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TMI Blog1980 (4) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ench be constituted in the month of January, 1980. [In pursuance of the abovesaid order of reference the case came on for hearing before the Full Bench.] K.P. Bhandari with Sarup Chand Goel and Ravi Kapur and Pawan Kumar Bansal, for the petitioner. Naubat Singh, Senior Deputy Advocate-General (Haryana), for the respondents. JUDGMENT The judgment of the Court was delivered by PREM CHAND JAIN, J.-The petitioners are millers of rice and registered dealers under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the Sales Tax Act), and the Central Sales Tax Act, 1956, and are licensees under the Haryana Foodgrain Dealers Licensing and Price Control Order, 1978. Under the Punjab Rice Procurement (Levy) Order, 1958, as then applicable to the State of Haryana, and now under the Haryana Rice Procurement (Levy) Order, 1979 (hereinafter referred to as the 1979 Levy Order), every licensed dealer or licensed miller is required to deliver to the Government a certain percentage of rice produced or manufactured by him at a fixed price. The petitioner had been supplying rice to the State Government through the Director of Food and Supplies, Haryana. Clause 3 of the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome arrangements about the place and manner of delivery of wheat, and the payment of 'controlled price', the operation of clause 3 does not on that account become contractual." Thereafter, a matter arising out of the Punjab Rice Procurement (Levy) Order came up for consideration before a Bench of this Court in Food Corporation of India v. State of Punjab[1976] 38 S.T.C. 144; I.L.R. (1976) 2 P. H. 587. On consideration of the entire case law and on the basis of the judgment in the Chittar Mal's case(1), the Bench observed thus: "The facts of the case in hand are exactly similar to those of Chittar Mal's case(1) and the ratio of that decision squarely applies to the facts of the present case. Applying the law laid down in Chittar Mal's case(1), I have no alternative but to hold that there was no contract between the millers or the dealers and the State of Punjab or its officers pursuant to which rice was sold with the result that the transaction was not a taxable event and respondents Nos. 2 and 3 could not be made liable to purchase tax by the Assessing Authority." Thereafter, another judgment of the Supreme Court in Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer[1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the Control Order do not, in our opinion, militate against the position that, eventually, the parties must be deemed to have completed the transactions under an agreement by which one party bound itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consented to accept the goods on the terms and conditions mentioned in the permit or the order of allotment issued in its favour by the concerned authority. Offer and acceptance need not always be in an elementary form, nor indeed does the Law of Contract or of Sale of Goods require that consent to a contract must be express. It is commonplace that offer and acceptance can be spelt out from the conduct of the parties which covers not only their acts but omissions as well. Indeed, on occasions, silence can be more eloquent than eloquence itself. Just as correspondence between the parties can constitute or disclose an offer and acceptance, so can their conduct. This is because, law does not require offer and acceptance to conform to any set pattern or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice being the maximum price which may lawfully be charged. Paragraph 8 of the Order points in the same direction by providing that no dealer who has a stock of cement in his possession shall refuse to sell the same 'at a price not exceeding the notified price', leaving it open to him to charge a lesser price, which the allottee would be only too agreeable to pay. Paragraph 8 further provides that the dealer shall deliver the cement 'within a reasonable time' after the payment of price. Evidently, within the bounds of reasonableness, it would be open to the parties to fix the time of delivery. Paragraph 8A which confers on the allottee the right to ask for weighment of goods also shows that he may reject the goods on the ground that they are short in weight just as indeed, he would have the undoubted right to reject them on the ground that they are not of the requisite quality. The circumstance that in these areas, though minimal, the parties to the transactions have the freedom to bargain militates against the view that the transactions are not consensual." It appears that on the basis of the aforesaid judgment of the Supreme Court, the Government of Haryana issued instructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1976] 38 S.T.C. 144; I.L.R. (1976) 2 P. H. 587. was decided. After giving our thoughtful consideration to the entire matter, we find that the Control Orders which were the subject-matter of decision in the Vishnu Agencies' case(2) were different from the levy orders under which the State Government sets up a machinery for compulsory acquisition of the essential commodities. Further, the judgment of the Supreme Court in the Chittar Mal's case(3), which was relied upon for deciding the case by the Division Bench of this Court in the Food Corporation of India's case(1), holds the field and does not stand impliedly overruled as would be evident from the observations of their Lordships of the Supreme Court in the Vishnu Agencies' case(2), Which read as under: "In Chittar Mal Narain Das v. Commissioner of Sales Tax[1970] 26 S.T.C. 344 (S.C.); A.I.R. 1970 S.C. 2000., the appellants who were dealers in foodgrains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959. The High Court held in a reference made to it under the Sales Tax Act that the transaction amounted to a sale and was exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.C. 344 at 348 (S.C.); A.I.R. 1970 S.C. 2000 at 2004; [1971] 1 S.C.R. 671 at 677. can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer. Viewed from this angle, we cannot endorse the court's criticism of the Full Bench decision of the Allahabad High Court in Commissioner, Sales Tax, U.P. v. Ram Bilas Ram Gopal[1969] 24 S.T.C. 508 (F.B.); A.I.R. 1970 All. 518 (F.B)., which held while construing clause 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a statute. Looking at the scheme of the U.P. Wheat Procurement Order, particularly clause 3 thereof, this court in Chittar Mal(2) seems to have concluded that the transaction was, in truth and substance, in the nature of compulsory acquisition, with no real freedom to bargain in any area. Shah, J., expressed the court's interpretation of clause 3 in no uncertain terms by saying that 'it did not envisage any consensual arrangement'." From the aforesaid observations, it is clear that the Control Orders under which compulsory acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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