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Dugdh Utpadak Evam Vikreta Sangh, Jabalpur and ors. Vs. the State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 2306 of 1984
Judge
Reported inAIR1986MP9; 1985MPLJ606
ActsEssential Commodities Act, 1955 - Sections 3 and 3(2); Madhya Pradesh Essential Commodities (Exhibition of Prices and Price Control) Order, 1977
AppellantDugdh Utpadak Evam Vikreta Sangh, Jabalpur and ors.
RespondentThe State of Madhya Pradesh and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateRajendra Tiwari, Govt. Adv.
DispositionPetition allowed
Excerpt:
.....that before making an order relating to any matter specified in clauses (a), (c) or (f), the state government was expected to obtain prior concurrence of the central government as is clear from the phrase 'the state govt. 800 dated 9th june, 1978. at the time of argument the learned government advocate appearing for the state clearly accepted that the state government when by its notification amended the schedule to the exhibition of prices and price control orders 1977 by inclusion of milk, it was exercising the delegated powers conferred on the state government under g. ' this letter produced by the respondent state as annexure r-4 clearly goes to show that the central government felt that no concurrence was necessary as this letter discloses that the central government has..........800 dated 9th june, 1978 and it is therefore clear that in exercise of this delegated power the stategovernment could issue the notification dated 23rd june, 1984 and could pass orders fixing the price of milk for jabalpur which is order dated 4th august, 1984. this delegated power the state government could only exercise if the state government had obtained prior concurrence of the central government as is clear from the order g.s.r. no. 800 dated 9th june, 1978. it was contended by the learned government advocate that the state government, therefore, sought the concurrence of the central government and the reply received by the state government from the central government has been filed as annexure r-iv wherein the central government has written the state government (may) take.....
Judgment:
ORDER

G.L. Oza, C.J.

1. This is a petition filed by the petitioners seeking quashing of the amendment in the M. P. Essential Commodities (Exhibition of Prices and Price Control) Order, 1977, by which milk was included in the schedule to that order and also for quashing of the orders passed by the Collector, Jabalpur, No. 1984/Khadya/84 and No. 2006/Khadya/84, both dated 4th August, 1984, and also for a direction to restrain the respondents from enforcing the impugned orders by compelling the petitioners to sell milk at the rate of Rs. 5/- per litre according to these orders.

2. According to the petitioners, petitioner No. 1 is a society registered under the Societies Registration Act, 1973, and this society has been formed to safeguard the interests of dairy owners and other persons who carry on the business of keeping milking animals, maintaining dairy, producing milk and selling milk at Jabalpur. It is also alleged that this society is also authorised to represent the milk producers of Jabalpur before the authorities and also to file petitions.

3. According to the petitioners, petitioners Nos. 2 to 12 are carrying on the business of keeping milking animals, producing milk and selling milk at Jabalpur and they have been carrying on this business for several years. It is also alleged that they have to purchase animals, such as, cows, she-buffaloes, buffaloes and bulls and according to the petitioners the price of a Jercy cow is near about Rs. 7000/ per head and the price of a she-buffalo is Rs. 7000/- to Rs. 8000/- per head. The price of buffalo is about Rs. 4000/- and the price of a bull isabout Rs. 5000/-. It is also alleged that for carrying on the business as an economically viable unit, the petitioners are required to keep sufficient number of cattle-heads. They have also to engage menial staff for maintaining the animals and for other ancillary work. The petitioners also need the services of a veterinary doctor and they also need green fodder, concentrates, oil-seeds, oil-cakes etc. in sufficient quantity. It is alleged that the prices of chuni, bhusa and other concentrated and green fodders at Jabalpur are higher than those in other parts of the State and it is alleged that on this basis the petitioners have to incur an expenditure of about Rs. 5.50 per litre as cost of production. The petitioners have also given a break-up of the expenditure incurred by them as under:

1.

8 Kg. concentrate (dana) per head @ Rs. 1.60 per kg.

... Rs. 12.80

2.

Bhusa (dryfodder) per. kg.. Rs. 4.00

3.

Servant (per animal). Rs. 1.50

4.

Transport.Rs. 1.00

5.

