Raichur District Rice Millers Association vs State of Karnataka

Shivashankar Bhat, J.—Petitioners question the target fixed by the State Government to collect the levy rice during the year 1991-92 kariff season, in respect of Raichur District. There are also other prayers which need not be repeated here.

By virtue of Section 3 of the Essential Commodities Act, Karnataka Procurement (Levy) Order 1984 was promulgated; (herein referred to as ''the Levy Order''). Relevant Clauses of this Levy Order are:

"3. MILLER TO SELL RiCE: (1) Every Miller shall sell everyday beginning with the date of ''commencement of this order to the State Government or the purchase agent at the purchase price fifty per cent of the total quantity of rice conforming to specifications obtained by milling paddy by him in his Rice Mill everyday.

(2) The rice required to be sold to the State Government or the purchase agent under Sub-clause (1) shall be delivered by the miller to the purchase agent or to such other persons as may be authorised by the State Government or the purchase agent to take such delivery.

(3) No stock of rice shall be removed from the mill premises without delivery of the rice relating to such stock in accordance with Sub-clause (2):

(4) Dealer to sell rice: - (1) Every dealer shall sell to the State Government or to the purchase agent at the purchase price fifty per cent of the total quantity of -

(a) each variety of rice conforming to specifications got milled by him every day out of his stocks of paddy, and

(b) each variety of rice conforming to specifications purchased or otherwise acquired by him for the purpose of sale from persons other than millers or dealers;

(2) No stock of rice got milled by the dealer shall be removed from the mill premises without delivery of the rice relating to such stocks in accordance with Sub-clause (1) (a);

Provided that nothing contained in Clause (3) and in this Clause shall apply to the rice obtained for personal consumption by a cultivator from the stocks of paddy grown by him or by an agricultural labourer out of the stocks of paddy earned by him as wages subject to the following conditions, namely,

(i) that the cultivator shall not mill more than five quintals of paddy and the agricultural labourer shall not mill more than one quintal of paddy at ''a time in a month; and

(ii) that he shall produce from the Village Accountant and when there is no resident Village Accountant, from the concerned Revenue Inspector, a certificate that the paddy to be milled is for his personal consumption. Such a certificate shall be handed over to the miller.

(3) Every dealer shall get the paddy purchased or otherwise acquired by him milled into rice before the close of the marketing season.

POWER TO ISSUE DIRECTIONS : (1) The Enforcement Officer may from time to time by general or special order, to any miller or dealer directions to secure compliance of the provisions of this order.

(2) Every miller or dealer to whom a direction is issued shall comply with such directions."

At the time of arguments, we were told that the purchase of levy stated in Clause (3) has been reduced to 33 1/3 per cent from 50 per cent.

The above makes it clear that the liability of the miller is to deliver 1/3 of the rice stock held by the miller, obtained by the milling of paddy by him in his rice mill every day. The Levy Order nowhere fixes the minimum nor the maximum quantity of rice to be delivered by the miller during any particular season. The rice to be sold to the State Government, by the miller, is entirely in proportion to the rice obtained by the miller by milling the paddy.

However, under the impugned Government Order dated 2.11,1991, the Director of Food and Civil Supplies issued a Memorandum fixing the target for collection of rice in respect of each of the 17 Districts in the State. According to the petitioners the fixation of target is unwarranted, because it is contrary to the Levy Order. In case, this target is enforced against the millers meticulously, the millers would suffer not only loss but also, are compelled to undergo harassment at the hands of the enforcing Officers. It is asserted that to achieve this target, the Deputy Commissioner of the District, in his turn, fixed target for each taluk and the Tahsildar of the taluk on his part, fixed the target for each miller. Thus, the effect of this target fixed at the State level is to compel each miller to deliver the quantity of rice to the Government as Levy rice which is fixed to reach the target, irrespective of the proportions fixed under Clause (3) of the Levy Order.

Theoretically, there is nothing illegal in having a target to achieve administrative efficiency. The obvious purpose of the target fixed by the Director of Food Supplies should have been to indicate to the authorities broadly, the quantity of rice to be collected in each of the Districts. But, the learned Government Pleader contended that, purpose of collecting levy rice is to enable the Government to distribute it through fair price shops and this is possible only by purchasing sufficient quantity of rice from the millers and the traders; further, Central Government has been fixing the target for each State and this target had to be reached by the State Government while executing the provisions of the Levy Order; the learned Government Pleader finds nothing illegal in enforcing the target by proportionately dividing the quantity amongst the millers depending upon their previous year''s performance. Analogy of Sales Tax and Income Tax Acts was suggested wherein advance tax collection has been permitted.

