Calcutta High Court
Sambhu Nath Ghosal vs State Of West Bengal And Anr. on 2 March, 1966
Equivalent citations: AIR1966CAL577, 1966CRILJ1248, AIR 1966 CALCUTTA 577
ORDER B.N. Banerjee, J.
1. The Petitioner says that he is a paddy cultivator, owns about 63 bighas of paddy land and the average produce from his land varies from 500 maunds to 450 maunds (186.62 Quintals to 168 Quintals) of paddy. He is the holder of a Large Producers' License, under the West Bengal Rice and Paddv Control Order, 1961.
2. The petitioner feels aggrieved by an order made by the respondent Additional District Magistrate calling upon him to sell a quantity of 109 Quintals of fine paddy, out of stock in his hands, to Messrs. Annapurna Rice Mill, at Kalna. The order reads as follows:
"Whereas it is necessary to maintain supplies of fine paddy and to secure the availability thereof at statutory prices:
Now, therefore, in exercise of the powers conferred by Clause (f) of Sub-section (2) of Section 3 of the Essential Commodities Act, 1955, (Act 10 of 1955), read with the Ministry of Food and Agriculture, Government of India Order No. G.S.R. 34, dated the 6th January, 1959, I, the Additional District Magistrate of Burdwan, make this order requiring you, Sri Sambhu Nath Ghosal (Large Producer) Sijna to sell to M/s Annapurna Rice Mill, Kalna within 7 days and deliver to Sri Bam Abatar Misra, who is authorised to take such delivery, 109 quintals (one hundred and nine quintals only) of fine paddy out of the stocks held by you this 6th day of July, 1964 and I further direct that the price of fine paddy to be sold and delivered by you will be paid to you by M/s Annapurna Rice Mill Kalna in due course in accordance with the provision of Sub-section (3) of Section 3 of the aforesaid Act."
The petitioner says that at the time of making the sale order, certain deductions, under the West Bengal Rice and Paddy Control Order of 1964, were allowed for his own consumption, for feeding agricultural labour and for payment of wages in kind to labourers. The deductions allowed, according to the petitioner, were wholly inadequate for his requirement of food and detrimental to his interest as a cultivator. He feels that in making the order the respondent Additional District Magistrate acted in excess of his jurisdiction and as such the order should be condemned. With the above grievances, the petitioner moved this Court, under Article 226 of the Constitution, praying for the quashing of the order and for a mandate upon the respondents restraining them from giving effect thereto and obtained this Rule.
3. Mr. Nilmoni Goswami, learned Advocate for the petitioner, made an one-point attack against the order for sale of paddy. He argued that the power under Section 3(2)(f) of the Essential Commodities Act 1955, namely, the power "requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock to such person or class of persons and in such circumstances as may be specified in the order, "ordinarily exercisable by the Central Government, may be delegated by the Central Government, under Section 5 of the Act, to a State Government or to officers subordinate to a State Government. Such a delegation of authority, Mr. Goswami contended, was made by the Central Government, in the Ministry of Food and Agriculture, on January 6, 1959, by G.S.R. 34, which reads as follows:
"Dept. of Food.
ORDER New Delhi, the 6th Jan. 1959. G.S.R. 34--In exercise of the powers conferred by Section 5 of the Ess. Comm. Act, 1955 (10 of 1955), the Central Govt. hereby directs that the powers conferred on it by Sub-section (1) of Section 3 of the said Act to make orders to provide for the matters specified in Clause (f), and for the matters specified in Clauses (h), (i) and (j) in so far as they relate to Clause (f) of Sub-section (2) of the said Section 3 in relation to stocks of rice and paddy held in the State of West Bengal, shall be exercisable also by the officers in that State mentioned below within the respective jurisdiction indicated against them, namely:
1. Director of Food..... .For the entire State
2. All District Magistrates within their
3. All Deputy Commissioners respective jurisdiction"
Mr. Goswami argued that there was no power delegated to Additional District Magistrates and the impugned order made by an Additional District Magistrate should not be sustained. Mr. Goswami further argued that Section 10(2) of the Code of Criminal Procedure, which authorises an Additional District Magistrate to exercise all the powers of a District Magistrate under the Code or under "any other law for the time being in force", would not authorise an Additional District Magistrate to exercise the powers of a District Magistrate under a special law, by which the District Magistrate alone was authorised to do certain acts and discharge certain functions. He therefore submitted that notification No. 876 G.A., dated February 22, 1963, notwithstanding, the respondent Additional District Magistrate would not have the jurisdiction to wield powers under the Essential Commoditites Act or Rules thereunder made. The notification is set out below:
Calcutta Gazette Part I Dated 7th March, 1963 Notification no. 876 G. A. -- 22nd February, 1963.-
In exercise of the powers conferred by Sub-section (2) of Section 10 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Governor is pleased to appoint Shri P.V. Shenoi, I.A.S., Controller of Civil Defence, Darjeeling, to act as Additional District Magistrate, Burdwan, until further orders and to direct that he shall have during the period he is so employed, all the powers of a District Magistrate under the said Code and under all other laws in force in that district."
