TMI Blog1997 (11) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... r engaged in the production, or in business of buying or selling, of any essential commodity, to sell the whole or a specified part of the quantity held in stock or produced or received by him to officer or agent of such Government or to a Corporation owned or controlled by such Government as may be specified in the order. Sub-section (3A) of Section 3 provides that 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 the seller as the price therefore- (a) Where the price can consistently with the controlled price of the food stuffs, 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 with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification. Sub-section (3b) of Section 3 provides:- Where any person is required, by an order made with reference to clause (f) of sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: NOTIFICATION In exercise of the power conferred by Clause (c) of Sub-section (2) of Section 3 of the Essential Commodities Act, 1995 (General Act 10 of 1995) read with the order of the Government of India, Ministry of Agriculture (Department of Food), New Delhi, G.S.R. 316 (E) dated the 20th June, 1972 and all other powers hereunto enabling and with the prior concurrence of the Government of India, the Governor of Andhra Pradesh hereby rescinds with immediate effect, the Andhra Pradesh Rice (Procurement Ex-Mill Prices) Order, 1974 issue in G.O. MS. No. 1001, Food and Agriculture (CS.V) Department, dated the 6th November, 1974 and published at pages 1-13 of the rules Supplement to Part II Extra-ordinary of the Andhra Pradesh Gazette, No. 38 dated the 7th November, 1974. Provided that such recession shall not affect: (a) the previous operation of the said Order of any thing duly done or supported thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the said Order; or (c) any penalty, forfeiture or punishment incurred in respect of any offences committed against the said Order; (d) any investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promulgated laying down the levy price. Otherwise, there will be a vacuum. The rice millers will have to supply rice compulsorily to FCI without knowing what is the procurement price. The intention behind the Order clearly was to continue the procurement price fixed by the Order to all subsequent crops until a fresh Order was issued. Assuming that the contention of the State Government is correct what will be the price payable for the crop year 1976-77 commencing on and from 7.9.1976?. A fresh order of procurement was published in the official Gazette only on 24.2.1997. Under the provisions of Section 3 of the Essential Commodities Act, any person who sells any essential commodity in compliance of an order passed with reference to clause (f) of Sub-section 2 of Section 3 will have to be paid - (a) an agreed price which is consistent with the controlled price, if any, fixed under Section 3 or (b) in the absence of any agreement, the price, if any, or when neither (a) or (b) applies, the price, if any, or when neither (a) or (b) applies, the price calculated with reference to the average prevalent market price of the locality during the period of three months immediately precedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e crop year 1975-76, in terms of the aforesaid order, the appellant millers supplied rice to the FCI and were paid at the rate prescribed in the Order/Memorandum dated 24.9.1975. Not only the procurement price but also the quantum of levy of rice was determined by this Order/Memorandum. On 24.2.1977, the Food and Agriculture Department of Andhra Pradesh Government, issued a Gazette Notification to the following effect:- In exercise of the power conferred by Clause (c) of sub-section (2) of Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1995) read with the order of the Government of India, Ministry of Agriculture (Department of Food), New Delhi in G.S.R.No. 316(e) dated the 20th June, 1972 and with the prior concurrence of the Government of India, the Governor of Andhra Pradesh hereby makes the following amendments to the Andhra Pradesh Rice (Procurement Ex-Mill Prices) Order, 1975 issued in G.O. Ms. No. 901, Food and Agrl. at page 8 of the Rules supplement of Part I Extra- ordinary of the Andhra Pradesh Gazette No.53 dated the 9th October 1975 as subsequently amended. 2. The amendment hereby made shall be deemed to have come into force on 7th September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t now to say that this Memorandum is of no legal effect because it was not notified in the Official Gazette and was not addressed to any of the rice millers but was merely an inter- departmental communication. the Memorandum categorically stated pending issue of the amendment, the District Collectors are instructed to take action to collect levy from millers and dealers not exceeding the percentage mentioned above for the crop year 1976-77 . District Collectors acted on the basis of this Memorandum. The millers were compelled to sell rice to FCI. in the background of all these facts, it is not open to the State Government to contend that the Memorandum was not notified and therefore, no right or obligation flowed from that Memorandum. If the Memorandum was required to be notified, the Government cannot take advantage of its failure to notify it. Having acted on the basis of the Unnotified Memorandum and having collected rice compulsorily from the millers on the strength of this Memorandum and also having paid the millers at the rate fixed by the Memorandum, the Government cannot be heard to say that the Memorandum is of no legal effect and the payment was made under mistake of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective only when it took away or impaired any vested right acquired under existing laws or created new obligations or imposed a new duty or attached a new disability in respect to transactions or considerations already past. Reliance was placed upon Craies on Statute Law, 6th Edition p.386. it was held that by notification dated 24.2.1977, the Government did not reduce in any way the price legally payable to the appellants because there was no such price in existence nor did it alter in any way the legal rights of the appellants with regard to their sales for the second year. We are unable to follow how the High court could come to the conclusion that the vested right of the appellants had not been disturbed in any way by the subordinate legislation. Rice has been sold under a procurement order and a right to be paid in terms of that order had accrued to the seller as soon as sale of rice was effected. As a matter of fact, the FCI did pay the appellants the price for the rice purchased. If a portion of the price paid by the FCI is taken away, the appellants will be prejudicially affected. They not only had acquired a vested right to be paid but actually received payment for the ..... 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