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Arvapalli Balakrishnaiah Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1239 of 1961
Judge
Reported inAIR1963AP339
ActsIron and Steel (Control) Order, 1956 - Sections 2 and 2(1); Essential Commodities Act, 1955 - Sections 3; Constitution of India - Article 226
AppellantArvapalli Balakrishnaiah
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateP. Babulu Reddy, Adv.
Respondent Advocate3rd Govt. Pleader and ;Haridatta Reddy, Adv.
DispositionPetition allowed
Excerpt:
.....court - high court observed power of appointment of registered stock holder vest only in iron and steel controller - state government bound to forward all applications to iron and steel controller - interference with fundamental right of petitioner - held, order issued to respondent to forward application of petitioner to iron and steel controller. - - it is alleged in the present petition that, though the collector of the district and the second respondent (the director of controlled commodities, andhra pradesh) had recommended the case of the petitioner-firm for appointment, the state government (first respondent) had recommended sri venkateswara iron and steel syndicate, khammameth (3rd respondent) for appointment as registered stock-holder, and have forwarded to the iron and..........for appointment, obviously under the authority of the state government. in the action taken by the stategovernment and the second respondent is implicit a representation to the applicant that theirapplications would be dealt with on the merits by the appointing authority whosoever it be. havingthus received the applications, it is not now open to the respondents to turn round and say 'you have not applied to the iron and steel controller. if you wish, you can do so now'. such an attitude seems to us by no means justified.14. it is suggested by the learned government pleader that since the filing of the writ petition, the petitioner had actually approached the iron and steel controller, calcutta, requesting him to call for his application from the state government. it is further argued.....
Judgment:

Seshachalapati, J.

1. This is a petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents 1 and to forward the petitioner's application for registration as a stock holder at Khammameth, to the Iron and Steel Controller, Calcutta.

2. The facts relevant for the disposal of this petition are briefly these: The petitioner is a partner of a firm doing business at Khammameth under the name and style 'of Arvapalli Balakrish-niah and Ega. Ramulu, Kammameth. The firm deals and; has been dealing for a number of years is various, categories of Iron and Steel commodities. On 30-12-1960 the second respondent (the Director of Controlled Commodities, Andhra Pradesh) issued a notification, calling for applications for appointment as Registered Stock-holders of from and Steel for sale at several places in the State including, Khammameth. The notification was published in the newspapers. It reads as follows.

'GOVERNMENT OF ANDHRA PRADESH.

Applications are invited from businessmen and firms of sound' financial status, preferably from these hiving some experience in Iron and Steel trader and with a solvency of Rs. Two Lakhs for appointment of Registered Stockists and Controlled serap stockists at the following places: -

Place of DistrictNo, of vacancies of Registered StockistsNo. of vacancies of controlled scrapstockists.

1.Nizamabad.1.2.Mahaboobnagar.1.3.Kamsgundam (Karimnagar Dist).1.4.Adilabad.1.5.Khammameth.1.6.Kothagudem (Kham-mam Dist). 1.7.Akkanapat (Medak Dist).1.8.Bhimavaram (West Go-dawari Dist).1.9,Elaru (West Godavari Dist.).1.1.10.Amantapur.1.11. Kavali (Nellore Dist).12. Hyderabad & Secun-derabad.2.13,Chittor.-1.14Guddapah.1.1.15Guntar.1.16Bhongir (Nalgonda Dist).1.

1.

12.

7.

2. Application forms for the above appoint-meets giving full details of the certificates to be attached can be obtained either from the Director of Controlled Commodities, Government of Andhra Pradesh, Abid Road, Hyderabad or from the office of the Concerned Assistant Director of Industries and Commerce (at District Head Qrs.) on payment of Rs. 2/- [Rupees two only) per form.

3. Incomplete applications or applications not enclosing all the certificates required are liable to be rejected.

4. Separate application forms should be sent for each vacancy, and should reach the office of the undersigned on or before 5-00 p. m., on 15th January 1961.

