Madhavan Nair, J.
1. Writ Appeal No. 30 of 1968 is by the State against the judgment' 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 here-inbelpw 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 ail the 721 O. Ps. the learned Judge has held:
"The expression 'cultivator' has been denned 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 ot 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 far away 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 Orders 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 into 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 Orders 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 Article 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-section (3) or Subsection (3B) of Section 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 Section 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 price 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 Article 14 of the Constitution. I am further of 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 Article 31 (2) of the Constitution.
..... It will be noticed that, as in the case of the Levy Order, the Declaration Order also inelastically fixes the price to be paid for rice and paddy as the maximum prices fixed by the Maximum Prices Orders of 1965. The stock-holder 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 stock-holder to sell paddy or rice to the Government at the "controlled price" offends Article 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 Orders 1965 are unconstitutional or invalid.
In the light of my above conclusion re-Carding 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 Section 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;
4. On a motion (C. M. P. No. 1567 of 1968) in this Writ Appeal "to stay the operation of the declaration by the learned Judge that the ...... Levy Order, 1966, and Clause 4 of the ... Declaration Order, 1966, are illegal, till the disposal of the appeal", the learned Chief Justice and Mr. Justice Govindan Nair ordered: "...... issue notice also to the Advocates for the petitioners in the O. Ps. dealt with by the common judgment appealed against in the W. A." and we are told, at the bar, that such notice has been given to counsel. Mr. T. P. Kelu Nam-biar. appearing in response to the above-said notice, contended that this appeal is incompetent as the judgment impugned is not a final judgment in the O. P., which is still pending before the learned Single Judge. Comparing Section 5 (i) of the Kerala High Court Act with Clause 10 of the Letters Patent of the Allahabad High Court, counsel commended to us the dissenting judgment of Sri-vastava, J., in Standard Glass Beads Factory v. Shri Dhar, AIR 1960 All 692 (FB) where the question was whether an order of a Single Judge dismissing an appeal against an order granting a temporary injunction in a suit can be appealed against before a Division Eenqh. The learned Judge said:
"All kinds of decisions are, however, given in a suit or proceeding from the date of its institution to the date of its termination. It is obvious that it could not have been the intention to include all these decisions in the term 'judgment' and make them appelable irrespective of their nature or importance. If a decision amounts to a decree as denned in the C P. C., it would certainly amount to a judgment within the meaning of the Letters Patent."
But, Mootham. C. J., with whom Dayal, J., agreed, has observed in the abovesaid case, AIR 1960 All 692 (FB):
"Now the order the nature of which we have to determine is an order which finally determines the right of a party to a specific temporary relief. It stems from a suit and its purpose is to make the judgment, if obtained, fully effective. It is neither an order which merely regulates procedure nor an order made on an application which is merely a step towards obtaining a final adjudication. Such an order is in my opinion neither a final judgment nor a preliminary Judgment which had been assumed to mean (and I think correctly) a judgment which determines the right to the relief claimed but "which requires further proceedings to be taken before the suit or appeal is finally disposed of.
The grant or refusal of an interim injunction may cause substantial loss to a party adversely affected by the order; and the refusal to grant this provisional relief may result in the suit becoming largely infructuous. Such an order if made by a subordinate Court is appealable under Order 43 Rule 1 Clause (r) Civil Procedure Code. ............ I would accordingly answer the question referred to us in the affirmative."
5. I do not think it necessary to refer here to Prem Chand v. State of Bihar, AIR 1951 SC 14 which concerned with the meaning of the term 'judgment' in a Letters Patent; or to Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198 where the order concerned was one transferring a suit from one Court to another without adverting to the merits of the controversy in the suit or a part of it.
More pertinent seems to me the observations of the Judicial Committee in Rahimbhoy Hibibbhoy v. C. A. Turner, (1890) 18 Ind App 6 (PC) where the suit was for accounts and the defendant denied liability to account, but the High Court found him liable to account and remitted the suit to the Court of trial for settling accounts:
"Now that question of liability was the sole question in dispute at the hearing of the cause, and it is the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the defendant in such a way that in this suit it is final. The Court can never go back again upon this decree so as to say that, though the result of the account may be against the defendant, still the defendant is not liable to pay anything. That is finally determined against him, and therefore in their Lord-ships' view the decree is a final one within the meaning of Section 595 of the Code (present Section 109, C. P. C. 1908)." In Syed Muzhar Husein v. Bodha Bibi (1895) 22 Ind App 1 (PC) the plaintiff based his claim under a will whose validity was challenged by the defendant. The High Court upheld the will and sent back the case for decision of other issues. The Privy Council held an appeal from that order of remand entertainable because the cardinal point in the case was about the will and that had been decided by the High Court leaving only certain subordinate enquiries to be made thereafter.
6. In Kasi v. Ramanathan Chettiar, 1947 Mad WN 723 the question was whether an appeal would lie against an order directing a fresh report by a commissioner on the accounts of a partnership, when that order contained an adjudication on the substantive rights of the parties with regard to several matters In controversy in the suit. Patanjali Sastri J., (as he was then), with concurrence of Tyagarajan, J., observed:
"Even under the old Code which did not expressly provide for the passing of a 'preliminary decree' in any suit, their Lordships of the Judicial Committee stressed the expediency of passing such decrees so as to make it possible to prefer an immediate appeal to settle that part of a case on which the decision of the other parts depended. They observed in Muhammad Abdul Majid v. Muhammad Abdul Aziz, (1897) ILR 19 All 155 at p. 164 (PC):
'The learned Judges of the High Court have examined the Code minutely to show that Subordinate Judge Kashi Nath Biswas acted under its provisions. Their Lordships think that such an examination is hardly necessary. The Subordinate Judge had before him a case consisting of two parts, a question of title, and an incidental question of account depending largely on the title. It was for the ob-vious advantage of the parties, and they proposed, that the first part should be decided and the second reserved for decision. In point of fact the first part has been the subject of successive appeals by the defendant, who successfully struggled against the trial of the second part pending these appeals. If the Code forbade the parties and the Court so to arrange the disposal of a law suit, it would be a very starting thing. It is not pretended that the Code contains any such prohibition.'
...... It is next contended for the respondent that ...... the decision of the 20th August, 1946, amounts to no more than findings recorded on certain parts of the case and no appeal lies therefrom. (Referring to the definition of a decree in the C. P. C. his Lordship continued). The sub-section does not say that the adjudication should conclusively determine the suit. Indeed it says the contrary: 'determines the right of parties with regard to all or any of the matters in contoversy in the suit', and by adding the 'explanation' further makes it clear that the adjudication in order to be a decree, need not dispose of the suit. ...... The new Code has enacted a comprehensive definition of 'decree' and has imposed upon the suitor, by Section 97 the necessity of appealing against preliminary decrees, and the only question can be whether a particular decision falls within the definition. No doubt, it is not always easy to determine this question owing to the somewhat vague language employed, and there may be room for divergence of opinion, as can be seen from the variety of cases referred to above. We are, however, satisfied that the decision under appeal fulfils the condition of Section 2 (2) and we hold that this appeal is maintainable under Section 86 of the Civil Procedure Code."
7. Applying the principle in the iabovecited precedents, I hold that the present 'judgment' -- it is styled so by the learned Judge who delivered it --which determines the main point in the case (namely, the constitutional validity of the impugned Orders) on which the (reliefs sought in the O. Ps. depend largely is a preliminary judgment within the meaning of the C. P. C. and is appeal-able as such under Section 5 (i) of the High Court Act.
8. As arguments on the merits of Writ Appeal No. 30 of 1968 proceeded. Mr. Velayudhan Nair, Mr. Suryanarayana Iyer and Mr. Easwara Iyer (who have already entered appearance in response to the general notice referred to above) stated that they have, on behalf of petitioners in five of the 721 O. Ps. disposed of by the judgment under appeal, filed Writ Appeals Nos. 76 to 80 challenging the validity of the Maximum Prices Orders and of the entirety of the Declaration Order as also the findings of the learned Judge against points urged by them against the Levy Order, and requested that those appeals may be heard along with the Writ Appeal No. 30 of 1968 in the present hearing itself. As the learned Advocate General took notice of those appeals and agreed to their being heard now, it was so ordered by us on March 8, 1968 and the hearing continued as on all these writ appeals together. I. The Kerala Rice and Paddy (Procurement by Levy) Order.
9. The learned Judge has struck down the Levy Order on the ground that the definition of 'cultivator' therein is vague and arbitrary, and "the same is inextricably woven throughout the texture of the Levy Order." The latter observation appears well justified as Clause 3 of the Order compels 'every cultivator' to sell to Government or its agent or nominee paddy derived from lands cultivated by him, Clause 3-C directs 'every cultivator holding more than 2 acres of land' to inform the Village Officer concerned 7 days before harvest of his intention to harvest the crop and the anticipated production thereof, Clause 4 authorises officers to issue a notice to 'each cultivator' to sell a specified quantity of paddy. Clause 6 allows 'any cultivator' who is not in a position to comply with such notice to file an objection petition before the Taluk Supply Officer who will hear the matter, Clause 9 empowers Taluk Supply Officers to order seizure of the quantity of paddy due from a defaulting 'cultivator', and Clause 13 concedes a power to Government to exempt a class or classes of 'cultivators' from the operation of the provisions of the Order; but the observation that the definition of a cultivator in the Order is vague and arbitrary doea not appear warranted.
Clause 2 (b) of the Levy Order defines a cultivator thus:
" 'Cultivator' means a person who actually cultivates any land with paddy." To me this definition appears to be plain, simple and expressive of the ordinary sense of the term with particular emphasis on paddy being the object of the cultivation. Pertinent seems to be the observation of the Supreme Court in Sek-saria Cotton Mills Ltd. v. State of Bombay, AIR 1953 SC 278 para 23:
"it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding."