Misc. Expenses (services of aveterinary doctor, milk cans, baskets etc.).Re. 0.70

Total Rs. 20.00

4. The petitioners have also given approximate expenditure incurred on dry animals as under:

1.

3 Kg. concentrates (dana) per head @ Rs. 1.60 per kg.. Rs. 4.80

2.

Bhusa (dryfodder) per kg.. Rs. 6.00

3.

Servant (per animal). Rs. 1.50

4.

Misc. Expenditure (services ofveterinary doctor, milk cans, baskets etc.).Re. 0.70

Total Rs. 13.00

On the basis of these calculations it is alleged by the petitioners that the cost of milk comes to Rs. 5.50 per litre and if they are permitted to sell it at Rs. 6/- per litre, then they can get a profit of about 11%, i.e. 50 paise per litre. It is also alleged that at Bhopal the milk is sold at Rs. 6/- per litre and at Raipur also it is sold at Rs. 6/- per litre.

5. It is also alleged by the petitioners thatat Indore the rate of milk is Rs. 4/- per litre, but according to the petitioners, the milk producers in that region have vast agricultural lands and grazing fields. They keep their dairies outside the city at a distance and at those places fodder concentrates are cheaper. It is also alleged that they do not have to purchase costly animals.

6. According to the petitioners, milk and milk products are defined in Item No. A. 11 under the Prevention of Food Adulteration Act, 1955, and it is further alleged that from the provisions of the Prevention of Food Adulteration Act it appears that different standards are prescribed for different classes and designations of milk and it is alleged that so far as homonized milk sold by the Government Dairy is concerned, the fat contents are only 4.5% and solid non-fat contents are 8.5% and still the milk is sold by the Government Dairy at Rs. 5.50 per litre. It is alleged that so far as the milk producers in Jabalpur are concerned, they have fixed the selling price of milk at Rs. 6.00 per litre.

7. According to the petitioners, the Essential Commodities Act, 1955, is enacted by the Parliament Section 2(1) defines 'essential commodity' to include cattle-fodder including oil-cakes and other concentrates, food stuffs including edible oils and oils. The word 'foodstuff' has not been defined under the Act and it is alleged that whether milk will fall within the ambit of 'food-stuff or not is not clear. It is alleged that so far as milk is concerned, there was no control of any kind on production and distribution of milk and normal food stuffs included in the definition under Section 2(v) of the Essential Commodities Act include the products of food crops, such as, cereals. Under Section 3(1) of the Essential Commodities Act, the Central Government has been empowered to regulate the production, supply and distribution of an essential commodity and under Sub-section (2)(c) of Section 3 the orders can be made to provide for controlling the price at which any essential commodity may be bought or sold. Under Section 4 of the Essential Commodities Act, the powers of the Central Government can be conferred on the State Government or its officers. The Central Government can also delegate its powers under Section 5 of the Essential Commodities Act and it is alleged that the Ministry of Agricultural andIrrigation (Department of Food) by Notification No. G.S.R. 800 dated 9th June, 1978, in exercise of the powers conferred under Section 5 of the Essential Commodities Act and in supersession of the order of the Government of India in the Ministry of Agriculture (Department of Food) No. G. S. R. 316(E), dated 20th June, 1972, the Central Government directed that the powers conferred on it by Sub-section (i) of Section 3 of the Essential Commodities Act to make orders provided for matters specified in Clauses (a), (b), (c), (d) (e), (f), (g), (h), (i), (ii) and (j) of Sub-section (2) of Section 3 shall, in relation to food stuffs, be exercisable also by the State Government subject to the condition laid down in that notification. The petitioners have fixed a copy of this notification as Document No. 1. The powers are required to be exercised by the State Government subject to the directions, if any, made by the Central Government in that behalf, and before making any order relating to the matters specified in Clause (c) in regard to the distribution and disposal of food stuffs, the State Government is required to obtain prior concurrence of the Central Government. According to the petitioners, para 3 of this notification lays down that in making an order relating to any of the matters specified in Clause (j), the State Government shall authorise only an officer of the Government.