Sd. D. Nelli,

For Director of Controlled

Commodities,'

3. In conformity with the above notification, the petitioner-firm made an application on 7-1-1961 in the prescribed form and within the time specified for appointment as a Registered Stock-holder at Khammameth. Along with the petitioner, some other persons had also applied for being appointed as Registered Stock-holders of iron and steel at Khammameth. It is alleged in the present petition that, though the Collector of the District and the second respondent (the Director of Controlled Commodities, Andhra Pradesh) had recommended the case of the petitioner-firm for appointment, the State Government (first respondent) had recommended Sri Venkateswara Iron and Steel Syndicate, Khammameth (3rd respondent) for appointment as Registered Stock-holder, and have forwarded to the Iron and Steel Controller, Calcutta only the application of the said Syndicate, and had declined to forward the petitioner-firm's application to the Iron and Steel Controller. It is alleged that the power to register Stock-holders in respect of sale of iron and steel under the terms of the Iron and Steel (Control) Order, 1956 vests solely in the Iron and Steel Controller and that, even though, the State Government may make recommendations as regards the merits of the other applicants, it has no right to withhold any of the applications from being forwarded to the appointing authority for final consideration. It is further alleged that Sri Venkateswara Iron and Steel Syndicate was formed for the first time after the notification was issued on 30-12-1960 and that, it does not otherwise also satisfy all the qualifications and requirements laid down in the notification calling for applications. Upon that premises. the petitioner prays for the issue by this Court of a writ of Mandamus, directing the State Government to forward its application to the Iron and Steel Controller, Calcutta.

On behalf of the State Government, a counter-affidavit has been filed by the Assistant Secretary in the Industries and Commerce Department, stating inter alia that the second respondent had called for the applications by notification dated 30-12-1960 to give facilities to the dealers in the State to get themselves appointed as Registered Stock-holders, that the action taken by the respondents in respect of the applications is outside the purview of the provisions of the Essential Commodities Act, 1955, and the Iron and Steel (Control) Order, 1956, and that there is no legal obligation on their part to obtain applications and merely forward them to the Iron and Steel Controller, Calcutta. It is, therefore, alleged that neither the State Government nor the second respondent can be compelled by the issuance of a writ of Mandamus by this Court to do something which, under the terms of the Iron and Steel (Control) Order, 1956 or any other statute or enactment, they are not bound to do.

4. At the very outset, we may observe that we are not concerned with the question whether or not Sri Venkateswara Iron and Steel Syndicate is better qualified by reason of its larger business experience and financial stability to obtain the registration as Stock-holders of Iron and Steel than the petitioner-firm. It is no part of our duly in this petition to deal with the relative merits of the two applicants. We, therefore, say nothing about that aspect of the controversy.

5. The only question we have to decide is whether in the circumstances of this case, we should direct the respondents to forward the petitioner's application to the Iron and Steel Controller, Calcutta in the manner prayed for.

6. The determination of this question will depend upon two principal considerations: first, the nature of the powers, if any, of the State Government and the Director of Controlled Commodities, Andhra Pradesh under the Iron and Steel (Control) Order, 1956 in respect of the appointment of Registered Stock-holders; secondly, the circumstances under which the applications were called for and received by the second respondent (the Director of Controlled Commodities, Andhra Pradesh) and dealt with by the State Government.

7. We will now take up the first question. In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Act X of 1955), the Central Government promulgated on 8-5-1956, an order designated as 'Iron and Steel (Control) Order, 1956'. The said order regulates inter alia, the sale of stocks of iron and steel. Under its terms, sale of iron and steel can be made only by persons registered as Stock-holders. Section 2(1) of the Order defines a 'Stock-holder' as

'a person holding stocks of iron and steel for sale, who is registered as a Stock-holder by the Controller.'

'Controller' is defined in Section 2(1) of the Order as

'the person appointed as the Iron and Steel Controller by the Central Government and includes any person exercising, upon authorisation by the Central Government, all or any of the powers of the Iron and Steel Controller'.

It is not in dispute in this case, that so far as the State of Andhra Pradesh is concerned, the Central Government have not authorised any State officer or authority to exercise the powers of the Iron and Steel Controller in the matter of appointing Registered Stock-holders of iron and steel. That power of appointment is, therefore, vested solely in the Iron and Steel Controller, appointed as such by the Central Government and functioning now from Calcutta. The State Government to not deny the correctness of this position. In fact, in their counter-affidavit, it is clearly stated thus:

'It is true, as staled by the petitioner, that neither the Director nor the State Government has power to appoint registered stockists under the Iron and Steel (Control) Order. It is the Controlles, Iron and Steel who is competent to appoint the registered stockists.'

It is, therefore, clear that under the terms of the Iron and Steel (Control) Order, 1956, neither the State Government nor the Director of Controlled Commodities, Andhra Pradesh has any power toexercise or duties to discharge.