The assumption of the learned Single Judge that the expression "a person who actually cultivates" would, "signify one who actually puts his hand to the plough and plough to the soil" and would therefore include "even a servant or labourer of an owner of land to be regarded as a cultivator" does not appear to be correct, If I engage a servant or employ a labourer to plough my land or to BOW seeds thereon, the common man would mention me to have cultivated the land, and not the servant or the labourer who did the manual work more or less as a machine and for my sake. When one does an act through the hand of another, one is in law and in fact doing it oneself really. The expression "actually" in the definition does not appear to cause any confusion. The dictionary meaning of the word "actually" is "really" "in actual fact"; and of the word "actual" is "real, 'existing in fact". If facts are assessed in proper perspective there can be little doubt that, when I engage a servant or a labourer to do a work for me, the work is mine, and mine only. Further, culti vation is not mere putting of the plough to the soil. As has been observed in Commissioner of Income-tax West Bengal v. Benoy Kumar Sahas Roy, AIK 1957 SC 768 at p. 788 "cultivation of land in the strict sense of the term means tilling of the land, sowing the seeds, planting and similar operations on the land" like manuring and watering. If I purchase seed and manure and employ a labourer to strew or spread them on the land, will he be said to have planted and manured the land? Qui facit per alium fa-cit per se (He who does anything by another does it himself) is a maxim well known in law and in practice.
10. The learned Advocate General urged that the attempt of the Court should be to uphold the law made by a responsible Government if that be fairly possible and submitted that, even if the definition clause in the Order is found to be too wide for its purpose, the Court may limit its sense to make it consistent with the object of the statute and that, in the context of the Levy Order that aims at large scale purchase of paddy by the Government, the cultivator is a person who raised the crop of paddy and has the capacity to sell it.
In R. M. D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628 Venkatarama Ayyar, J., speaking for a Constitution Bench of the Supreme Court, has observed:
"The definition of 'prize competition' in Section 2 (d) is wide and unqualified in its terms. There is nothing in the wording of it, which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. ...... To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act. ...... Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill."
Similarly, in Workmen of the Dimaku-chi Tea Estate v. Management of the Dimakuchi Tea Estate, AIR 1958 SC 353 the expression 'any person' in the context of its use in the definition of an industrial dispute was held to mean not anybody in the world but one of a limited class and therefore not to include an assistant medical officer of the Tea Estate though his dismissal was challenged by the workmen. The Supreme Court observed;
"A little careful consideration will show, however, that the expression 'any person' occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world, First of all, the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject-matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject-matter and scheme of the Act, and consistently with the objects and other provisions of the Act. ... Having regard to the scheme and objects of the Act, and its other provisions, the expression 'any person' in Section 2 (k) of the Act must be ... one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class have a direct or substantial interest."
In Kanwar Singh v. Delhi Administration, AIR 1956 SC 871 the Supreme Court held:
"In the context in which it occurs in Section 418 (1) (of the Delhi Municipal Corporation Act) the meaning which can reasonably be attached to the word 'abandoned' is 'let loose' in the sense of being 'left unattended' and certainly not 'ownerless'."
The ratio of these decisions is reiterated by Gajendragadkar, C. J., in Sheikh Gulfan v. Sanat Kurnar Ganguli, AIR 1965 SC 1839 at p. 1845 in these words:
"Often enough, in interpreting a statutory provision, it becomes necessary to have regard to the subject-matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assume relevance and become material. As Halsbury has observed, the words 'should be construed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from that context."
It follows from these precedents that the definition of cultivator in the Levy Order must be construed in consonance with the other provisions of the Order land its object.
11. Before the learned Judge the Government pleaded "that ownership of the land is not the criterion for demanding levy and that the test is actual cultivation;" but it was repelled with the observation "All the same to enforce a sale of paddy from the actual cultivator, without any regard to his property or beneficial interest in the lands -- or the lack of these -- is inequitable in the extreme". In the context of the Levy Order, which aims at procurement of paddy for equitable distribution in a period of food shortage in the country, the cultivator from whom the paddy is to be purchased under the Order can only be a person who has such beneficial interest in the paddy (not the land) concerned as to be capable of transferring the goods to the Government. He cannot be a mere servant or labourer who merely "puts the plough on the soil"; but his interest need not amount to a proprietary interest in the land. An imposter or even a trespasser who has raised and harvested a crop of paddy unlawful may be a cultivator within the meaning of the Levy Order; and that will be so even if a suit is pending for his eviction. To me, that person who directs the agricultural operations on a piece of land and takes the yield on harvest with a right or power to dispose it is the person who actually cultivates the land. Such appears to me the intent and meaning of the Levy Order.
12. Mr. T. N. Subramonia Iyer exhorted us to condemn the definition of a cultivator in the Levy Order "as it cuts across the known norms of land-holding and of interests in landed property and is therefore arbitrary and invalid" and explained it by pointing out that the cultivator of a land may be the owner, a co-owner, a tenant, a sub-tenant, an agent, or a servant, but there is no provision in the Levy Order to oblige the officer who makes a demand for the levy to make any enquiry as to the interest of the cultivator in the paddy raised by him. I see little force in this contention. Whatever might have been the position before September 4, 1967 -- which need not be canvassed here as the paddy raised then, whether procured by the Government or left with the cultivator, must have been disposed of long ago and therefore cannot now be made the subject of an effective writ or direction (cf. K. N. Guruswamy v. State of Mysore, AIR 1954 SG 592 Last Para) -- after the introduction of Clause 3C in the Levy Order there can be little chance for error in naming the cultivator for purposes of the levy. That clause obliges every cultivator, who IB liable for a levy, to inform in writing, 7 days before harvest, on penalty of a year's imprisonment, the Village Officer concerned the extent of land cultivated by him, the proposed date for harvest and the anticipated production. If any Officer turns down the information so given and the request for permission to harvest, the cultivator can appeal to the Government or to the Commissioner or Director of Civil Supplies for relief. If the Officer did nothing in 7 days after the information is furnished he will be presumed to have accepted it and given permission to the informant-cultivator to harvest the crop. The learned Judge has observed, and I agree with it:
"that the notice under Clause 4 is to be issued only after receipt of the information furnished by Clause 3-C and it cannot be lightly assumed that the officers in question would arbitrarily maff-nify either the extent of the holding or the yield from the harvest. It may be that the Levy Order does not in terms provide for investigation of an objection as to whether a person is a cultivator within the meaning of the Levy Order or not. But this is a jurisdictional fact on which depends the jurisdiction of authorities to issue the requisite notices and to take the requisite action under the Order. It was rightly conceded by the Government Pleader that this jurisdic tional fact, if denied by the person concerned, is liable to investigation and decision by the authorities functioning under the terms of the Order."
As the levy under the Order is of the paddy harvested, it is difficult to imagine that a person other than the one who was permitted to harvest the crop under Clause 3-C would be asked to deliver the levy. However, if any officer chooses to demand levy from a person who is not the cultivator thereof, or says that he has cultivated more than 2 acres when he has cultivated only two acres or less, he can prefer his objections thereto under Clause 6 (1) of the Order before the Taluk Supply Officer who is directed to enquire and decide the same; and in case he does not get relief thereby he can appeal under Clause 6 (3) before the District Supply Officer and/or approach the Government or the Commissioner or Director of Civil Supplies for relief under Cl. 11. If a principal or a co-owner or an employer has cultivated his land through his agent, co-owner or labourer, it is upto him to claim the crop and give written Information, under Clause 3-C, of his cultivation to the VIIlage Officer and then to harvest it. The procedure prescribed in Clause 3-C leaves little room for any mistake in fixing the cultivator for purposes of lew even if the definition be assumed to be vague. I do not find anv inequity, much less arbitrariness, in the definition of a cultivator or in the procedure laid down in the Levy Order for procuring the levy paddy from the cultivator.
13. The learned Judge has 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 b to be assessed, and thereby violates Article 31 (2) of the Constitution." Clause 7 requires the Government or its officer or nominee puichasing paddy to pay its price "at the prevailing market rate but not exceeding the maximum price specified by the Government for the lime being under" the concerned Maximum Prices Order Mr. K. V Survanaravana Iyer cited State of Weal Bengal v. Mrs. Bela Banerjee, AIR 1854 SC 170, State of Madras v. D. Namasivava, AIR 1965 SC 190, Vajravelu Mudaliar v. Special Deputy Collector for Land Acquisition, West Madras, AIR 1965 SC 1017. N. B. Jeejeebhov v. Assistant Collector, Thana, AIR lWi5 SC 1096, Union of India v. Metal Corporation of India. AIR 1967 SC 637 and Deputy Commissioner and Collector. Kamrup v. Durganath Sarma, AIR 1968 SC 394 to urge that the price paid to the cultivator for the paddy procured by the Government should be a "just equivalent" to the commodity taken from him. Nobody disputes that proposition here. But the material question is what Is the "just equivalent". It cannot be price that is "adequate" which is placed beyond judicial review by the Article 31 (2) of the Constitution, which commands ",..... no such law shall be called in question in anv Court on the ground that the compensation provided by that law is not adequate." Counsel urges that both the Essential Commodities Act and the impugned Levy Order refer to a market price different from the controlled price of the commodity and that it must be common knowledge that at a time of food shortage the market price will always be far above the controlled price It is well known that the market price for seasonal crops, like paddy, changes largely from time to time, particularly to fall considerably in the wake of a harvest and to rise thereafter till the next harvest takes place. Public interest in maintaining the once of food-grains at a fair level, without a flare up on account of scarcity which has come to stav as a fact for some time in our country, requires the market to be controlled by the State. Section 3 (2) (c) of the Essential Commodities Act - hereinafter 'the Act' -- contemplates an order "for controlling the price at which any essential commodity may be bought and sold." Such a control may be exercised by fix-Ing the actual price of the commodity at a particular time or by fixing a maximum price for the commodity which may stand good till modified, or by fix-Ing a minimum price. By the Maximum Prices Orders made on September 3, 1965, the State Government has fixed maximum prices at which rice or paddy might be sold by any person in the State. When such an Order has been issued any violation of it becomes a wrong punishable under Section 7 (i) (a) (ii) of the Act with a prison-term which may extend to five years and with fine. When such fixation of maximum price is in force the market price cannot rise above it: it may be anything equal to or less than the maximum price. Any sale at a price above it will not be lawful and therefore cannot afford a standard for "just equivalent" for the commodity. The word 'just' in 'just equivalent' seems to repel consideration of any illegal transaction as its standard. If dealings with racketeers or other anti-social elements in black market are to rule the price of paddy procured for equitable distribution, the object of the Act and the Levy Order -- 'for securing availability at fair prices' -- is certain to be defeated. They cannot afford a standard for governmental action or judicial considerations. The contention that the Government is empowered by the Maximum Prices Orders to sell the foodgrains to the consumers at prices above the maxima fixed under them is not correct as the said Orders have only allowed the Government to fix separate maximum prices for the rice and paddy procured and sold by the Government "after taking into consideration expenses on account of transport, storage and other Incidental charges." I do not find anything unfair or illegal therein. The provision in the Levy Order for payment of price to the cultivator "at the prevailing market rate subject to the maximum price specified by the Government for the time being under" the concerned Maximum Prices Order does not therefore spell any negation of a just equivalent or a violation of Article 31 (2) of the Constitution.