IN support of his second contention Mr. Goswami relied on a judgment of the Supreme Court in Ajaib Singh v. Gurbachan Singh AIR 1965 SC 1619 and also on a judgment of the Nagpur High Court in Prabhulal Ramlal v. Emperor, AIR 1944 Nag 84.
4. The case before the Supreme Court related to an order of detention, under Rule 30(1) of the Defence of India Rules, 1962, made by an Additional District Magistrate. In that context Wanchoo. J. observed as follows;
''We have come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under Rule 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer. Section 3(1) of the Act gives power to the Central Government by notification in the Official Gazette to make such rules as appear to it necessary or expethent for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community. Section 3(2) then provides for the making of rules for various purposes without prejudice to the generality of the powers conferred by Section 8(1), and the 15th Clause thereof provides for detention. The relevant portion of that Clause necessary for our purposes reads thus:
15. Notwithstanding anything in any other law for the time being in force -
1. the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.
It would be seen that Section 3(2)(15)(i) which is the source of power to detain according to the Rules to be framed thereunder itself lays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate.
Then we come to Section 40(2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it. This power of delegation, however, must be read harmoniously with Section 3(2)(15)(i). and, therefore, under Section 40(2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate. Rule 30 of the Rules then provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person. That power of the State Government can, however, be delegated under Section 40(2) to any officer subordinate to it. But as we have already indicated the power of delegation must be read harmoniously with Section 3(2)(15)(i) and, therefore, the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate."
Referring to the question whether an Additional District Magistrate may wield the power of detention, by virtue of the provisions of Section 10(2) of the Code of Criminal Procedure, his Lordship observed:
"The next question is whether an Additional District Magistrate can be said to be of the same rank as the District Magistrate. We are clearly of the opinion that an Additional District Magistrate is below the rank of a District Magistrate and cannot be said to be of the same rank as tie District Magistrate. We may in this connection refer to Section 10(2) of the Code which shows that an Additional District Magistrate need not necessarily be conferred with all the powers of the District Magistrate under the Code or any other law for the time being in force. He can be an Additional District Magistrate though he may be exercising only some of the powers of the District Magistrate. Clearly, therefore, an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further Sub-section (3) of Section 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. Therefore, even if the Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in Section 10(3) of the Code. Besides there is only one District Magistrate in a district and all other Magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be below him in rank. As Section 3(2)(15)(i) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank of a District Magistrate."
The case before the Nagpur High Court also related to an order of detention, made by an Additional District Magistrate, under the Defence of India Rules 1939. Niyogi, J. (sitting with Vivian Bose, J.) observed:
"The terms of Rule 26, Defence of India Rules, are clear to show that it is primarily the Provincial Government that is empowered to make an order under that section. Any other officer or authority exercising power under that rule has to derive his power from the Provincial Government's order made under Section 2(5), Defence of India Act. That is the sole channel provided by that Act for the delegation of the Provincial Government's powers to any officer or authority subordinate to it. The Defence of India Act and Rules made thereunder are special laws enacted to meet an emergency and they confer extra-ordinary and drastic powers on the executive whose acts performed under those powers are not liable to be challenged in any Court of law. Rule 26 confers very wide, almost autocratic, powers on the Provincial Government, and precisely for that reason it is imperative that they must be exercised with a due sense of responsibility and with circumspection by an officer or an authority of a certain status and experience. When the Provincial Government delegates its powers to an officer or authority subordinate to it, it is not unreasonable to assume that it fully considers the fitness of the delegate before passing an order under Section 2(5), Defence of India Act. The law, which confers these extensive and absolute powers on the Provincial Government, itself provides the channel through which the powers must pass to the delegate. The object of Section 10(2), Criminal P. C., is only to relieve the pressure of work falling on the shoulders of the District Magistrate in the course of the performance of his normal duties under the Criminal Procedure Code or any other ordinary law. The Additional District Magistrate who is invested with powers of a District Magistrate, does not thereby attain the status of the. District