurement (Levy) Order 1977 promulgated by the State Government under the delegated power of the Central Government under the Essential Commodities Act, 1955. The petitioner contends that there has been delegation of power under section 3 (2) (f) of the Essential Commodities Act by the Central Government to the State Government and excepting the said power under section 3(2)(f) no other power has been delegated to the State Government.
(3.) Mr. Mallick the learned Counsel appearing for the petitioner contended that under the Essential Commodities Act, food' crop is an essential commodity but the land has not been included as an essential commodity. Mr. Mallick contended that the impugned order of levy was absolutely illegal and without jurisdiction because such order was passed without any reference to the actual stock of foodgrains held by the petitioner. Mr. Mallick also contended that the West Bengal Foodgrains Procurement (Levy) Order, 1977 is ultra vires the Essential Commodities Act inasmuch as the provision for assessment of levy is based on the quantum of different types of land held by a person but not on the basis of actual stock held by such person. Mr. Mallick in this connection referred to a decision of the Orissa High Court made in the case of Bijoy Kumar Routrai and others v. State of Orissa and others, reported in AIR 1976 Orissa 138. The Division Bench of the Orissa High Court took into consideration of the provisions of Orissa Paddy Procurement (Levy) Order, 1974. It was held in the said decision that the basic provision in the Orissa Paddy Procurement (Levy) Order 1974 imposing a levy on the basis of 'land holding' is not in conformity with section 3(2)(f) of the Essential Commodities Act under which the demand of levy is relatable to holding in stock. Consequently direction for sale as provided by the said order can only be in relation to the stock in the hands of the landholder and he cannot be subjected to a direction for sale of a quantity of paddy calculated on the basis of the acreage of land subjected to paddy cultivation. It was further held that the impugned provision of the Levy Order cannot be justified on the ground that the power to make the order is vested in the Central Government under sub-section (I) of section 3 and, therefore, the order is not in pursuance of power under sub section (2). This is so because the State Government is a delegated authority and its powers are those that are delegated to it by the Central Government under section 5 of the Act. Referring to the aforesaid decision of the Orissa High Court, Mr. Mallick contended that the West Bengal Foodgrains Procurement (Levy) Order is also land-oriented and not stock oriented. Accordingly the said West Bengal Levy Order is also illegal and void and was promulgated without any proper authority on the part of the State Government under the delegated powers from the Central Government.;