There is no dispute before us that in the process of collecting the levy rice to reach the target, the Officers have been insisting that each miller is bound to sell to the State Government, the particular quantity of rice attributed to the miller by the Tahsildar.

We do not think it is possible to sustain the State Government''s action taken to reach its targets, in the manner it has been doing as above. The Levy Order is quite clear and specific as to the quantity of rice to be sold by the millers; it depends entirely on the quantum of rice milled by a miller out of which 33 1/3 per cent is to be sold to the State Government.

Though the State Government tries to take shelter under Clause (10) of the Levy Order, said Clause in no way authorises the State Government to nullify the prescription made under Clause (3). Clause (10) empowers the issuance of instructions by the Enforcement Officer to the miller "to secure compliance" with the provisions of the Order. The instructions to be issued cannot travel beyond the scope of the Levy Order. They have to be, in turn, entirely intra vires the key provisions of the Levy Order.

By insisting that every miller should sell a particular quantity of I rice to the State Government irrespective of the terms of Clause (3) of the Levy Order, the State Government has been superseding the provisions of Clause (3) and has replaced it by its own fiat. This is not permissible.

Levy Order is a statutory order, made under the provisions of Section 3 of the Essential Commodities Act; the procedure for making an order u/s 3 of the said Act is quite different; from issuing an executive direction. The said Act provides for the prior concurrence of the Central Government to any Order made u/s 3 of the aforesaid Act. State Government is entirely bound to respect and follow the Statutory Order issued u/s 3 of the Essential Commodities Act. Even the fixation of target for the District of Raichur appears to be arbitrary. Along with its Statement of Objections, State Government has filed a few Annexures giving particulars as to the number of Rice Millers, acreage of land growing paddy, the quantity of rice-production estimated etc. in each District of the State. Details regarding a few of the Districts furnished in Annexure-R4 are as follows:-

District

No. of Mills

Area of cultivation in hectares

Estimated rice Production

Target fixed in metric tonne

Raichur

110

80,000

206750

45000

Shimoga

476

1,50,310

360760

32500

Mysore

1473

82,000

246000

15000

Mandya

1075

60,000

180000

11000

[The acreage and estimate stated above is as per the Agricultural Department, which the learned Government Pleader commended before us for acceptance for the purpose of deciding this case.]

Whether it is the number of Rice Mills, or the acreage of rice producing land or the estimated rice production there is no reasonable proportionality at all in the target fixed for Raichur District. In fact, if this target is to be proportionately distributed amongst the millers in the District, the burden on each of the miller will be disproportionately higher compared to the target fixed regarding other millers.

The unfairness is writ large in the target fixed for Raichur District.

There is another minor point raised in the Writ Petition. In some of the Districts transports of paddy are required to furnish a declaration to the Enforcement Officers, this declaration is actually in the form of an intimation as explained by Rama Jois, J., in the order made in K.B.VAGISH AND ORS. v. STATE OF KARNATAKA AND ORS., W.P. Nos. 17784 to 17786 of 1988 DD 16.12.1988.

In other Decision rendered subsequently in NANJUNDESWARA TRADING COMPANY v. STATE OF KARNATAKA AND ORS. 1990(1) KLJ 101 a slightly different view has expressed by a learned single Judge, resulting in confusion to the Officers as to the implementation of the earlier directions, according to the petitioners.

Para-5 of the order in Vagish''s case reads as follows: "For the reasons, I make the following order:

(i) The respondents are directed to insist information to be furnished only in the form extracted in this order and shall not insist on any transport certificate under the signature of the Tahsildar or any other officer.

(ii) The petitioner shall prepare the report in three sets and furnish one to the Tahsildar under acknowledgment and send and another to the office of the Deputy Commissioner and the third with the acknowledgment shall be kept in the vehicle in which the paddy is being transported."

We do not find any direct conflict between the two Decisions. At any rate, the directions issued in Vagish case, is only to effectuate the implementation of the Levy Order. Nowhere, a prior condition is imposed for transportation of paddy; the transporter is required to furnish information to the Tahsildar that a particular quantity of paddy is being transported to keep track of the movement of the paddy in the State. The information to be furnished is in the following terms:

To The Deputy Commissioner/Tahsildar, ..... District/Taluka.

