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Dhanraj Mills Ltd. Vs. B.K. Kocher and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 14 of 1951
Judge
Reported inAIR1951Bom132; (1951)53BOMLR393; ILR1952Bom335
ActsConstitution of India - Articles 14 and 226
AppellantDhanraj Mills Ltd.
RespondentB.K. Kocher and anr.
Appellant AdvocateD.N. Pritt and ;S.A. Desai, Advs.
Respondent AdvocateM.L. Maneksha, ;G.N. Joshi and ;M.P. Laud, Advs.
DispositionAppeal dismissed
Excerpt:
.....made an allegation, not very clearly, nor very explicitly, but still the suggestion is there that resp. pritt was that the expression 'may' in clause 14 should be read as 'must',that there was a statutory obligation upon the textile commissioner to allocate to the petitioner certain bails of cotton according to his requirements, & the textile commissioner having failed to discharge his statutory obligation, the court was entitled to issue a writ of mandamus against the textile commissioner ordering him to allocate certain bales of cotton to the petitioner. it is perfectly true that the textile commissioner has powers under this order to allocate cotton both of the indigenous variety & of foreign variety, but in fact the textile commissioner has not been exercising his powers under this..........the facts of this case, & therefore we shall very briefly deal with the argument advanced by mr. pritt. article 14 ensures to all persons residing in india equality before the law & equal protection of the laws within the territory of india, & there is a prohibition against the state preventing them from denying to any person equality before the law & the equal protection of the laws. it is not suggested by mr. pritt that the law enacted by the union govt. is not a law which gives equal protection to all the subjects or that the law as such unfairly discriminates between one section of the public & another or one class of subjects & another. the grievance of mr. pritt, if any, is that in the administration of the law in this particular case the allocation has been made in a manner.....
Judgment:

Chagla, C.J.

1. The petition from which this appeal arises is an entirely hopeless one & Mr. Pritt with all his ingenuity has tried to make it as presentable as possible. The petitioners are the Dhanraj Mills & they used in their mills imported foreign cotton of two varieties, Kampala & Tan-ganyika. A control has been imposed by the Govt. of India on the sale of cotton & mills can only receive cotton as permitted by the various Control Orders issued from time to time by the Govt. of India. The grievance made by the petitioner in his petition is that he was allocated by resp. I who is the Deputy Chief Controller, certain bales of cotton of the Kampala & Tanganyika varieties for the yeara 1948-1949. This allocation was made on the hasis of the consumption of the mills of this cotton for a period of three years ending with December 1942. The petitioner applied for allocation of these two varieties of cotton to resp. l also for the years 1949-1950 &, without going into figures, broadly the petitioner's contention is that he has been allocated cotton of the Kampala & Tanganyika varieties which is less than what he applied for & to which he was entitled. His further contention is that resp. 1 reserved for the use of the Govt. of India more cotton of the Tanganyika variety than of the Kampala variety. As it happens, the petitioner used more cotton of the Tanganyika variety than of the Kampala variety and, therefore, his share of the Tanganyika cotton was less than what he applied for. His further grievance is that even with regard to the Tanganyika variety he has received less than he was entitled to according to his quota, even on the assumption that the reservation made of the Tanganyika variety by resp. 1 was a proper reservation. He has also made an allegation, not very clearly, nor very explicitly, but still the suggestion is there that resp. 1 has been advised in making the allocation by a committee called the Indian Cotton Import Advisory Commitee & the majority of the members of this Committee are consumers of Kampala cotton & therefore, it was to their advantage that there should be more reservation of the Tanganyika variety rather than of the Kampala variety. On these facts the petitioner asked for a writ in the nature of mandamus against the resps. & in the alternative any appropriate order or direction under Art, 226 of the Constitution.

2. Mr. Pritt, who opened the appeal before us, argued it on the assumption that all the facts pleaded in the petition had been established. We asked him to argue as if he was arguing on a demurrer because we felt that it would be difficult for Mr. Pritt to substantiate his case that even if all the facts alleged by him had been established he was entitled to any relief on this petition. In opening the appeal Mr. Pritt drew our attention to the Cotten Control Order of 1949 issued by the Central Govt. in exercise of the powers conferred upon it by Section 3, Essential Supplies (Temporary Powers) Act of 1946, & he relied on Clause 14 of that Order which provides that the Textile Commissioner may, with a view to securing a proper distribution of cotton or with a view to securing compliance with this Order, direct any person holding a stock of cotton or any class of such persons to sell to such person or persons such quantities of such description of cotton as the Textile Commissioner may specify, & the rather seemingly attractive argument advanced by Mr. Pritt was that the expression 'may' in Clause 14 should be read as 'must', that there was a statutory obligation upon the Textile Commissioner to allocate to the petitioner certain bails of cotton according to his requirements, & the Textile Commissioner having failed to discharge his statutory obligation, the Court was entitled to issue a writ of mandamus against the Textile Commissioner ordering him to allocate certain bales of cotton to the petitioner. In the alternative Mr. Pritt contended that even if no obligation could be spelt out in the language used in Clause 14, there was an obligation upon the Textile Commissioner to act in conformity with Article 14 of the Constitution, and inasmuch as the allocation made by him constituted an unfair discrimination against the petitioner, his order was contrary to Article 14, the petitioner's fundamental right was violated, & he was entitled to come to this Court.