8. That brings us to the consideration of the second question via., the circumstances under which the State Government had taken the actions now being called in question. In regard to this matter, there is no controversy as to the main facts. The second respondent did call far applications for appointment as Registered Stock-holders. The petitioner and others had applied. Those applications were considered by the State Government. For reasons which appeared to them as good and cogent, they selected Sri Venkateswara Iron and Steel Syndicate and forwarded its application to the Controller along with their recommendation. The petitioner's application was not forwarded. It is stated by the State Government that the aforesaid action taken by them and the second respondent was not under the terms of the Iron and Steel (Control) Order, 1936 but by reason of some procedural arrangement evolved between the Iron and Steel Controller Calcutta and the State Government.

The correspondence that passed between the Iron and Steel Controller Calcutta and the State Government or the Director of Controlled Commodities, Andhra Pradesh in this behalf has not been placed before us. But, from what appears from the counter-affidavit filed by the Government and the arguments of the counsel at the Bar the arrangement seems to be this: The from and Steel Controller, who is the appointing authority is functioning from Calcutta. He has not therefore, the opportunities, which the State Government has in an abundant measure, of testing the qualifications and the merits of the applicants is the context of the local conditions. He has therefore, necessarily -- and we may add property -- to rely upon the State Government for a proper appraisal of the relative merit's of the applicants, In order to facilitate the process of selection and appointment, the second respondent held called for the applications, so that the State Government ernment may consider their relative qualifications for making recommendations lo the appointing authority. In fact, in the counter-affidavit filed by Government, it is expressly stated that the action taken by the second respondent in calling for applications was to 'facilitate the dealers in the State to get themselves appointed as Registered Stockists.'

9. In that view of the matter, it seems to do that the applications were called for and received by the second respondent on behalf of, and certainly for the use of, the Iron and Steel Controller, Calcutta, and that the State Government which, certainly is not the appointing authority has dealt with them only to assist the Controller in making the final selection for appointment

10. That this is the correct position is not disputed by the Government. In the counter affidavit, it is staled as follows:

'What all the respondents are doing now is to make some recommendations as to the qualifications of the applicants for appointment as Registered Stockists. This is not at all binding on the Controller, and the Controller, after making such enquiry as he thinks fit, may appoint anyother person whom he deems desirable. The recommendations of the respondents are only suggestions, and the Controller is at liberty to reject their recommendations.'

11. That being so, we are of opinion, thatthey State Government is bound to forward all the applications to the Iron and Steel Controller, Calcutta, with such recommendations as they deem fit to make in that behalf. If they State Government forwards to the appointing authority only theapplication which they choose to recommend and withhold the others, it seems to us, that they would virtually be exercising the power of appointment of Registered Stock-holders, a power, which ex concessi, they have not. Further, it is not made clear to us that how, if all the applications are not before the Iron and Steel Controller, he can exercise the power of selection, which the Government say, is solely vested in him by the terms of the Iron and Steel (Control) Order,1956.

12. It is contended by the learned Government Pleader that there is no obligation on the part of the Government to forward the applicationof the petitioner to the Iron and Steel Controller, as it was not, in fact, addressed to him. We arenot at all impressed with this contention. We have taken the view that in the circumstances ofthis case, the second respondent called for the applications under the authority of the State Government only on behalf of the Iron and Steel Controller, Calcutta, who is the only authority to dealwith the applications finally for the purposes of appointment.

13. It is next contended by the learned Government Pleader that even now there is nothing to preclude the petitioner from either applying to the Iron and Steel Controller, Calcutta directly,or to request him to call for the application of the petitioner from the State Government. It iscontended by the learned counsel for the petitionerthat the Iron and Steel Controller, Calcutta has,in some other case, declined to entertain the applications without the recommendations of the State Government and that, inasmuch as in the notification it is expressly stated that the applications must be made before 5 p.m., on 15-1-1961,no application can now be made. Whatever be the force of these contentions, it seems to us that the contention of the Government Pleader that even now the petitioner can make a direct approach to the Iron and Steel Controller, Calcutta, does not seem to be sustain able. The second respondent called for the applications for appointment, obviously under the authority of the State Government. In the action taken by the StateGovernment and the second respondent is implicit a representation to the applicant that theirapplications would be dealt with on the merits by the appointing authority whosoever it be. Havingthus received the applications, it is not now open to the respondents to turn round and say 'you have not applied to the Iron and Steel Controller. If you wish, you can do so now'. Such an attitude seems to us by no means justified.