It is conceded at the bar that ever since 1966 cultivators have been paid at the maximum price fixed by the Maximum Prices Orders, besides other cash incentives by way of bonus to step up production and co-operation with the scheme for levy.
14. There is a controversy in the case whether the Levy Order is governed by Sub-section (3) or Sub-section (3B) of Section 3 of the Act. Mr. Justice Gopalan Nambiyar felt no necessity to solve it as his Lordship held: "Whichever be the sub-clause (either subsection (3) or sub-section (3B) that applies ...... the controlled price is not the sole determinant of the price to be paid" and to the extent the Levy Order has recognised so it has "travelled beyond the provisions of the parent Act viz., the Essential Commodities Act." I am afraid that the above observation cannot be correct, particularly when the learned Judge has accepted the Maximum Prices Orders as valid and constitutional. Mr, K. T. Harindranath characterised Section 3 (3) as a general provision in respect of all essential commodities and Section 3 (3B) as a particular provision in respect of foodgrains, edible oilseeds and edible oils only, and contended that subsection (3B) alone governs. The learned Advocate General submitted that Section 3 (3B) is not attracted to this case, and what applies is only Section 3 (3) of the Act He pointed out that an Order made under Section 3, as indicated in its Subsection (5), may be either one of the general nature, or one directed to a specified individual, and contended that Section 3 (3) applies to Orders of the former category like the instant Levy Order, while Section 3 (3B) applies to Orders of the latter kind.
The argument is ingenuous and seemingly attractive. But I do not think it to be quite right. The distinction drawn between the expression in Section 3 (3) "Where any person sells any essential commodity in compliance with an order" and the corresponding one in Section 3 (3B) "Where any person is required by an order" evaporates when they are put in juxtaposition with the primary expression in Section 3 (2) (f) "(an order made) for requiring any person ...... to sell". I would therefore accept Mr. Ha-rindranath's distinction and hold that Section 3 (3B) governs the Instant Levy Order.
15. Mr. V. R. Krishna Iyer urged that the cultivator is entitled to the current market price of the foodgrains procured from him by the Government. He cited the observation in AIR 1967 SC 637.
"Under Article 31 (2) of the Constitution, no property shall be compulsorily acquired except under a law which provides for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given." and urged that Section 3 (3B) of the Act, when it said "there shall be paid to that person such price for the foodgrains ...... as may be specified in that order" imperatively insists on the first of the alternatives, namely fixation of the amount ofcompensation itself in the Order, but the State Government has ignored those commands of the Act in the impugned Order professedly made under the Act itself. In other words, the contention is that, in not specifying the price as such in the Order the State Government has transgressed the limits of the delegation conceded to it and the Levy Order is for that reason invalid. Sub-section (3B) commands:
"Where any person is required by an order made with reference to Clause (f) of Sub-section (2) to sell any grade or variety of foodgrains ...... to the ...... State Government or to an officer or agent of such Government ...... there shall be paid to that person such price for the foodgrains ...... as may be specified in that order having regard to --
(i) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgraina ......I and
(ii) the price for such grade or variety of foodgrains ...... prevailing or likely to prevail during the post-harvest period in the area to which that order applies.
Explanation:-- For the purposes of this sub-section, 'post-harvest period' in relation to any area means a period of four months beginning from the last day of the fortnight during which harvesting operations normally commence." This sub-section requires the price to be paid for the paddy to be procured to be specified in the Order, It is contended that the provision in the Levy Order that such price "shall be at the prevailing market rate but not exceeding ...... the maximum price specified by the Government for the time being under the (relative) Maximum Prices Order" would not satisfy the requirement of the subsection. The force of this contention depends on the import of the word "specified".
16. It is pertinent to note here thati Article 31 (2) of the Constitution uses two different verbs 'fixes' and 'specifies' and requires the law of acquisition either to fix the amount of compensation or to specify the principles on which the com-pensation is to be determined. The direction in the Section 3 (3B) of the Act is only to specify the price. I am afraid-that in not using the word 'fix' in relation to the price, the Act expresses its intention not to require the price to be given in Rupees and pies in the Order itself. To me the expression 'specify' is deliberately used in the Act to mean only that the price should be indicated in the Order with such particularity as to make it capable of definite ascertainment In Davidson v. Carlton Bank Ltd.. (1893) 1 QB 82, Lord Esher M. R. (with concurrence of the other two learned Judges of the Court of Appeal) held an entry in a bill of sale "Study -- 1800 volumes of books as per the Catalogue" to be "a specific description of the books" within the meaning of Section 4 of the Bills of Sale Act, 1882, that required the chattels assigned under a bill of sale to be "specifically described" in a schedule annexed to it. Likewise, in Carpenter v, Deen, (1889) 23 QBD 566, Fry, L. J. observed:
"In considering the meaning of the words 'specifically described', we should look at the scope and object of the section. They are in my opinion plain. I think they are ...... to render the identification as easy as possible, and to render any dispute as to the intention of the parties as rare as possible, ...... That is to be done as far as possible; by which I mean, as far as is reasonably possible -- so far as a careful man of business trying to carry the object of the Act into execution could and would do without going into unreasonable particulars." The Bengal Foodgrains (Disposal and Acquisition) Order, 1947, directed that a notice or Directive issued to a cultivator "shall specify the price" of the paddy directed to be sold by him. The notice given to Ramachandra Pal was to sell paddy to K. M. Dey at a price not exceeding Rs. 7-8 per maund subject to deduction on account of poorness of quality and cost of transportation and other incidental charges incurred by the Government. Bose, J., cited Attorney General v. Marquis of Hertford, (1845) 153 EH 484 (488) where Baron Parke held ".700 or less" to be a "specific sum" for purposes of exemption from legacy duty and held:
"To construe the words 'specify tha price' to mean that a definite or fixed or unalterable amount must be set out in the Directive as the price, is in my view too rigid a construction to be put on the terms of Clause 3 (2) of the Bengal Foodgrains Order, 1947. If a definite basis for ascertaining the price is indicated there is sufficient compliance with the Statute," (Ramachandra v. Hiramba Kumar, AIR 1952 Cal 502).
Sub-section (3B) was inserted in Section 3 of the Essential Commodities Act 14 years after this pronouncement, by the Act 25 of 1966 on September 3, 1966. I think likewise must be the import of the expression therein "there shall be paid to that person such price for the foodgrains, edible oilseeds or edible oils as may be specified in that order." If that be so the description "at the prevailing market rate but not exceeding the maximum price specified by the Government for the time being under the relative Maximum Prices Order" is specific within the meaning of the said Subsection (3B).
17. It was then urged that the cultivator is entitled under Sub-section (3B) to be given a price specified in the Order haying regard to the price "likely to pre-vail during the post-harvest period in the area to which that Order applies" and that the same is ignored by the instant Levy Order. I do not feel persuaded by this argument. The area to which the instant Order applies is the State of Kerala -- the whole of it. The sub-section in question does not say that any possible future price should necessarily be taken into account when the cultivator is paid for the procured food-grains. It mentions 'the price likely to prevail during the post-harvest period' only as an alternative to the 'price prevailing' as a factor for consideration in specifying the price to be paid for the grains procured. The "price prevailing" must necessarily relate to the current time, and not to any future and that is the alternative that the Levy Order has adopted when it provided that the cultivator shall be paid "at the prevailing market rate but not exceeding the maximum price." As has already been said, when both the controlled price and the prevailing or likely-to-prevail price are directed to be taken into consideration, the latter can only be envisaged as one below the controlled price and not exceeding it. As it is conceded that the cultivators have, since the date of promulgation of the instant Levy Order; been paid the maximum price fixed by the Government, they cannot have any legitimate grievance in this regard. The contention fails.
18. Thus, the grounds on which the learned Judge has struck down the Levy Order or its Clause 7 do not appear to me substantial.
19. Mr. K. Velayudhan Nair's attempt was to sustain the declaration of Invalidity of the Levy Order on certain grounds that have been repelled by the learned Judge. He contended that the promulgation of the Order is beyond the authority delegated to the State Government and therefore void, and explained it thus: The Levy Order has been mada on 1st July, 1966, in exercise of powers conferred by the Central Government on the State Government as per G. S. R. No. 906 dated 9th June, 1966; that G. S. R. had been superseded by G. S. R. No. 1111 dated 24th July, 1967; supersession implies a repeal of the superseded Order and therefore when G. S. R. No. 906 was superseded and thereby repealed without a provision to save existing orders, the Levy Order lost its legislative authority and became an ultra vires piece from the date of supersession. It was pointed out that G. S. R. No. 1111 contained no clause to save Orders issued under the prior G. S. R while G. S. R. No. 906 had such a clause: and that G. S. R. No. 1111 itself had been amended by G. S. R. No. 1508 D/- 30-9-1967 directing prior concurrence of the Central Government to be taken before the State Government made an order under clauses (a), (c) or (f) of Section 3 (2) of the Essential Commodities Act, but no concurrence has so far been obtained to the impugned Levy Order.
Mahendra Lal Jainf v. State of U. P., AIR 1963 SC 1019 para 14 declares it to be "absolutely elementary that the constitutionality of an Act must be judged on the basis of the Constitution as it was on the date the Act was passed, subject to anv retrospective amendment of the Constitution". I do not see reason why the same principles should not apply when the question is of constitutionality or vires of a Statutory Order. No authority has been cited to avoid its applicability to Orders and other pieces of subordinate legislation.
The Levy Order was made by the State Government on 1st July, 1966, under authority conferred on it by G. S. R. No, 606 dated June 9. 1966. That G. S. R. did not require any concurrence of the Central Government for Orders relating to matters specified in Clause (f) of Section 3 (2) of the Act. Nor has G. S. R No. 1508 dated 30th September, 1967, that prescribed prior concurrence of the Central Government, been made to apply to Orders already made. The Levy Order has therefore to be held to have been lawfully made on the date of its promulgation and not to require a concurrence of the Central Government for its validity.