8. The State Government, by Notification No. 6800-3549-XXX(i)-77, dated 26th September, 1977, has made Madhya Pradesh Essential Commodities (Exhibition of Prices and Price Control) Order, 1977. This order has been made in exercise of powers conferred by Section 3 of the Essential Commodities Act read with the order of the Government of India in the Ministry of Agriculture (Department of Food) No. G.S.R. 316(E), dated 20th June, 1972, and the Government of India in the Ministry of Industry and Civil Supplies, S.O.No. 681(E), dated 30th November, 1974, and S.O. No. 682(E), dated 30th November, 1974, with the prior concurrence of the Central Government. Paragraph 4 of that order regulates charging of prices of the commodities mentioned in the schedule to that order. That order included fifteen commodities. Item No. 13 was cooking gas and Item No. 14 was petroleum and diesel. Milk was not included in that order.

9. The State Government by NotificationNo. 3079/2113/XXIX-283 made Madhya Pradesh Dugdh (Dugdh Tatha Dugdh Utpad Le Jane Par Nirbandhan Tatha Dugdh Ke Dugdh Utpadan Me Samparivartit Karne Ke Pratishodh) Adesh, 1983. This order defined milk to include normal clean and fresh secretion obtained by milking of cow, buffalo, goat or sheep and includes milk with or without fat, standardised milk, toned milk, double toned milk or milk prepared from milk powder, but does not include articles commonly known as dried milk or milk or milk powder or condensed milk. That order only prohibited export of milk or milk products or prohibited manufacture of milk products. This order is published in Madhya Pradesh Rajpatra (Extraordinary) dated 12th May, 1983 at pp. 1511 to 1514. This order was made applicable by Notification No. P.4-1-XXIX-2-84 dated 24th May, 1984, in the areas falling within the limits of Indore, Jabalpur, Bhopal and adjacent Municipal Corporations with effect from 25th May, 1984. A copy of this order has been filed by the petitioners as Document No. 2.

10. Subsequently, by Notification No. 3579- 2362-XXIX-1-84 dated 23rd June, 1984, in exercise of powers conferred by Section 3 of the Essential Commodities Act read with the order of the Government of India in the Ministry of Agriculture and Irrigation (Department of Food) No. G.S.R. 800, dated 9th June, 1978, and the Government of India in the Ministry of Industry and Civil Supplies S.O. No. 681(E) dated 30-11-1978 and S.O. No. 682(E) dated 30-11-1978, the State Government made amendment in the Price Control Order, 1977. The amendment only added after Item No. 12 in the schedule 'milk' as Item No. 13. Document No. 3 is a copy of the notification filed by the petitioners. It is alleged that in exercise of that power, the Collector of Jabalpur, by his order No. 1984/Khadya/84 dated 4th August, 1984 fixed the maximum price of milk for sale in the limits of Jabalpur Corporation at Rs. 5/-per litre. The reason for that order which has been stated by the Collector is that milk has been declared to be an essential commodity. Complaints were received by him that milk producers were charging exorbitant price disregarding public feelings and also that they are selling milk at different rates. The Collector, after considering the rates submittedby the milk producers, passed an order under Clauses (4) and (7) of the Price Control Order, 1977. A copy of this order of the Collector has been filed as Document No. 4. According to the petitioners, they were aggrieved by this order of the Collector. Subsequently, by another order No. 2006/Khadya/84 dated 4th August 1984, the Collector, Jabalpur, stated that milk has been declared as essential commodity by the State Government by Notification No. 3579/2362-XXIX/1/84. He declared that under clause (4) of the Price Control Order, 1977, the State Government has fixed maximum price of milk at Rs. 5/- per litre. The petitioners and other milk producers at Jabalpur have been ordered to sell milk at the rate of Rs. 5/- per litre and on failure to comply with the order, it is said that they will be prosecuted under Sections 3 and 7 of the Essential Commodities Act. A copy of this order has been filed as Document No. 5. It is alleged by the petitioners that through their society and also individually they have been writing to the Collector, Jabalpur, and the Food Officer, Jabalpur, about fixation of price of milk. They wrote on 9-4-1984 (Document No. 6) intimating that their society had agreed to sell milk at Rs. 5.50 per litre and if they were required to make any change in that rate, they should inform the Collector, Jabalpur. By another letter dated 27-5-1984 they decided that as the prices of cake and fodder have been increased by Rs. 35/- to Rs. 45/- per quintal, they have decided to sell milk at Rs. 5/- per litre. Document No. 7 is a copy of that letter. They accordingly informed the Collector and the Food Officer on 28-5-1984. A copy of this letter is Document No. 8. It is alleged that they again wrote to the Collector on 22-6-1984 requesting him to call the meeting of all the cake and fodder merchants, authorities of military dairy farm, and Adhartal dairy farm and thereafter issue appropriate directions. Copy of this letter is filed as Document No. 9. It is alleged that they also intimated him that the cost of producing each litre of milk was Rs. 5.50 per litre and therefore they requested that the authorities should take appropriate decision and informed that selling milk at Rs. 6/- per litre from 15-4-1984 will be reasonable. They also requested the Collector that fodder and cake should be supplied to them at a reasonable price.