Magistrate as Sub-section (8) of Section 10, Criminal P. C., itself makes clear. The fact that the Additional District Magistrate may have all the powers of the District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the district who can be a District Magistrate. Any act done or order passed by the Additional District Magistrate exercising the powers of the District Magistrate under the Code of Criminal Procedure or any other ordinary law is liable to review in superior Courts, whereas the powers conferred by Section 2(5), Defence of India Act, on the District Magistrate are such that his action under it is, on its merits, not even justiciable. The District Magistrate is an authority in the district who must be contradistinguished from all those officers who are not District Magistrates notwithstanding that there may be an Additional District Magistrate exercising the powers of the District Magistrate. The Provincial Government, when it conferred the power on the District Magistrate under Section 2(5), Defence of India Act, conferred the power on the Officer actually holding the office of the District Magistrate and on no one else. Section 10(2), Criminal P. C., and Section 2(5), Defence of India Act, are quite distinct in their scope and application. The former is concerned with the powers of the District Magistrate under the law and the latter with the powers of the Provincial Government. Section 10(2) cannot be called in aid to confer the powers of the Provincial Government under Rule 26, Defence of India Rules, on any officer subordinate to it. It was observed by Lopes L. J. in (1887) 18 Q.B.D. 704 at p. 708 that in the case of an Act which creates a new jurisdiction, a new procedure, new forms and new remethes, the procedure, forms and remethes there prescribed must be followed. The principle underlying these observations applies fully in this case. Section 10(2), Criminal P.C., which authorises Additional District Magistrate to exercise all the powers of a District Magistrate under "any other law", clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's powers under some special law which enacted that the District Magistrate alone and no other person or authority should be empowered to do a certain act.
**** When we turn to Rule 26(1) we find that only the Central and Provincial Governments are invested with authority to discharge the special functions which the Act creates. Had the matter rested there, it is obvious that no one else would have been able to act. But Section 2(5) of the Act empowers the Provincial Government to delegate its powers under the Act and rules to any officer or authority it chooses outside a small restricted class.
Now, it is evident that this delegation must be a delegation under the Act and for the purposes of the Act. If therefore the delegation is to the District Magistrate, the District Magistrate alone can act. He becomes persona designate and all other persons and authorities are necessarily excluded."
Keeping in view the reasonings in the two Judgments mentioned above, I find that the powers under Essential Commodities Act are exercisable by Central Government, (vide Section 3(1) of the Act). Section 5 of the Act, however, speaks of delegation of powers in the following language;
"The Central Government may, by notified order, direct that the power to make orders under Section 3 shall, in relation to such matters and subject to such conditions, if any as may be specified in the direction, be exercisable also by:
(a) such officer or authority subordinate to the Central Government, or (b) such State Government or such Officer or authority subordinate to a State Government,
as may be specified in the direction." The powers under the Essential Commodities Act being very large and comprehensive, in nature, it is necessary that such powers should be exercised with a due sense of responsibility and with circumspection by the Government itself or by a Government Officer of some status and responsibility. This is the reason why Section 5 speaks of specified officers. Such a specification was made by G.S.R. 34, which I have set out before. That specification did not include Additional District Magistrates. An Additional District Magistrate, subordinate in rank to a District Magistrate, cannot therefore exercise the powers of a District Magistrate, in the capacity of the latter as a specified officer exercising authority delegated to him by the Central Government. Notwithstanding anything contained in Section 10 (2) of the Code of Criminal Procedure, an Additional District Magistrate does not automatically become invested with powers, which the Central Government may elect to delegate only to specified class of officers and to none else.
5. For the reasons stated above, I hold that the respondent Additional District Magistrate exceeded his jurisdiction in making the impugned order. I therefore, quash the order and restrain the respondents from giving effect thereto. Let a Mandate issue accordingly. This Rule is made absolute without any order as to costs. The petitioner is relieved from all undertakings given to this Court.
Civil Revision No. 832(W) of 1964.
6. The points raised in this Rule are the same as in Civil Revision Case No. 831(W) of 1964. For the same reasons as stated in Civil Revision Case No. 881(W) of 1964, I make this Rule also absolute without any order as to costs.
7. The petitioner is relieved from all undertakings given to this Court.
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