20. The contention that, with the supersession of G. S. R. No. 906 by G. S. R No. 1111 on July 24, 1967 the Levy Order lost its validity cannot also be accepted. The distinction between a supersession and a repeal is pointed out in Nand Kishore v. Emperor, AIR 1945 Oudh 214 thus:
"...... It was argued that the Notification of 26th August, 1943, having been superseded it should be deemed never to have existed at all. ...... It is true that, as stated by Tindal, C. J.. in (1830) 6 Bine 576, the effect of repelling a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. ...... The effect of an Act or Order which is superseded is not to obliterate it altogether. An Act or order is said to be superseded where a later enactment or order effects the same purposes as an earlier one by repetition of its terms or otherwise. ...... The order of 1943, for the breach of which the petitioner was prosecuted was never repealed, or in other words it was never obliterated altogether. On the other hand it continued to exist till Government decided to effect the same purpose as was contemplated by that order by another order. There is nothing in the law which would justify the contention that after the supersession of that order no proceedings in respect of its breach could be commenced. The provisions of Section 6, U. P. General Clauses Act, apply only to repealed Acts and not to Acts which are superseded by others There is, as shown above, an essential distinction between an Act or Order which is repealed and one which is superseded. The first contention must, therefore, be rejected."
This has been followed by the Mysore High Court in Syed Mustafa Mohamed Ghouse v. State of Mysore, 1963-1 Cri LJ 372.
Even in regard to the expiration of a temporary statute the Supreme Court has observed in State of Orissa v. Bhupendra Kumar Bose, AIR 1962 SC 945:
"What the effect of the expiration of a temporary Act would be, must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. ...... If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired."
If such be the effect of expiry of a temporary legislation, it must be more strongly so in case of a repeal and simultaneous re-enactment -- same thing as supersession -- of an enduring legislation by another. G. S. R. No. 906 was not 'temporary'. The Levv Order made under it is also not 'temporary' but is obvious-ly intended to last for an indefinite time G. S. R. No. 900 was not repealed but only superseded by G. S. R. No 1111. There is nothing in the latter Rule or in any subsequent Order or Rulf indicating an intention to annul Orders issued under anv prior G. S. R. True. G. S. R No. 906 contained a clause and a proviso "that the Orders ...... specified in the Schedule below shall stand rescinded: Provided that, notwithstanding such rescission, any order made by a State Government ...... in pursuance of the orders so rescinded ...... shall continue in force according to its tenor. ......" There is no similar proviso or saving clause in G. S. R. No, 1111, for the obvious reason what it does not purport to rescind anything. To me the following observations ot the Supreme Court in regard to repeal and re-enactment of a statute appear pertinent here:
"One mav pause here to remember that regulations framed under an Act are ot the very greatest importance. Such regulations are framed for the successful operation of the Act. Without proper regulations, a statute will often be worse than useless. When an Act is repealed, but re-enacted, it is almost inevitable that there will be some time lag between the re-enacted statute coming into force, and regulations being framed under the re-enacted statute. However efficient the rule-making authority may be it is impossible to avoid some hiatus between the coming into force of the re-enacted statute and the simultaneous repeal of the old Act and the making of regulations. Often, the time lag would be considerable. It is conceivable that any legislature ...... could have intended ...... that ...... the re-enacted statute, for some time at least, will be in many respects, a dead letter? The answer must be in the negative." (Chief Inspector of Mines v. Karam Chand Thapar, AIR 1961 SC 838).
"When the appeal Is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, ...... The line ot enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an Intention to destroy them," (State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84),
There is no reason why the abovesald principles should not apply mutatis mm tandis to supersession of Statutory Orders as well -- particularly since it is said "subordinate legislation has, if va-lidly made, the full force and effect of a statute" (Halsbury's Laws of England 3rd Edn. Vol. 36, para 732). It follows that on the mere supersession of G. S. R. No. 906 by G. S. R. No. 1111 of almost identical import, the Levy Order made under the former would not lose its life or vitality.
21. Mr. Velayudhan Nair read Subsection (6) of Section 3 of the Act:
"Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after-It Is made."
and contended that as the Levy Order, admittedly made under Section 3 of the Act has not been so far laid before the Parliament it is for that reason invalid. Mr. S. Easwara Iyer added that as an unbridled discretion to make Orders for various matters is envisaged in Section 3 of the Act the only legislative control adumbrated in the sub-section (6) has to be held mandatory. The learned Judge has overruled these contentions with the observation:
"The requirement of laying before Parliament is enjoined ...... only with respect to an Order made by the Central Government under Section 3 of the Act and not with respect to one made by the delegate under Section 5 thereof. ... There is also sufficient authority to hold that the requirement of laying before the Parliament without any timw limit therefor, nor any penalty for disobedience or default, is in the circumstances, only directory and not mandatory. (Vide AIR 1966 SC 385 and 1960 Ker LJ 1319.)"
It is obvious that, by its expression, tha sub-section does not make the laying be-fore the Parliament a condition prece-dent to the validity of the Order: nor does it annul the order if it is not laid before the Parliament within a specified time. A law once brought to force normally continues in force till it is determin-ed by a statutory provision therefor. To interpret the expression in the Sub-section 'as soon as may be' to mean 'within a reasonable time' as counsel would have it, would make the duration of the law uncertain and therefore cannot be accepted. As indicated by the Supreme Court in Jesan Nath v. Jaswant Singh AIR 1954 SC 210:
"It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with It is made penal."
In Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385, a direction in the Bombay Agricultural Produce Markets Act that rules made under It "shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following" to held by the Supreme Court not to be mandatory:
"It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules merely because they have not been placed before the Houses of the Legislature."
Halsbury's Laws of England, (3rd Edn. Vol. 36, pages 486-7) also says:
"Many statutes conferring legislative powers provide that instruments made In exercise thereof shall be laid before Parliament (or, in some cases, the House of Commons alone) after being made, but do not subject them to any further procedure. Before 1948, the effect of such a provision was in every case a matter of construction. It might be provided that an instrument was not to come into operation until the expiry of a specified period after laying; but no more was normally required than that it be laid, or laid forthwith or as soon as may be, or laid within a specified period, and in these latter cases the provision would, unless the contrary intention clearly appeared be held directory rather than mandatory, failure to lay the instrument at all, or within the time specified, in no way affecting its validity."
22. The Sub-section (6) of Section 3 of the Act requires only "Every order made ...... by the Central Government or by any officer or authority of the Central Government" to be laid before the Parliament, even though Section 5 of the Act expressly contemplates the State Governments and even officers subordinate to State Governments to make Orders under delegation by the Central Government. It is pertinent to note that as early as 1964 the Indian Law Institute has, in its publication "Administrative Process under the Essential Commodities Act", (vide page 89 therein) pointed out that it is a patent lacuna in the Act that only an Order made by the Central Government, or officer or authority under it, need be scrutinised by the Parliament; but not an Order made by a State Government or by an officer or authority under it and yet the Act has not so far been amended by the Parliament. The indication is obvious that the obligation Is not laid on the State Government to lay Orders made by it before the Parliament.
23. Mr. Easwara Iyer challenged Section 3 of the Act as unconstitutional because it contains no legislated guidance as to the scope and ambit of the Government's powers to make Orders under it, and particularly Section 3 (2) (f) which did not prescribe the maximum limit of stock to attract a liability to sell. The following observation of the Supreme Court -- though expressed in a different context -- appear to me pertinent, when read mutatis mutandis here:
"Quick decision and swift and effective action must be of the essence of those powers and the exercise of it must, therefore, be left to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make the exercise of these powers justiciable and subject to the judicial scrutiny will defeat the very purpose of the enactment. ...... No assumption ought to be made that the State Government or the authority will abuse its power. ... Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of power." (Virendra v. The State of Punjab, AIR 1957 SC 896 at p. 901), Considering the object of the Levy Order, which is to secure "equitable distribution and availability at fair prices". of foodgrains for all at a time of countrywide food shortage, the determination of quantity to be procured from or to be allowed to be retained by a producer must necessarily be left to the State Government who is the best appraiser of the pressure of the time, the urgency of the situation and the maintenance of public morale. Even a monopoly procurement may be justified if circumstances require such a course I am not persuaded to hold that the defects attributed by counsel to Section 3 of the Act are substantial.
24. Mr. Velayudhan Nair wanted the expression 'holding' to be interpreted, 33 the Supreme Court has done in K. K, Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191 to "include a two-fold idea of the actual possession of a thing and also of being invested with a legal title" and therefore to construe the expression in Section 3(2) (f) of the Act a "person holding in stock", to refer only to a person who has both possession and title to the paddy at hand, and to impose that limitation into the definition of a cultivator in the Levy Order. The Supreme Court has not said categorically that the expression 'holding' connotes possession and title, and has added to their observation cited by counsel, "Sometimes it is used only to mean actual possession". It cannot then be said on the authority of the Supreme Court that the word 'holds' includes invariably possession and title of the thing held. What it means in a particular context must necessarily depend upon the context itself. In a legislation designed to meet urgent public need for food-grams, the title to property in the paddy, which is a matter of individual concern between the rival claimants thereto, cannot enter seriously for consideration. Procurement for price paid involves little deprivation of property: it works only a conversion of the commodity into its equivalent in cash. In the circumstances of the Levy Order an investigation on ultimate title is neither relevant nor practical.
25. Mr. Cheriyan Manjooran urged that there is a real distinction between producers and cultivators, that the Essential Commodities Act aims to catch only the former and not the latter and that the Levy Order in dealing with 'cultivators' has travelled beyond the Act. Section 3 (2) (f) of the Act does not use the expression 'producer'. Section 3 (3C) which uses that expression is unrelated to paddy or rice with which only the Levy Order is concerned. In the context of the Levy Order it is also difficult to say that the cultivator of paddy is not one of the class of producers of food-grains.
It was next contended by him that Section 3 (2) (f) of the Act that deals With 'stock' of foodgrains, can refer only to a stage of storage after providing for one's requirements and therefore cannot empower the promulgation of the instant Levy Order that directs procurement as eoon as paddy is harvested and before the requirements of the producer are ascertained and allowed for, and that therefore the Levy Order is ultra vires of Section 3 (2) (f) of the Act and void. I am unable to accept this contention. To (me, the expression 'stock' in Section 3 (2) (f) appears to mean a collection or store. When a crop of paddy is harvested, threshed and the harvesting workers' charges are paid, what the cultivator takes thereafter in his 'stock' of paddy within the meaning of Section 3 (2) (f) of the Act, and the Order made in relation thereto is therefore well within its purview. There is nothing in that sub-section to indicate that the stock means only a stock for sale.