11. According to the petitioners, theauthorities did not consider their request and the petitioners continued to charge the price of milk at Rs. 6/- per litre but after the orders of the Collector, dated 4th August, 1984, the Collector and other authorities have been insisting that the petitioners should sell milk at the rate of Rs. 5/- per litre in accordance with the order. The authorities thereafter took drastic steps against the milk producers at Jabalpur. There was resistance by the petitioners and they refused to sell milk and they also decided not to milk the animals for some tune. There was shortage of milk at Jabalpur and it is alleged that ultimately, according to the orders of the Collector, the milk producers in the city agreed to sell milk at Rs. 5/- per litre under pressure.

12. It is alleged that the petitioners have a fundamental right to carry on the trade of producing and selling milk and that by the impugned orders of the Collector and the State Government their right to sell milk has been infringed. It is, therefore, contended that the Notification No. 3579-2362-XXIX-1-84 dated 23rd June, 1984, amending the Price Control Order, 1977 by including milk as Item No. 13 in the schedule and the orders of Collector, Jabalpur, No. 1984/Khadya/84 and No. 2006/Khadya/84, both dated 4th August, 1984 are ultra vires. It is also contended that amendment to the Price Control Order done by the State Government on 23rd June, 1984 is beyond the powers of the State Government. It is also contended that milk has not been included in the definition of the term 'food stuff under the Essential Commodities Act and the Central Government has not issued any notification including milk in the definition of the term essential commodity. The State Government, therefore, could not issue the notification for inclusion of milk in the schedule to the Price Control Order, 1977. It is also contended that the Central Government has not delegated the powers under Section 3(2)(c) of the Essential Commodities Act either to the State Government or to the Collector, Jabalpur, to fix price of milk as an essential commodity and therefore it is beyond the powers of the State Government or the Collector. It is also contended that there is no concurrence of the Control Order, 1977 and the amendment of the schedule to the Price Control Order is without the authority. The petitioners, therefore, contend that theseorders passed by the State Government and the Collector, Jabalpur, are illegal and invalid and should, therefore, be quashed.

13. In the return filed by the respondent State, facts, are not in dispute except the dispute about the cost of production. The petitioners have tried to work out the cost of production on the basis of certain data, whereas according to the State, that is not the correct approach. According to the stand taken by the respondent State, the Central Government by order No. G.S.R. 800, dated 9th June, 1978, delegated the powers under Section 5 of the Essential Commodities Act to the State Government to make orders in respect of any of the Clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (ii) and (j) of Sub-section (2) of Section 3 of the Essential Commodities Act and it is in exercise of this delegated power that the State Government issued an order dated 23rd June, 1984 by insertion of Item No. 12 'milk' in the M. P. Essential Commodities (Exhibition of Prices and Price Control) Order, 1977, and further in pursuance of this delegated power the State Government passed an order dated 3rd August, 1984 fixing the price of milk at Rs. 5/- per litre which was notified by the Collector, Jabalpur, by his order dated 4th August, 1984. It is also contended by the respondent State that although when the Central Government conferred powers on the State Government in relation to Clause (c) of Sub-section (2) of Section 3, these powers were conferred subject to prior concurrence of the Central Government in respect of Clauses (a), (c) and (f) of Sub-section (2) of Section 3 of the Essential Commodities Act and in pursuance thereof the State Government sought concurrence of the Central Government when they proposed the amendment of Exhibition of Prices and Price Control Order, 1977 by inclusion of milk in the schedule as Item No. 13 and the respondent State has relied on the communication received from the Central Government viz-D.O. Letter No. 20/1/81-ECR (Vol.11), dated 2nd June, 1984 (Annexure R-IV) and, therefore, contended that the State was within its powers when it amended the Exhibition of Prices, and Price Control Order, 1977 and passed the order dated 3rd August, 1984 fixing price of milk for the area of Jabalpur corporation in exercise of those powers.