Sir,

..... Quintals of paddy was purchased/acquired by me (particulars give below) on date ..... from the seller/sellers (particulars given below). The above stock of paddy is. being transported through lorry bearing No. ..... to rice mill situated in.....village.....taluk.....district on.....AM. PM.

Purchaser:

Name of the purchaser.....

Name of Rice Mill/Firm .....

F.C.LNo. .....

Address .....

Seller/Sellers

Name.....

Address .....

Yours sincerely,

Copy to Deputy Commissioner, ..... District to which paddy is transported."

We do not think that any transporter can make a grievance of this innocent information to be furnished to the authorities. This nowhere requires a prior permission of the authorities for transporting paddy and therefore, this requirement cannot be read as a restriction-, imposed on the free movement of paddy in the State.

Learned Government Pleader contended that if the target cannot be enforced, realisation of the requisite quantity of rice under Levy Order is not possible and it is also not possible to prevent evasion of the law by the millers, in case a miller clandestinely removes rice without complying with Clause (3) of Levy Order; according to the learned Government Pleader, it is impractical to keep a watch over the rice stock held by every miller.

Difficulty involved in implementing a Law, is no ground to apply the provisions of the Law in a manner different from what the Law means. Law has to be implemented in the manner laid down by it. Law enforcers cannot nullify the provisions of the very Law sought to be enforced in the guise of effectively implementing the Law. Here, insistence of a target, irrespective of the quantity of rice milted by a miller, is clearly opposed to Clause (3) of the Levy Order.

While enforcing any Law, the authorities should remember that any order or direction issued by a superior officer if illegal and not authorised by Law need not be obeyed, if such an order or direction would adversely affect the rights of any person. In a claim against an executive officer for compensation, it is no valid defence to the executive officer that he simply obeyed the directions issued by his superior. In Palthadi Venkappa Rai Vs. Devamma, the Madras High Court held:

"That the mere order of a superior officer which is not in accordance with law or supported by lawful order, would not afford justification is also the view taken by the American Courts as could be seen from the view taken by Mclean J., in Tracy v. Swartwout; 10 Pet 80 (C) (page 280, Introduction to Administration Law, 2nd Edn.), where the learned Judge in posing the question whether the instructions given by the Secretary of the Treasury, when not given in accordance with the law, afford a justification to the Collector of the Customs, or exonerate him from the payment of adequate damages for an injury resulting from his illegal acts took the view that these instructions were no justification to the defendant and that the illegal acts, though they be done in good faith would not exempt him giving compensatory damages.

The legal position both under the English Law, which is also the view of the American Laws is that a mere reliance on an order of a superior officer cannot exempt an officer like the second defendant from liability in respect of a tort committed as in the present case, so long as the commission of the act is not supported by any lawful order, on which he could rely.

In this case an attempt has been made to bring himself under the protection afforded u/s 16(1) of the Essential Supplies (Temporary Powers) Act, ''XXIV'' of 1946'', which provides, that no suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made u/s 3. Sub-clause (1) of Section 3 of the Act provides that the Central Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing for their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein.

As observed by the learned District Judge no order issued by the Tahsildar has been produced and in the absence of such an order it could not be presumed that the appellant must be deemed to have acted in pursuance of an order issued u/s 3 of the act, and in the absence of such an order, there is no scope for the application of Section 16(1) of the Act."

These observations are repeated here, only to highlight the rights vested in the citizens of this Country, which are to be respected by the executive and that the rights of citizens should have precedence over the objectives sought to be achieved by the executive while exercising the executive power.

Consequently, we hold that,-

(1) The respondents are not entitled to insist on compliance by the Millers to sell rice to the State on the basis of the target fixed by the second respondent in the order dated 2.11.1991. The liability of each Miller to sell levy rice is only to the extent and in the manner stated in Clause (3) of the Levy Order.

(2) The target fixed for the Raichur District is on the face of it unfair and is liable to be ignored.

(3) The requirement to furnish information of the paddy being transported upheld in Vagish''s case is in no way illegal.

(4) Respondents shall enforce the Levy Order in the light of the above declaration of the law.

Writ Petition is accordingly allowed. Rule made absolute.