14. It is suggested by the learned Government Pleader that since the filing of the writ petition, the petitioner had actually approached the Iron and Steel Controller, Calcutta, requesting him to call for his application from the State Government. It is further argued that, if, in spite of that representation the Iron and Steel Controller, Calcutta had not chosen to call for the application of the petitioner from the State Government it is not for this Court to direct the State Government to forward that application. A copy of the letter written by the petitioner to the Iron and Steel Controller, Calcutta on 25-11-1961 has been produced before us. Therein the petitioner bad intimated to the Iron and Steel Controller that he has filed the present writ petition in this Court and that it was pending. The petitioner in that letter requested as follows:

'In these circumstances, we request you either to call for our application along with the certificates and recommendations or defer the decision of appointment of Registered Stock Holders at Khammam. For which act of kindness, we shall ever be grateful.'

Obviously, the Iron and Steel Controller has not taken any action. We are unable to assent to the contention of the learned Government Pleader very strenuously urged before us that by reason of the petitioner having made a direct approach to the Iron and Steel Controller, Calcutta, he has disentitled himself from claiming any relief in this petition.

15. It is, then, contended by the learned Government Pleader that this is a policy question and that in many other and similar matters, the Government is pursuing the same policy as in this case, We have not been told what those other and similar matters are. We do not, therefore, propose to say anything about the legality or the propriety of the course which the Government is pursuing in matters of which we know nothing, We are concerned in this case only with the limited question whether in the events that had happened, the State Government can decline to forward the petitioner's application to the appointing authority. Upon that, we have reached the conclusion that it is not open for the State Government to do so.

16. The petitioner-firm is a trading concern. Its occupation is to carry on business in the sale of iron and steel. Under the Constitution, subject to certain reasonable restrictions, the petitioner has a fundamental right to carry on his trade or occupation. In order to effectually pursue that trade, it has, under the terms of the Iron and Steel (Control) Order, 1956, to apply for appointment as a Registered Stock-holder. That, the petitioner firm has done. In declining to forward its application for being considered by the appointing authority, it seems to us, that the State Government is depriving the petitioner of its right to have its application duly considered for appointment. In that view, we are of opinion, that there is an interference with the petitioner's fundamental right Article 19(i)(g) of the Constitution.

17. The learned Government Pleader has contended that in the instant case there is no question of any infraction of the petitioner's fundamental right. It is argued on the basis of the decision of the Supreme Court, in Harisankar Bagla . State of Madhya Pradosh, : 1954CriLJ1322 that the Iron and Steel (Control) Order, 1956 promulgated under Section 3 of the Essential Commodities Act (Act X of 1955) providing for the registration of Stockists for the sale of iron and steel, is a reasonable restriction on the fundamental right, and the right of the petitioner to get himself registered has not in any way been interfered with. We are not able to appreciate this contention. The question in this case is not whether the Iron and Steel (Control) Order 1956, prohibiting the sale of iron and steel except by stock-holders who get themselves registered as such, is a reasonable restriction or not. The question we have to decide is whether, in withholding the application of the petitioner, the State Government has not deprived the petitioner of its right to have its application duly considered by the appointing authority.

18. It is argued by the learned Government Pleader that no writ of Mandamus can be given against Government in a case where they are not, under a statutory or legal obligation, bound to do that, with respect to which, the relief is prayed for and that, in any case, it is not a writ of right which is granted as a matter of course, but it is a discretionary remedy, which, in the circumstances of this case, should not be exercised in favour of the petitioner.

19. The power of the High Court under Article 226 of the Constitution is not strictly confined to the issue of the prerogative writs like habeas corpus, mandamus, prohibition, quo-warranto and certiorari, as administered by the Court of Kings Bench in England. The High Courts are given the power to issue directions or orders for the enforcement of any of the rights conferred in Part III of the Constitution or for any other purpose. Therefore, even if the relief that is now sought for may not strictly fall within the ambit of the writ of mandamus, as generally understood by the Courts in England and India, it is still open to this Court to issue directions for the enforcement of the rights of the citizen guaranteed under Part III of the Constitution. We think, in the circumstances of this case, we are justified in giving the direction to the State Government, in the manner prayed for. Accordingly, an order will issue to the first respondent to forward the application of the petitioner filed on 7-1-1961 to the Iron and Steel Controller, Calcutta for appointment as Registered Stock-holder of Iron and Steel at Khammarneth, with such remarks thereon, as they deem fit.

20. The petition is, therefore, allowed withcosts. Advocate's fees Rs. 100/-.


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