14. Learned counsel appearing for thepetitioners, apart from other contentions, frankly conceded that the matter could be decided solely on the question as to whether the State Government had the authority under the Essential Commodities Act to include milk by amendment of the Exhibition of Prices and Price Control Order, 1977 by insertion of Item No. 13 'milk' in the schedule without having prior concurrence of the Central Government

15. It is not in dispute that the Central Government by order No. G.S.R. 800 dated 9th June, 1978 for the first time conferred powers on the State Government to make orders in respect of Clause (c) of Sub-section (2) of Section 3 of the Essential Commodities Act. The earlier orders passed by the Central Government authorising the State Government were in respect of other clauses of Sub-section (2) of Section 3 but no power was conferred in respect of clause (c) of Sub-section (2) of Section 3. Section 3, Sub-section (2)(c) reads:

'for controlling the prices at which any essential commodity may be bought or sold.'

It is clear that the order passed by the Central Government i.e. G.S.R. No. 800 dated 9th June, 1978 confers power on the State Government to make orders to provide for the matters specified in Clauses (a) to (j) of Sub-section (2) of Section 3. The said order reads as under :

'In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955), and in supersession of the order of the Government of India in the late Ministry of Agriculture (Department of Food) No. G.S.R. 315(E) dated the 20th June, 1972, the Central Government 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 the Clauses (a), (b), (c), (d),(e), (f), (g), (h), (i), (ii) & (j) of Sub-section (2) thereof shall, in relation to food stuffs be exercisable also by a State Government subject to the conditions :--

(1) that such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Govt. in this behalf;

(2) that before making an order relating to any matter specified in the said Clauses (a), (c) or (f) or in regard to distribution of disposal of food stuffs to places outside the State or inregard to regulation of transport of any food stuffs, under the said Clause (d), the State Government or the Central Government; and (3) that in making an order relating to any of the matters specified in the said Clause (j) the State Government shall authorise only an officer of the Government.'

But this order was subject to conditions, and Condition No. 2 clearly provided that before making an order relating to any matter specified in Clauses (a), (c) or (f), the State Government was expected to obtain prior concurrence of the Central Government as is clear from the phrase 'the State Govt. shall also obtain the prior concurrence of the Central Government.' It is, therefore, plain that when the State Government by notification dated 23rd June, 1984 amended the Exhibition of Prices and Price Control Order, 1977 by insertion of Item No. 13 'milk' this was in exercise of powers under Clause (c) of Sub-section (2) of Section 3.

16. It is also clear that when the State Government by its order dated 4th August, 1984 fixed the price of milk for Jabalpur, that was also in exercise of delegated powers under the orders of the Central Government dated 9th June, 1978 referred to above delegating the powers on the State Government to act and pass orders in accordance with Clause (c) of Sub-section (2) of Section 3.

17. The respondent State has also referred to an order passed by the Central Government, dated 30th November, 1974 wherein there is a reference to Clause (c) of Sub-section (2) of Section 3, but it is clear that the power delegated under that order pertained not only to Clause (c) of Sub-section (2) but also to all essential commodities other than food stuffs and fertilizers and therefore it is clear that when the State acted by its notification dated 23rd June, 1984, it was only exercising powers delegated to it by G.S.R. 800 dated 9th June, 1978. At the time of argument the learned Government Advocate appearing for the State clearly accepted that the State Government when by its notification amended the schedule to the Exhibition of Prices and Price Control Orders 1977 by inclusion of milk, it was exercising the delegated powers conferred on the State Government under G.S.R. No. 800 dated 9th June, 1978 and it is therefore clear that in exercise of this delegated power the StateGovernment could issue the notification dated 23rd June, 1984 and could pass orders fixing the price of milk for Jabalpur which is order dated 4th August, 1984. This delegated power the State Government could only exercise if the State Government had obtained prior concurrence of the Central Government as is clear from the order G.S.R. No. 800 dated 9th June, 1978. It was contended by the learned Government Advocate that the State Government, therefore, sought the concurrence of the Central Government and the reply received by the State Government from the Central Government has been filed as Annexure R-IV wherein the Central Government has written the State Government (may) take appropriate action at their discretion.' This letter produced by the respondent State as Annexure R-4 clearly goes to show that the Central Government felt that no concurrence was necessary as this letter discloses that the Central Government has delegated the powers to the State Government and it is, therefore, plain that this letter could not be said to be the concurrence of the Central Government. The letter which has been produced as Annexure R-IV reads : --