3. We were preparing ourselves to answer these ingenious arguments, when Mr. Maneksha drew our attention to the fact that this particular Order on which Mr. Pritt relied had no application whatever to the facts set out in the petition or the grievance made by the petitioner in his petition. It seems that the allocation that has been made from time to time of East African cotton in favour of the petitioner has not been done under Clause 14 of this order at all. It is perfectly true that the Textile Commissioner has powers under this Order to allocate cotton both of the indigenous variety & of foreign variety, but in fact the Textile Commissioner has not been exercising his powers under this clause in reapect of imported cotton. With regard to imported cotton, the control is exercised under a different piece of legislation altogether. We have on the statute book Act XVIII (18) of 1947, & Section 3 of that Act provides that the Central Govt. may, by order published in the official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases & subject to such exceptions, if any, as may be made by or under the Order & among other things import & export of goods of any specified description; & exercising their power under this section the Central Govt. have promulgated an Order which is known as Import Trade Control Order, on 6-3-1948, & this Order provides that any officer issuing a license under Clauses (viii) to (xiv) of the Notification of the Govt. of India dated 1-7-1948, may issue the same subject to one or more of the conditions stated below, & one of the conditions is that goods covered by the license shall not be disposed of or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it. Turning to the Notification of 1-7-1943, that was a Notification issued under the Defence of India Rules & that prohibited the bringing into British India by sea, land or air from any place outside India of any goods of the description specified in the schedule in that Order & when we turn to the schedule we find that raw cotton was one of the articles which was so prohibited. It is reap. 1 who, acting under this Import Trade Control Order of 6-3-1918, issues licenses to various persons in Bombay permitting them to import raw cotton from Bast Africa & one of the conditions that he imposes, upon the persons to whom he issues licenses is that they will not dispose of or otherwise deal with the cotton imported by them without his written permission. He, therefore, directs these license holders to sell the cotton imported by them to various mills specified by him. Having ascertained from the petitioner what his requirements were from year to year & taking into consideration the requirements of different mills in Bombay, resp. 1 then calls upon various license holders to sell cotton to different mills. Therefore, what the petitioner chooses to call an allocation under Clause 14, Cotton Control Order, is in reality not an allocation made by the Textile Commissioner at all, but is the privilege given to him to purchase from the license holders cotton permitted by resp. 1. If these be the true facts & if this be the law which is applicable to the facts of the case, it is difficult to understand how the petitioner can make any grievance of the fact that resp. 1 has not asked a particular license holder to sell a particular quantity of cotton to the petitioner. It is not suggested that there is any statutory obligation upon resp. 1 to insist upon any particular license-holder to sell any particular quantity of cotton to the petitioner. Not only is there no statutory obligation upon resp. 1, but there is not even any right in the petitioner to insist upcn obtaining any particular quantity from resp. 1 or from anyone else. In this connection it may be desirable to see the form of the bond which the petitioner has to sign when he makes an application for the allocation of certain quantity of cotton which he has to state as his requirement. In this form of the bond he agrees & undertakes to accept any allotment of African cotton that may be made to him up to the quantity specified by the petitioner. Therefore, the obligation upon the petitioner is to accept any quantity given to him by resp. 1. Only the top limit is laid down which is his requirement. There is no obligation upon him to accept anything more than what he has himself asked for. But there is no bottom limit laid down in the allocation which resp. 1 might make in his favour. He must accept whatever is allotted to him. Therefore this letter of undertaking signed by the petitioner makes it clear that it is left entirely to the discretion of resp. 1 to allot to him such cotton as he thinks proper. This letter also clearly shows that there is no right in the petitioner to insist upon obtaining the full quota as asked for by him when he made his application setting out his requirement, 4. With regard to Article 14 of the Constitution, although Mr. Pritt has argued it on the basis that the Cotton Control Order applies, it would not be fair to him not to deal with this point because we have now found that some other piece of legislation applies to the facts of this case, & therefore we shall very briefly deal with the argument advanced by Mr. Pritt. Article 14 ensures to all persons residing in India equality before the law & equal protection of the laws within the territory of India, & there is a prohibition against the State preventing them from denying to any person equality before the law & the equal protection of the laws. It is not suggested by Mr. Pritt that the law enacted by the Union Govt. is not a law which gives equal protection to all the subjects or that the law as such unfairly discriminates between one section of the public & another or one class of subjects & another. The grievance of Mr. Pritt, if any, is that in the administration of the law in this particular case the allocation has been made in a manner which has unfairly discriminated against his client. This raises a rather important question as to whether Article 14 as it is enacted applies to administrative orders. There can be no doubt that if a law is so passed as to make discrimination or deny its application equally to all subjects, such a law can be challenged under Article 226 as offending against Article 14 of the Constitution. But the matter is not free from doubt when we come to executive or administrative orders. Can a sub ject say that although the law is perfectly valid it does not offend against Article 14 of the Constitu-tion, but an officer in administering the law is acting contrary to the provisions or the principle underlying Article 14 Mr. Pritt saya that if discretion is vested in an officer by a statute, in the exercise of that discretion he must act in conformity with Article 14. If an officer is given the discretion to issue licenses, in issuing licenses he cannot discriminate between one section of the public & another. If he does so, his order is liable to be challenged under Article 226.