26. Mr. Velayudhan Nair also contended that the Levy Order has gone beyond the parent Act, because Section 3 (2) (f) of the Essential Commodities Act contemplates compulsory purchase only from a "person holding in stock" and that a person can be said to hold a stock only if he has a store of goods beyond his requirements; but the Levy Order compels sale of paddy by every person who has cultivated more than two acres of land without any enquiry as to his requirements. It is difficult to appreciate counsel's assumption that the Act, in contemplating measures "for maintaining or Increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices", contemplates purchase of food-grains only from persons who hold stock above all their requirements. A law designed to meet famine conditions cannot afford to be so liberal. Its provisions must be capable of drastic application to meet all situations. The expression "any person holding in stock any essential commodity" must, in the context, comprehend all persons having possession of any appreciable quantity of the commo-|dity. In the nature and purpose of the Act it cannot be said that the Levy Order that directs sale of a relative excess of the production of a large scale cultivator, has outstepped the Act, I am in respectful agreement with the observation of Baman Nayar, J., made on behalf of Govindan Nair, J., also, in N. J. Thomas v. State of Kerala, 1966 Ker LT 931, that the expression 'holding in stock' does not necessarily postulate "holding in quantities in excess of one's own requirements". The contention advanced on the assumption that it does so has to be rejected.
27. Counsel stressed that the scale of levy notified under Clause 3 of the Levy Order pays no regard to the actual production of a cultivator and is therefore arbitrary and violative of the rule of equal protection in Article 14 of the Constitution. The scale of levy classifies the paddy lands in the several taluks of the State into three classes according to their average yield and, after exempting 2 acres cultivated by each cultivator, prescribes a scale of levy in 3 progressively rising slabs of next 3 acres, next 6 acres and larger areas. The scale of levy notified on July 1, 1966, has been modified from time to time -- seven times before 1968 -- which must have been on the basis of experience gained on its actual working. Even if this is classification according to taluks and the area cultivated by each cultivator is found hard for any individual farmer to comply, the Order provides by its Clause 6 for an objection by the cultivator, enquiry and decision thereon by a Taluk Supply Officer and an appeal, if needed, from his decision to the District Supply Officer and an overall access to the Government, the Commissioner or Director of Civil Supplies. Considering the enormousness of the range of operation of the Levy Order and the speed with which it has to be worked, ample justice has to be held met by the above provisions. As pointed out by the learned Judge the constitution of official staff to survey and inspect all paddy fields in the State to assess their actual yield would involve "an administrative machinery so stupendous and costly that the very object of the Order would be frustrated." It has to be kept in mind that Courts are not to sit tight on every governmental action. As observed by Holmes, J., in Bain Peanut Co, of Texas v. Pinson, (1930) 282 US 499 at p. 501 we have to remember that the machinery of government would not work if it were not allowed a little play in its joints. A judicial review of governmental action should not involve excessive timidity that would encourage arbitrariness in administration nor temerity that would paralyse the administration.
Counsel's reliance on State of Andhra Pradesh v. Nalla Raja Reddy, AIR 1967 SC 1468 and on K. T. Moopil Nayar v. State of Kerala, AIR 1961 SC 552 which related to land revenue, is, in my opinion, out of place because of the wide difference in the nature of the subject-matters Involved and in the purpose of the laws concerned. The scheme of the Levy Order taken along with its complement, the Declaration Order in so far as the latter affects cultivators, is to procure with the least hardship to the producers a fair proportion of the paddy produced in the State as soon as the harvest is over, and thereafter, if conditions of the time so require, to empower the Government, Commissioner, District Collector or District Supply Officer to get a declaration of the stock held by the producer expected to have in possession or control excessive paddy, and procure the entire excess over the just requirements of himself and his dependents, on immediate payment of price in both cases.
28. Mr. M. T. Paikaday contended that the classification of cultivators for purposes of levy on the basis of the area of land cultivated and not on the volume of foodgrains produced is irrational, and illustrated it by pointing out that a cultivator who produced only 50 quintals of paddy from 10 acres and a cultivator who produced 100 quintals from a like area by improved method of cultivation are to deliver the same quantity of paddy under the present Order. The basis of classification under the Order is not area alone but area and general productivity. For regulation by a general law only the general yield of a locality can be taken as the standard. For assessing general yield a taluk is taken as the unit by the Levy Order. It is too much to assume that the yield from lands similarly situated would vary so widely as counsel puts it. The assumption can only be that lands in a locality would normally yield fairly the same yield. Individual cultivators whose land did not produce as much as was expected can make their representations and get relief under Clause 6 of the Order. Clause 3-C also affords opportunity to every cultivator to inform the Village Officer 7 days before harvest, the extent of lands cultivated by him and the date of the harvest and the estimated yield thereof, and that affords the basis of further proceedings under the Levy Order. The contention that the lew is unrelated to the actual yield of the land does not then bear much merit.
29. Mr. Suryanarayana Iyer contended that the scale for levy prescribed by notification under the Levy Order is discriminatory in that it does not treat all cultivators in the same way and procure from them the same measure of paddy per acre of their cultivation. Article 14 of the Constitution does not prohibit reasonable classification and in my view the classification made under the Levy Orders is not unreasonable, All cultivators are given exemption from levy for the first 2 acres of cultivated land and all have to measure the same measure of paddy for every acre cultivated beyond 2 acres, the same measure though at a higher rate per every acre beyond 5 acres, and the same measure though at a still rate per acre above 10 acres. That the rates rise as the slabs rise cannot spelt any unreasonable discrimination within the meaning of Article 14 of the Constitution. The merit of equal protection of the laws does not lie in giving the same treatment to every member of the society, for all are not of the same condition; but in giving to those in want according to their needs and taking from those in plenty according to their stocks, I am in respectful agreement with the observations of Shearer. J., in Mohammad Anzar Hussain v. State of Bihar, AIR 1952 Pat 220 at p. 226:
"It cannot fairly, or indeed at all, be eaid that the object of the Ministry be making this Order was to benefit one sub-class of producers at the expense of any other sub-class. There is, clearly, nothing objectionable in the levy being a progressive one. that is in any comparatively large producer being required to; deliver to the State a proportionately greater quantity of his grain than a smaller producer."
The contention fails,
30. Mr. Paikaday contended that Clause 13 of the Levy Order which empowers the Government to exempt any class of persons from levy is an unbridled power capable of enormous mischiel and therefore arbitrary.
In Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 the Supreme Court observed:
"Mr. Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit. ...... The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a Way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief."
Further, as pointed out by the Supreme Court in AIR 1957 SC 896:
"The fact that power ...... is to be exercised by the State Government itself Is some safeguard against the abuse of this power."
31. The power to exempt from the operation of the Order any class of cultivators is given to the Government only and that has been specified, in the clause) itself, to be exercised only "in the public interest" "having regard to the conditions prevailing In any area". Meeting a similar contention the Supreme Court has held in Inder Singh v. State of Ra-jasthan, AIR 1957 SC 510 para 14 thus:-
"A more substantial contention is the one based on Section 15, which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lav down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Article 14. It is true that that section does not itself indicate the grounds on which exemption could be Granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs Section 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided."
This has been cited with approval and followed in P. J. Irani v. State of Madras, AIR 1961 SC 1731 para 13.
32. Counsel contended also that the power to reduce levy on objections by cultivators under Clause 6 (2) of the Order is left unguided to the discretion of the Taluk Supply Officers and is therefore likely to be made an instrument of unhealthy patronage bv certain officers. The Court cannot presume that the administration of a particular law would be done "with an evil eye and unequal hand." The jurisdiction to decide is conferred on a responsible officer, and the subjection of his decision to the supervision (under Clause 11) of the Government and the Commissioner and Director of Civil Supplies is a sufficient safeguard against abuses by individual officers. On the principle of the decision in Bagla's case, AIR 1954 SC 465, the contention has only to be overruled.
33. The result is that none of the grounds of attack on the validity of the Levy Order appears substantial. The Order is declared constitutional and valid.
II. The Kerala Paddy and Rice (Declaration & Requisitioning of Stocks) Order.
34. Mr. Krishna Iyer challenged Cl. 4 of the Declaration Order as arbitrary in that it allows officers even of the status bf a Panchayat Executive Officer to order a stock-holder to sell a specified quantity of paddy to a nominee of the Government without any enquiry as to the volume of the stock in his possession and his requirements for the maintenance of himself and his family. It has to be remembered that this Declaration Order has been made under Section 3 (2) (f) of the Essential Commodities Act along with the Levy Order. Rice (Purchase by (Levy) Order and the Rationing Order, as part of a scheme designed to secure "equitable distribution and availability at fair prices" of foodgrains to ease the food shortage in the country. Every stock-holder -- not being a cultivator who has sold the levy paddy and not been specially required by the Government, Commissioner (or Director) of Civil Supplies. District Collector or District Supply Officer to declare -- has to declare the quantity of paddy and rice in his possession or control to the Tahsildar or the Taluk Supply Officer. The Taluk Supply Officer has a record, under the Rationing Order, of the number of members in every house, taken from the head of the family. It cannot therefore be said that the officers concerned have no data for determining the stock and the number of members hi the stock-holder's family to assess their requirements of the foodgraln. As the information on the above matters is given by the stockholder himself, no enquiry is normally needed to fix the quantity of paddy to be requisitioned from him, unless the officer suspects suppression of facts in which case he has to make an enquiry in the matter -- the learned Advocate Gene-ral assures it is invariably done -- and take a decision. If in any particular ease, the stock-holder is not satisfied of his decision, an appeal is provided for under Clause 6; and the Government and the Commissioner (which term includes the Director also) of Civil Supplies have powers to revise any order of any officer, The complaint of arbitrariness therefor does not appear to be serious.
35. Counsel then contended that the 4th proviso to Clause 4 of the Declaration Order which allows only one month's ration to some stock-holders while six months' ration is allowed to others by the preceding provisos is unreasonably discriminatory. Section 3 (2) (f) empowers the Government to require by order "any person holding in stock any essential commodity to sell the whole or a specifed part of the stock" to the Government or its nominee for 'securing equitable distribution and availability at fair prices' for all. Though the power extends to the whole of the stock of paddy and rice in the possession or control of the stock-holder, the State Government has, in the impugned Order, made a concession to him to retain a part of it and has for that purpose classified the stock-holders according to their relation with the stock and their co-operation with the Government in the ad ministration of the Order. If the stock is of paddy produced in the stock-holder's lands and he has co-operated with the Government by filing his declaration aa required by the Order, he is allowed concession for the full period between two consecutive cultivations on his land -- the rate of such allowance being greater if he is the producer himself, and lesser if he is only a receiver of rent in paddy. If the stock is not of paddy of the stock-holder's land or if the stockholder has suppressed his stock, the con-cession allowed to him is only for a period of one month at the rate allowed to rent-receivers. Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. But that does not exclude a reasonable classification of persons, objects or transactions, for attaining certain objectives. If a classification is based on some real and substantial distinction, bearing a just and reasonable relation to the objects sought to be achieved, it is valid. (See Hari Krishna v. Union of India, AIR 1966 SC 619). It cannot be said that the classification made in Clause 4 of the impugned Order does not have a real relation to the object of the Order, The contention fails.