'Please refer to your telex No. 28/1/1585/29/1/9/84, dated the 19th May, 1984 regarding inclusion of milk in the schedule to Madhya Pradesh Essential Commodities (Exhibition of Prices and Price Control) Order, 1977. As you are aware, the Central Government delegated to the State Government powers to make orders or issue notifications in relation to all essential commodities subject to conditions stipulated in S.O. Nos. 681(E), 682(E) dated the 30th November, 1974 and G.S.R. 800 dated the 9th June, 1978 (copies enclosed for ready reference). Since the present proposal of the State Government is within the delegated powers, the State Government (may) take appropriate action at their discretion. Five copies of the order when issued by the State Government may be sent to this department for reference and record.'

The learned Government Advocate also was not in a position to contend that this letter could be said to be the concurrence conferred by me Central Government. It is apparent that this is only a letter which was received from the Joint Secretary, Government of India, Ministry of Civil Supplies, but is not aconcurrence given by the Central Government. It is, therefore, plain that where the State Government in exercise of their powers delegated to it under G.S.R. 800 dated 9th June, 1978 issued the notification dated 23rd June, 1984 by including milk as Item No. 13 in the schedule of Exhibition of Prices and Price Control Order, 1977 and issued an order fixing the price of milk for Jabalpur by orders dated 4th August, 1984, the State Government exceeded the powers conferred on it under G.S.R. No. 800 dated 9th June, 1978 as the power could only be exercised after prior concurrence of the Central Government and as discussed earlier there was no prior concurrence of the Central Government. In this view of the matter, therefore, the notification issued by the State Government dated 23rd June, 1984 and the orders passed by the Collector, dated 4th August, 1984, are without the lawful authority and, therefore, the notification and the orders are clearly invalid. So far as the orders passed by the Collector, Jabalpur, are concerned, it is not disputed that the Collector had no authority but it was contended that he had only conveyed the orders passed by the State Government, dated 4th August, 1984. In any event, as the State Government had no authority to pass the impugned order fixing the price of milk, the Collector's orders also were without any lawful authority.

18. An attempt was made by learned counsel for the petitioners to contend that the milk will not be included in food stuffs as has been provided in the Essential Commodities Act but ultimately the learned counsel did not press this aspect of the matter as it is clear that food stuff is wide enough to include milk. Apart from it, as the order could not be justified on the basis of the authority the State Government had under the delegated powers of the Central Government conferred under G.S.R. No. 800 dated 9th June, 1978, it is not necessary for us also to go into any other question.

19. At the time of hearing as it appeared that in view of G.S.R. No. 800 dated 9th June, 1978 the State Government could not have acted without the concurrence of the Central Government keeping in view the situation about milk and its distribution and sale, it was indicated to the Government Advocate that steps be taken to get an appropriate validorder passed so that decision in this petition may not affect the distribution and sale of milk which is an essential commodity and learned counsel for the petitioners also did not object and time was granted, till ultimately the learned Government Advocate only stated that the matter be closed for judgment and it was not reported as to what has been done in the matter.

20. The petition is allowed. The notification issued by the State Government, dated 23rd June, 1984, and the orders passed by the Collector, Jabalpur, fixing the price of milk for Jabalpur, dated 4th August, 1984, are hereby quashed. In the circumstances of the case, parties are directed to bear their own costs. Security amount be refunded to the petitioners.


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