J.R Walker vs Kshitish Chandra Biswas

Harries, C.J.—This is an appeal from a judgment and order of S. R. Das Gupta, J., dated August 30, 1950, by which the Appellant was directed to forbear from enforcing an order made by him on April 21, 1950. The Appellant is an officer known as the Jute Controller for the State of West Bengal. He was appointed under sec. 3 of the West Bengal Jute Goods (Control) Act, 1950.

Purporting to act under powers given by sec. 4 of that Act the Appellant issued an order on February 4, 1950, requiring the Respondent to sell certain goods to him as Controller. On April 21, 1950, the Appellant issued a further order directing the Respondent to sell the goods in question to him at the rate of Rs. 41-13-0 per hundred yards plus 21/2 per cent, commission.

The Respondent contended that the Jute Controller had no power under the West Bengal Jute Goods (Control) Act to call upon anybody to sell goods to him and, therefore, asked the Court to issue a mandamus on the Appellant compelling him to refrain from enforcing the order directing the Respondent to sell.

S. R. Das Gupta, J., held that the Jute Controller had no power under this Act to call upon anyone to sell jute goods to himself either as Jute Controller or personally. As the order made was not warranted by the Act he directed the Appellant to refrain from enforcing the said order.

It was also contended before S. R. Das Gupta, J., that sec. 4 of the Act was ultra. vires as contrary to Art. 31 of the Constitution. But on that point the learned Judge held in favour of the Appellant.

The learned Judge also found that the order was mala fide.

The learned Advocate-General on behalf of the Appellant has contended that the order made was an order which the Jute Controller was entitled to make under the provisions of sec. 4 of the Act. The learned Advocate-General, however, conceded that if this point was held against him no other question arose in this appeal.

As I have stated earlier, sec. 3 of the West Bengal Jute Goods (Control) Act, 1950, empowers the State Government to appoint a person to be the Jute Controller for the State. The Jute Controller is then given powers to control the production, supply and distribution of jute goods and these powers are set out in sec. 4. It will be convenient to set out the terms of this section in extenso:

(1) Subject to the control of the State Government, the Controller, so far as it appears to him to be necessary or expedient for regulating, maintaining or increasing the production and supply of jute goods or for regulating the distribution thereof, may, by order in writing,-

(a) require any person holding stocks of jute goods to sell the whole or a specified part thereof at such prices and to such persons or to the Central Government or to the State Government or in such circumstance? as may be specified in the order;

(b) require any person engaged in the production of jute goods to comply with such directions as may be given in the order as to the type, quality and quantity of jute goods to be produced or delivered by him from time to time.

(2) Any person to whom an order is issued under sub-sec. (1) shall comply with it notwithstanding any contract to which he is a party.

Sec. 5 makes contravention of any order : :t offence and sec. 7 provides that no Court shall take cognisance of any offence punishable under the Act except on a report in writing of the fact constituting such offence made by the Controller.

The short point which has to be decided is whether the Controller could direct a person holding stocks of jute goods to sell those stocks to himself as Controller under the powers given in sec. 4 (1) (a) of the Act.

The Controller by that sub-section may require any person holding stocks of jute to sell the whole or part of such stocks to such persons as may be specified in the order, and it is suggested by the learned Advocate-General that the phrase ''"such persons" is wide enough to include the Controller himself.

Obviously the phrase ''"any person" which appears earlier in the sub-section must mean a person other than the Jute Controller. The Jute Controller may "require any person holding stocks of jute goods to sell," etc. I think it is clear that he could not issue an order on himself to sell and that it was clearly the intention of the legislature that the words "any person" should mean any person other than the Jute Controller. If the phrase "any person'''' could include the Jute Controller then very serious difficulties, would arise by reason of secs. 5 and 7 of the Act. If he contravened his order he would be guilty under sec. 5, but no Court could take cognizance of such an offence except on a report in writing by the offender himself. It seems clear, therefore, that the phrase "any person" must be construed as any person other than the Jute Controller.

It seems to me also clear that the phrase "to such persons" must mean persons other than the Jute Controller. If it is held that the phrase "such persons" includes the Jute Controller then the Jute Controller could direct persons to sell not only to himself as Jute Controller but to himself in his private capacity and 1 think it could never have been the intention of the legislature to permit that state of affairs.

The learned Advocate-General suggested that a sale to the Jute Controller as Jute Controller would amount really to a sale to Government because the Jute Controller is the officer appointed by Government to give effect to the policy of Government relating to the production and distribution of jute goods. It is to be observed that sec. 4 (1) of the Act expressly provides that the Jute Controller can call upon persons to sell to either the Central Government or the State Government. II a sale to himself as Jute Controller would be tantamount to a sale to Government, it appears to me to be quite unnecessary to construe the phrase "such persons" as wide enough to include the Jute Controller himself. The result which the Jute Controller would have in mind by directing a sale to himself would be effected by a sale to the State Government. The fact that a sale to the State Government is expressly mentioned would suggest that it was never the intention of the legislature that what would be in effect a sale to the State Government could be effected by the Jute Controller directing a sale to himself.

I do not think that any Court would construe sec. 4(1) (a) in such a way as would enable an officer appointed by a State to control production and distribution to direct sales to himself in a personal capacity. To place such a construction might enable an officer appointed by the State to take advantage of his position.

It appears to me that the construction placed on sec. 4 (1) (a) of the Act by S. R. Das Gupta, J., was right. The intention of the legislature clearly was that the Jute Controller could direct holders of jute to sell to any persons named by the Jute Controller or to sell to either the Central or the State Government, if either of the two (Governments wished to hold these goods for later distribution. It seems clear that provision was made for the State acquiring the goods in order to dispose of them later and that being so, it seems to me that it would never have been the intention to give the Jute Controller power to direct sales to himself merely to effect the same purpose.

Holding as we do that the Jute Controllers order was not warranted by the Act, then no further point arises. We wish to make it clear that we have not considered the allegation that the order was mala fide and we express no opinion upon that matter.

The appeal is disposed of on the point of the powers of the Jute Controller. The result, therefore, is that the appeal fails and I would dismiss it with costs. Certified for two Counsel.

Banerjee, J.

I agree.