36. According to Mr. Krishna Iyer the very provision allowing concessions at different rates to producers, rent-receivers and non-producers among the stockholders, all of which are at a rate much above that given to other citizens and even to persons engaged in essential services like the Defence, is unreasonably discriminatory. This argument also faila to carry conviction. It is well known that India is short of foodgrains and has now to import large quantities from other countries to meet the requirements of her population. An incentive to cultivators of foodgratns to enhance production In the country cannot be said to be an unreasonable discrimination in the circumstances. Pertinent here is the observation of Shearer, J., in AIR 1952 Pat 220:
"In other countries in which the State has found it necessary to requisition part of the crops raised by substantial cultivators it has sometimes happened that so much has been taken that the cultivators have been discouraged from growing as much as they could in subsequent agricultural year."
I am not therefore prepared to hold that a larger concession shown to persons concerned in the production of paddy is Unrelated to the objects of the Order, one of which is "for maintaining the supplies of rice and paddy."
37. Counsel then challenged the "allowance of 1.5 quintals of paddy for every acre of land cultivated by him (the cultivator) with paddy" as arbitrary and unrelated to its purpose, viz., meeting the cultivation expenses. Harvest charges, the learned Advocate General states --and I agree with him -- do not come in the picture, as they are invariably given at the threshing ground and therefore do not form part of the stock in the possession of the producer. Mr. Velayudhan Nair also contended that the fixation of the same rate for the whole State, irrespective of the actual need in the locality, is arbitrary. His contention is that in certain areas, where paddy itself has to be measured as wages to workers, the requirement will be more, and in areas where labour is cheap and wagea are paid in cash, it would be far less than what is allowed by the Order.
Except the vague allegations at the hearing, no data have been placed before this Court to find any arbitrariness in this matter. No data are given by, counsel to show that 1.5 quintals of paddy per aere would not suffice for the seed and other requirements like food to agricultural labourers at work which have to be met with the grain. Nor am I convinced that there is large difference in labour conditions between one part of the State and another. I do not therefore find any prejudice to the producers caused by the fixation of an allowance of 1,5 quintals per acre of cultivated area.
38. Counsel contended that the fixa-tion of compensation for the rice and paddy requisitioned under the Order all the controlled price, which is denned in the Order itself as the maximum price' fixed under the Maximum Prices Orders, is a negation of the stock-holder's right to get a "just equivalent" for the grains taken from him. It is one thing to say that the Maximum Prices Orders need periodical revision, and another thing to say that payment of the maximum price fixed by law is not a just equivalent for a thing procured by the Government. In the light of the fact that on sales by private treaty the stock-holder is not entitled to a larger price. I cannot say that the provision to pay the maximum price is anyway unjust in the matter of payment of compensation within the meaning of Article 31 (2) of the Constitution. As observed by Shearer, J. in AIR 1952 Pat 220:
"It has to be remembered that the paddy which a producer is required to deliver is not confiscated. The producer is paid for it, and the difference between what he receives from the State and what he would have obtained if he had sold it at the controlled wholesale price is not very great. No doubt, it would be more convenient for him to sell it in the open market, and not to have to deal with minor officials. But too much ought not to be allowed to be made of such a grievance, and none at all of the grievance that he might, quite possibly, be able to obtain from some speculator more than the controlled wholesala price."
I am in respectful agreement with these observations.
39. It is then pointed out by counsel that Clause 3 (1) of the Order obliges a stock-holder to declare his stock, but there is no corresponding provision to oblige any officer to take the excess paddy in that stock; nor is any time fixed for making a demand in case the officer proposes to take such excess. It is urged that as private sales by stock-holders are not prohibited except when a demand under the Order has been made, the absence of a provision for an expeditious demand empowers officers to keep mum in the case of certain persons and to be vigilant in the case of others, and thereby to discriminate largely, tacitly allowing some to sell their stock in open market for prices far above the controlled price and at the same time compelling others to sell their stock to the State at controlled rates, and that such an arbitrary discretion is inconsistent with the equality of protection of law envisaged by Article 14 of the Constitution. I am afraid that the apprehension expressed by counsel is far-fetched. The preamble and various provisions of the Order indi-cate clearlv the intent and purpose of the law and they afford sufficient guidance to the action of the officers administering the law. It is hardly legitimate to presume that the administration of law entrusted with the executive officers will be exercised 'with an evil eye and an unequal hand'. There is ample power conceded by our Constitution to the Courts to correct the vagaries of any erring individual officer, I see no force in the contention.
40. As the Kerala. Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, is not shown to have offended any provision in the Constitution, the attack on its constitutional validity has to fail. The Order is declared valid.
III. The Kerala Paddy (Maximum Prices) Order, 1965 and the Kerala Rice (Maximum Prices) Order, 1965.
41. Mr. Krishna Iyer Impugned the Maximum Prices Orders as arbitrary le-gislations as the prices therein have beer) fixed in 1965 without a provision for revision from time to time and pointed out that the Orders made under conditions prevailing in 1965 have not been revised BO far, even though the cost of production has gone up on account of increase in labour charges and enhancement in price of manure. It is true that the price of paddy must be such as to leave a rea-eonable margin of profit to the producers above their cost of production. But no data have been placed before us to show that under the present conditions in the State the maximum prices fixed by the Maximum Prices Orders, 1965, do not Leave a fair margin of profit over the cost of production. In the judgment under appeal Gopalan Nambiyar, J., has observed:
"Nothing was made out to show that the Maximum Prices Orders 1965 are Unconstitutional or invalid."
I am in respectful agreement with that observation. Mr. Krishna Iyer cited the tables of living indexes given in 1965 L, L. J. and 1967 L. L. J. to show that the living indexes in all parts of the State have risen above 100 points in the interval 1965 to 1967 and consequently the labour charges have shot up considerably. But the extent of its impact on cost of production of paddy is not exhibited to us. As such we have no material to declare the maximum prices now in vogue to be unreal and arbitrary. The expression "the maximum price specified by the Government for the time being under the Kerala Paddy/Rice (Maximum Prices) Orders 1965" indicates categorically that the intention behind the Maximum Prices Orders is to revise the price from time to time as conditions may require. The learned Advocate General assures that the propriety of the maximum prices fixed by the Maximum Prices Orders is now being checked by the Government and it will be done from year to year hereafter. The assurance is recorded and in the light of that I do not feel it necessary to canvass further on the legality or propriety of the Maximum Prices Orders here.
42. In the result, I allow the Appeal (W. A. No, 30 of 1968) by the State, and dismiss the other appeals.
Before parting with the case, I would, in view of the statements made at the bar that several officers have misunderstood and misapplied the definition of a cultivator in the Levy Order and that has caused the filing of a multitude of writ petitions in this Court, tell the Government that it would ensure proper administration of the Order if its officers are instructed on the real import of that definition in the light of this Judgment
I make no order as to costs here.
Krishnamoorthy Iyer, J.
43. I agree with my learned brother Madha-van Nair, J.
44. The learned Single Judge has held that the definition of the term "cultivator" in the Kerala Rice and Paddy (Procurement by Levy) Order, 19G6, (hereinafter referred to as the Levy Order) is vague and does not lay down even the broad principles for a satisfactory administration of the provisions of the Levy Order and is productive of arbitrariness and is therefore violative of Article 14 of the Constitution and the last portion of Clause 7 of the Levy Order in so far as it places a ceiling on the market value of the price to be paid for the paddy acquired offends Article 31 (2) of the Constitution. The learned Judge took the view that since the definition of the term "cultivator" is so intimately connected with all the other provisions the Levy Order is liable to be struck down. The learned Judge also held that Clause 4 of the Ke-rala Paddy and Rice (Declaration and Requisitioning of Stocks) Order. 1966, (hereinafter referred to as the Requisitioning Order) to the extent it directs sale to the Government at the "controlled price" offends Article 31 (2) of the Constitution. But the challenge of the Ke-rala Paddy (Maximum Prices) Order, 1965, and the Kerala Rice (Maximum Prices) Order, 1965, was overruled by him. The Levy Order, the Requisitioning Order and the Maximum Prices Orders have been issued by the Kerala Government in exercise of the powers conferred by the Essential Commodities Act, 1955, (Central Act X of 1955) read with certain Orders issued by the Government of India. The Essential Commodities Act, 1955 (hereinafter referred to as the Act) is Intended to provide, in the interests of the General public, for the control of the production, supply and distribution of and trade and commerce, in Essential Commodities. Section 3 (1) thereof empowers the Central Government if it fa of opinion that it is necessary or expedient so to do for maintaining or Increasing supplies of any Essential Commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the Defence of India or the efficient conduct of military operations to pass orders providing for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. Section 3 (2) of the Act specifies the several matters in respect of which orders under Section 3 (1) of the Act can be made. Section 5 of the Act enables the Central Government by notified order to delegate the power to make orders under Section 3 of the Act in favour of a State Government and other persons. It is in pursuance to such delegation that the Kerala Government has passed the Levy Order and the Requisitioning Order which came into force on 1-7-1966 and the Maximum Prices Orders which came into force on 3-9-1965.
45. The Levy and the Requisitioning Orders have been passed by the State Government in exercise of the powers conferred by Section 3 (1) and (2) of the Act. read with the Order of the Government of India No. G. S. R. 906 dated 9th June, 1966, while the Maximum Prices Orders have been passed under Section 3 (1) and (2) (c) of the Act read with the Notification No. 203 (General) (14)743/64/Py.11 dated the 13th October, 1064 of the Government of India, Ministry of Food and Agriculture (Department of Food). Sections 3(1) and 3(2)(c) and (f) which are relevant are reproduced below;
"3 Power to control production, supply distribution etc. of essential commodities.