5. Now a clear distinction must be borne in mind between the law & the administration of the law. If the law itself permits discrimination, even though the law may appear to be fair & undiscriminatory, the Court may interfere & say we are more concerned with how the law actually works rather than how it appears in black & white in the statute book. One may even have a case where in exercising the discretion vested in officers under the statute the State may, as a policy of ad-ministration, require its officers to exercise the discretion unfairly & unequally. We can imagine that even in such a case the Court may interfere & say that although administrative orders are being challenged, the administrative orders suggest behind them a policy of the state of discrimination. Bat to our mind the position is different when a subject comes to the Court & challenges a specific act of an individual officer as being in contravention of Article 14. The officer in acting contrary to Article 14 is really acting contrary to the law & not in conformity with or in consonance with the law. When the law invests an offioer with a discretion, the law assumes that the officer will exercise the discretion bona fide & not dishonestly, arbitrarily or capriciously, & if he exercises the discretion dishonestly, arbitrarily or capriciously, he is really going contrary to the law. In such a case the subject comes to Court not for protection under Article 14, but for protection against the dishonest, arbitrary or capricious act of the officer. The Court is not powerless to give the subject protection against a dishonest officer, but that protection cannot be sought under Article 14 or under Article 226. We are only concerned in this case with the question as to whether the petitioner has a right to maintain a petition against, what he chooses to call, a dishonest exercise of his discretion by an officer. There is no suggestion here that the State as a policy has laid down that licenses should be issued or quotas should be allotted not in a fair manner but in order to benefit a particular class of citizens. As we said and as we repeat, the only charge, and even that is not properly or fully laid, is against resp. 1 that he in exercising the discretion to allot has been swayed by certain unfair considerations.

6. The authorities on which Mr. Pritt has re-lied do not support his contention that a specific mala fide act of an offioer can be challenged by a petition in support of the fundamental right guaranteed to the citizen under Article 14. He has relied on two or three American cases, & the leading case on which he has laid considerable emphasis is the case of Yick Wo v. Hopkins (1886) 118 N. S 220. When we look at that case we find that what was challenged in that case was not any administrative or executive order, but an ordinance passed by the City of San Francisco which required all persons desiring to establish laundries in frame houses to obtain the consent of certain municipal officials, & it was found that in giving consent the municipal officials had acted unfairly & that the policy cf the administration was directed exclusively against a particular class of persons, viz. the Chinese. On those facts the Supreme Court held that though a law be fair on its face & impartial in appearance, yet, if it is administered by public authority with an evil eye & unequal hand, so as practically to make illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Therefore, here we have a case where although the law superficially seemed to be fair & equal, in its actual administration it was found to be unfair and unequal. The other case is the case of Tarrance v. State of Florida (1902) 188 U. S. 572. That was a case where a coloured person went in appeal to the Supreme Court against his conviction for murder alleging that negroes were discriminated against in the selection of grand & petit jurors, & the Supreme Court took the view that if that fact had been established the negroes would have been denied the protection of equality of law under the provision of the American Constitution corresponding to Article 14. It is true that in a sense what was challenged here was not any law but the administrative action on the part of the County Commissioners in the State of Florida who prevented negroes from being empannelled as jurors. But the case is clearly distinguishable because it was not on a petition for a writ that the aggrieved party went to the Supreme Court. The aggrieved party went to the Supreme Court in appeal against a conviction alleging that he did not get a fair trial because his right to have a jury in which negroes were represented was denied to him, & even here the judgment of the Supreme Court suggests that before the appellant could succeed the Court would have to be satisfied that it was the policy of the State of Florida to prevent negroes from acting on the jury.

7. Therefore, as the petitioner has failed to show either that the law with regard to control of imported cotton is discriminatory or does not give equal protection to all the subjects, his petition must fail to the extent that he attempts to come under Article 14 of the Constitution. The petition must equally fail even if he succeeds in estab-lishing that resp. 1, in the orders that he has issued, has acted mala fide or capriciously or arbitrarily. There is no suggestion that in doing so resp. 1 was carrying out any, policy of the administration or there came any orders from the State that he should act mala fide, arbitrarily or capriciously. The very fact that the allegation ia made that he acted mala fide, clearly suggests that the petitioner realised that his conduct was not in conformity with the law under which he was acting. When one acts mala fide, obviously one acts contrary to the manner in which the law expects one to act. We have not thought it necessary to go into the facts of this petition because the view taken by us is that even if the facts alleged in the petition had been established by the petitioner, he would not be entitled to the relief he seeks on the petition. That was the view taken by the learned Judge below, Tendolkar J. who dismissed the petition & we are in agreement with the decision he came to.

8. The result is appeal fails & must be dismissed with costs.


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