(1) If the Central Government is of opinion that it is necessary or expedient BO to do for maintaining or increasing supplies of anv essential commodity of for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the Defence of India or the efficient conduct of military operations it may by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by Sub-section (1). and order made thereunder may provide--
(c) for controlling the price at which any essential commodity may be bought or Bold;
(f) for requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Government or a State Gov ernment or to an officer or agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the orden
Neither before the learned Judge nor before us the Constitutional validity of either the Act as a whole or Sections 3 and 5 thereof separately was challenged The attack was confined only to the Levy Order, the Requisitioning Order and the Maximum Prices Orders on the around that they are violative of Articles 14, 19 (1) (f) and (g) and 31 (2) of the Constitution.
46. In Narendra Kumar's case, AIR 1960 SC 430 their Lordships of the Supreme Court pointed out that:
"when Section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate anv fundamental rights granted by the Constitution of India."
It is therefore clear that if any of the Orders offend Articles 14 or 19 (1) (f) and (g) or 31 (2) of the Constitution they cannot be sustained and it is necessary to consider the constitutional validity of the orders.
47. The first question to be considered is whether the Levy Order infringes Article 14 of the Constitution because of the definition of the term "cultivator" therein. Clause 2 (b) of the Levy Order defining "cultivator" reads:
" 'Cultivator' means a person who ac- tually cultivates any land with paddy;" I am in complete agreement with the views expressed by my learned brother Madhavan Nair, J., on the interpretation ' to be given to the definition clause But I wish to add further that if the defini tion of the term "cultivator" in the defi nition clause in the Levy Order is sus ceptible of the interpretation given to it by the learned Single Judge, the term used in Clauses 3-C and 4 to 8 of the Levy Order has to be understood in a restricted manner and not in the light of the definition clause. It is no doubt true that when in a statute words are defined, normally the said meaning should be at tributed to those words occurring in the several provisions of the Act. But all statutory definitions have to be read subject to the Qualification expressed in the definition clauses which create them. In V. F. & G. Insurance Co. Ltd. v. M/s. Fraser & Ross, AIR 1960 SC 971 their Lordships of the Supreme Court observ ed:
"It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive Inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subiect or context." An interpretation clause cannot therefore be used to interpret any of the Sections in the Act if there is anything in the Section itself which will be repugnant to the definition contained in the interpretation clause. Clause 2 of the Levy Order starts by saying: "In this order, unless the context otherwise requires". Clause 3 of the Levy Order directs that every cultivator shall sell to the Government paddy derived from lands cultivated by him in accordance with such scale as may be specified by the Government from time to time by notification in the Gazette; Clause 3-C directs that every cultivator holding more than two acres of land shall furnish information to the Village Officer of the Village in which the paddy lands are situated, in writing, regarding the harvest and shall harvest the crop only after obtaining the written permission of the Village Officer; Clause 4 provides for the issue of notice to the cultivator by the Officers mentioned therein specifying among other things the quantity of paddy to be sold by the cultivator; Clause 5 prescribes the mode of service of notica issued under Clause 4 on the cultivators Clause 6 prescribes for the filing of objections by the cultivator, the mode of disposal thereof and for the filing of an appeal by any person aggrieved by the unders of the Taluk Supply Officer; Cl. 7 says that after the service of notice under Clause 4 no cultivator shall sell or remove paddy from his stock without conforming to the provisions of Clause 4 and Clause 3 provides for the issue of a receipt for the purchase of paddv by the Government to the cultivator. It is nofi possible to construe the term "cultivator" occurring in the above clauses as meaning even a person who carries on the mere tilling work or other analogous cultivation operations without any control over the standing crops or without any power to deal with the paddy harvested from the land, The context in which the term "cultivator" is used in these clauses shows that the cultivator is the person who has got the right to con-duet the harvest and who has the right of disposal of the paddy harvested from the land. The term in the context cannot comprehend a person who merely puts his own muscular effort to the soil. It is not necessary that for a person to be a cultivator he should plough the field, irrigate it, harvest the crop and thresh it. It is sufficient if the land is cultivated under his supervision, he bears the risk of cultivation and gives directions regarding the disposal of the crops. As to whether a particluar person is a cultivator having a right to conduct the harvest and dispose of the paddy is a matter to be decided with reference to the facts of each case and in my view even if there Is any ambiguity in the interpretation clause as to the meaning of the term "cultivator" no such ambiguity exists in regard to the meaning that has to be attributed to the term "cultivator" in clauses 3, 3C and 4 to 8 of the Levy Order. Clause 3 of the Levy Order compels the cultivator to sell paddy derived from lands cultivated by him in accordance with the scales specified by the Government. According to the Schedule fixed by the Notification dated 3-8-1966 it is seen that persons who have cultivated paddy in an area up to and including 2 acres in the aggregate are exempted from selling any paddy to the State. Similarly clause 3C provides for a cultivator holding more than two acres of land to furnish the Information regarding the harvest. It Is therefore Impossible to conceive that the term "cultivator" used In these provisions relates even to a tiller having no sort of control over the paddy to be sold to the Government. Though the term "holding" in clause 3C of the Levy Order may not be sufficient to indicate the necessity of any proprietary interest in the land it is a pointer to show that the sale is contemplated by a person in whom the right to sell is vested. This view is confirmed by the provision of Section 3 (2) (f) of the Act which provides for requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock. It is not possible to conceive that the legislature has empowered the delegate to make laws for the acquisition of the paddy from those people who have absolutely no right to them to the detriment of the people having right over the same. The subordinate legislation evidenced by the Levy Order and the Requisition Order has normally to be interpreted only in consonance with the power delegated and these orders therefore cannot be expected to authorise the sale of the paddy by persons who are in mere custody but have no right of sale over the same. I am therefore in agreement with the view taken by my learned brother Madhavan Nair, J., that the finding of the learned Single Judge that the Levy Order offends Article 14 of the Constitution cannot stand.
48. I shall now pass on to consider the second question whether the latter part of Clause 7 of the Levy Order offends Article 31 (2) of the Constitution. Since in the course of the discussion it is necessary to refer to Section 3 (3) and 3 (3B) of the Act, I shall reproduce the same here:
"3 (3). Where any person sells any essential commodity in compliance with an order made with reference to Clause (f) of Sub-section (2), there shall be paid to him the price therefor as hereinafter provided:---
(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither Clause (a) nor Clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale,
(3B) Where any portion Is required by an order made with reference to Clause (f) of sub-section (2) to sell any grade or variety of foodgrains, edible oilseeds or edible oils to the Central Government or a State Government or to an officer or agent of such Government and either no notification in respect of such food-grains, edible oilseeds or edible oils has been issued under sub-section (3A) or my such notification having been issued has ceased to remain in force by efflux of time, then notwithstanding anything contained in sub-section (3), there shall be paid to that person such price for the foodgrains, edible oilseeds or edible oil as may be specified in that order having regard to--
(i) the controlled price, if any fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils; and
(ii) the price for such grade or variety of foodgrains, edible oilseeds or edible oils prevailing or likely to prevail during the post-harvest period in the area tc which that order applies.
Explanation.-- For the purpose of this sub-section, "post-harvest period" in relation to any area means a period of four months beginning from the last day of the fortnight during which harvesting operations normally commence."
49. Section 3 (2) (f) of the Act enables the Central Government or its delegate to require any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Government or a State Government or to an Officer or agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the order. When any person is required to sell any essential commodity in compliance with an order made with reference to Section 3 (2) ff) of the Act, Section 3 (3) of the Act provides that there shall be paid to him the price therefor as stated therein. Section 3 (3) of the Act is a general provision which will apply when a person holding any stock of essential commodity is required to sell by an order under Section 3 (2) (f) of the Act to any of the persons referred to therein. Section 3 (3A) of the Act enables the Central Government or its delegate in the circumstances mentioned in the provision to regulate the price at which the foodstuff shall be sold in any locality. This provision has been enacted to meet a specific situation namely the rise in prices and hoarding of foodstuff in any locality which have a tendency to bring about artificial scarcity and thereby prevent the free flow of foodstuff at reasonable prices. Section 3 (3A) is applicable only in the case of foodstuff and not to all essential commodities. Section 3 (3A) of the Act need not detain us further as it was agreed at the bar that it is not relevant for the purpose on hand.
50. Section 3 (SB) of the Act which was inserted by the Amending Act 25 of 1966 and which came into effect from 3-9-1966 deals with foodgrains, edible oilseeds or edible oils only. There was considerable discussion at the Bar about the applicability of Section 3 (3B) to the instant case, the learned Advocate-General contending that it was an application while the several counsel appearing for the writ petitioners maintaining that it will alone apply for the reason that Section 3 (3) is a general provision the operation of which is excluded in regard to foodgrains, edible oil_seeds and edible oils by the special provision Section 3 (3B) on the principle generalis specialibus non derogant. In my view the contention of the learned Advocate-General that Section 3 (3B) would apply only in the eventuality contemplated by the opening part of Section 3 (3A) of the Act cannot be accepted. There are two reasons which have persuaded us to take this view. The first is that the essential commodities in respect of which these two provisions operate are not the same. Section 3 (3A) deals with foodstuff in any locality while Section 3 (3B) deals with any grade or variety of foodgrains, edible oilseeds or edible oils. If Section. 3 (3B) is intended to cover all the foodstuff mentioned in Section 3 (3A) the difference in the wording in the two provisions would not be there. The second reason is that Section 3 (3A) contemplates the regulation of the price at which the foodstuff shall be sold in any locality to any of the persons mentioned in Section 3 (2) (f) of the Act. On the other hand, Section 3 (3B) provides for sales either to the Central Government or a State Government to an officer or agent of such Government. Section 3 (3B) cannot apply to the case of sale to such other persons or class of persons who may be specified in the order issued under Section 3 (2) (f) of the Act. In the appeals before us, the direction issued is to sell the paddy to the State Government. I am therefore of the view that to the cases before us Section 3 (3B) will alone apply and not Section 3 (3) of the Act. The purpose of Section 3 (3B) of the Act is to enable the Central Government or the State Government to fix the prices for procurement of substantial stocks of foodgrains, edible oilseeds and edible oils at prices specially fixed for release at reasonable prices particularly in areas hit by scarcity. The attempt of the Advocate-General to distinguish Sections 3 (3) and 3 (b) on the grounds that the former deals with general orders and the latter deals with individual orders cannot also stand.
51. The fixation of price in the latter part of Clause 7 of the Levy Order is for the paddv which the rent receiver or cultivator is required to sell to the Government or agent or the person as the case may be. The orders requiring the respondents to sell the paddy to the State Government therefore amount to acqui sition or requisition of paddy in which case the latter part of Clause 7 of the Levy Order will have to be tested in the light of Article 31 (2) of the Constitution. The principle is well settled that the law providing for compensation should be a just equivalent for the property acquired or requisitioned. Article 31 (2) of the Constitution provides that the law under which the acquisition or requisition is made should provide for compensation and should either fix the amount of the compensation or specify the principles on which and the manner in which the compensation is to be determined and given. In my view, the principle and the manner in which compensation is to be determined and given in respect of foodgrains, edible oilseeds and edible oils are provided for by Section 3 (3B) of the Act. The relevant part of the Section dealing with compensation says;
"...... notwithstanding anything contained in Sub-section (3), there shall be paid to that person such price for the foodgrains, edible oilseeds or edible oils as may be specified in that order having regard to--
(i) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils; and
(ii) the price for such grade or variety of foodgrains, edible oilseeds or edible oils prevailing or likely to prevail during the post-harvest period in the area to which that order applies." "Post-harvest period according to the Explanation to Section 3 (3B) of the Act in relation to any area means a period of four months beginning from the last day of the fortnight during which harvesting operations normally commence.
52. If so what has to be decided is only whether the latter portion of clause 7 amounts to a fixation of the compensation in accordance with the principles stated in Section 3 (3B). The Maximum Prices Orders of 1965 referred to in Clause 7 of the Levy Order are passed by the State Government under Section 3 (2) (c) of the Act fixing the maximum price at which paddy or rice can be bought or sold. The learned Single Judge has upheld the validity of the Maximum Prices Orders of 1965. An attempt was made before us on behalf of the respondents to challenge the Maximum Prices Order of 1965 on the ground of delegation outside permissible limits for the reason that the Act itself does not afford or formulate the guide lines for the fixation of the maximum price. The submission was that Section 3 (2) (c) of the Act is bad because of the conferment of an absolute and unbridled discretion, in the Central Government or its delegate in the matter of controlling prices. 1 do not think that I can countenance this contention. In the nature' of things it is impossible for any legislature to afford the guide lines in regard to the fixation of prices at which essential commodities which are varying in nature may be bought or sold in the different localities in the Union. The fixation of prices will have to depend on conditions which vary from State to State and the factors which have to be taken into account in fixing the prices will also be varying depending upon the nature of the commodity and the availability of the same and the legislature cannot be expected to take note of such details. An effective answer to the contention of the respondents is furnished by the decision of the Supreme Court in Union of India v. Bhanomal Gulsarimal Ltd., AIR 1960 SC 475, where their Lordships had to consider the question whether Clause 11B of the Iron and Steel (Control of Production and Distribution) Order, 1941, issued by the Central Government under the Essential Supplies (Temporary Powers) Act, 1946, violates Article 19 (1) (f) and (g) of the Constitution. Clause 11B empowers the controller to fix the maximum prices at which iron or steel may be sold (a) by a producer, (b) by Stock-holder including a Controller Stock-holder and (c) by any other person or class of persons. The question considered was whether Clause 11B is bad because of the absence of any guidance for fixation of prices in the legislative enactment itself. Their Lordships observed:
"It is obvious that by prescribing the maximum prices for the different categories of iron and steel, Clause 11B directly carries out the legislative object prescribed in Section 3 because the fixation of maximum prices would make stocks of iron and steel available for equitable distribution at fair prices. It is not difficult to appreciate how and why the Legislature must have thought that it would be inexpedient either to define or describe in detail all the relevant factors which have to be considered in fixing the fair price of an essential commodity from time to time. In prescribing a schedule of maximum prices the Controller has to take into account the position in respect of production of the commodities in question, the demand for the said commodities, the availability of the said commodities from foreign sources and the anticipated increase or decrease in the said supply or demand. Foreign prices for the said commodities may also be not irrelevant. Having regard to the fact that the decision about the maximum prices in respect of iron and steel would depend on a rational evaluation from time to time of all these varied factors the Legislature may well have thought that this problem should be left to be tackled by the delegate with enough freedom, the policy of the Legislature having been clearly indicated by Section 3 in that behalf. The object is equitable distribution of the commodity, and for achieving the object the delegate has to see that the said commodity is available in sufficient quantities to meet the demand from time to time at fair prices."
In Harishankar Bagla's case, AIR 1954 SC 465, Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948 issued by the Central Government under Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 was challenged on the ground that Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 amounts to delegation of legislative power outside the permissible limits. In overruling the contention their Lordships of the Supreme Court observed:
"...... the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy."
The above principles apply equally to Maximum Prices Orders of 1965 as the Maximum Prices for rice and paddy have been fixed after taking into account several factors which the legislature cannot be expected to exhaustively lay down, The plea therefore that the Maximum Prices Orders are vitiated by uncontrolled and excessive delegated legislative power cannot be accepted.
53. The contention that Maximum Prices Orders of 1965 violate the guarantee under Articles 19 (1) (f) and 19 (1) (g) of the Constitution cannot stand. The object of fixing the price under Section 3 (2) (c) of Act is to maintain the supplies of essential commodities at a fair price to the general public. It is obvious that the Maximum Prices Orders of 1965 have been made to ensure the availability of rice and paddy to the public at reasonable prices and it is necessary in the interests of general public. It will be seen that the fixation of maximum prices in the orders of 1965 is by the State Government itself and not by any officer of the State Government. The Levy Order was issued by the State Government before the addition of Section 3 (3B) in the Act by the Amending Act 25 of 1966. It was therefore contended on behalf of the respondents that there is no specification of the price in the Levy Order as required by Section 3 (3B) of the Act In my view there is sufficient specification of the price payable in the latter portion of Clause 7 of the Levy Order, if it otherwise satisfies the requirements of law. When the maximum price in respect of foodgrains, edible oilseeds or ediible oils has been fixed under Section 3 (2) (c) of the Act, there is nothing in the wording of Section 3 (3B) of the Act which prevents the State Government from prohibiting payment of compensation beyond the maximum price fixed, provided the maximum price is fixed with reference to the actual cost of production and a reasonable margin of profit to the cultivator. The object of Section 3 of the Act is to secure essential commodities at fair prices to the consumer and the object of the Levy Order and the Requisition Order is to secure even distribution of rice or paddy to the general public at fair prices. IE the fixation of maximum price under Section 3 (2) (c) of the Act, is fair both to the producer and to the consumer, it is difficult to accept the contention that it does not represent the just equivalent for the paddy or rice acquired or requisitioned. Whatever a producer or cultivator is able to get towards the price of rice or paddy over and above the maximum price, taking advantage of the scarcity of the foodgrains in the State can be only something more than the just equivalent for the article acquired. One of the methods to fix the fair price at which an article may be made available to the general public is to control the rate of profit at which a producer, wholesale dealer or a retail dealer will be entitled to sell the commodity. Without controlling the profit or the margin of profit it will not be possible to fix the price under Section 3 (2) (c) of the Act, for carrying out the object and purpose of the Act.
54. If it is found that the Maximum Prices Orders of 1965 are legally valid the further submission on behalf of the respondents was that the maximum prices fixed in 1965 are quite inadequate even for covering the cost of production, in view of the increase in the wages to be paid for the labourers, the cost of fertilisers etc. If the cultivators are compelled to give paddy either through the Levy Order or the Requisition Order, without getting adequate compensation It will be in violation of the terms of Section 3 (3B). Even if the contention of the learned Advocate-General that Section 3 (3) will apply, the position is the same. It was also pointed out on behalf of the respondents when the Government has specified the compensation payable for the paddy requisitioned during the latter part of the year 1967 on the basis of the maximum price fixed in 1965 the burden is upon the State to prove that even today the said price represents a fair price or a just equivalent from the point of view of the cultivator and In support of that contention reliance was made on the following observations in AIR 1965 SC 190.
"Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under Section 4 (1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under Section 4 (1) was issued, cannot be regarded as valid. It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation in some areas many times the original value of land in the area since April 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands."
The above observations which no doubt place the burden upon the State are made in the context of the case before their Lordships and cannot apply to this case. No question of any violation of Constitutional guarantee arises here in view of the principles for determining the compensation laid down by Sections 3 (3) and 3 (3B) of the Act. The Courts can take judicial notice of the facts that there has been a steady increase in the price of all commodities including essential commodities from 1965. That there has been an increase in the wages to be paid to the labourers and in the prices of fertilisers cannot be brushed aside. But even then the initial burden is on the respondents to show that the payment of compensation on the basis of the maximum prices fixed in 1965 is inadequate. Materials supplied in the cases before us are absolutely insufficient to come to that conclusion. The inadequacy of the compensation resulting from imposing the prices fixed in the Maximum Prices Orders in the Levy Order and in the Requisitioning Order is not an infringement of Article 31 (2) of the Constitution. Thev may be violative of Section 3 (3) or Section 3 (3B) of the Act. The latter portion of Clause 7 of the Levy Order itself provides for the fixation of maximum price from time to time. We cannot shut our eyes to the variation of prices of all the articles Including essential Commodities In the market due to several accounts (economic?) factors. There cannot therefore be any permanent fixation of price under Section 3 (2) (c) of the Act In respect of any essential commodity. If it is establish-ed that the maximum prices fixed in 1965 are not adequate to represent the just equivalent of paddy acquired from the second crop of 1967, it affects only the adequacy of compensation. The law which prescribes the principles for determining and fixing the compensation is Section 3 (3B) of the Act. That law does not offend Article 31 (2) of the Constitution, The Levy Order and the Requisition Order if at all can only be violative of Section 3 (3B) of the Act. In this view, no question of declaring the latter part of Clause 7 of the Levy Order contravening Article 31 (2) of the Constitution arises. Therefore the striking down of the latter part of Clause 7 of the Levy Order as violative of Article 31 (2) of the Constitution cannot stand.
Balakrishna Eradi, J.
55. I have had the advantage of perusing the judgments prepared by my learned brothers Madhavan Nair and Krishnamoor-thy Iyer, JJ., and I fully concur with the views expressed by them. I agree that the appeal -- W. A. 30 of 1968 filed by the State should be allowed upholding the validity of the impugned orders, viz., the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, the Kerala Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1966, the Kerala Paddy (Maximum Prices) Order, 1965 and the Kerala Rice (Maximum Prices) Order, 1965 and that the other appeals should be dismissed.