Skip to content


Tare Chand Saluja and Sons Vs. the State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4186 of 1978
Judge
Reported inAIR1979P& H199
ActsParaffin Wax (Supply, Distribution and Price Fixation) Order, 1972; Constitution of India - Article 226
AppellantTare Chand Saluja and Sons
RespondentThe State of Haryana and ors.
Excerpt:
.....to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in..........petroleum for the release of monthly quota. he was given a blank on account of the decision of the state government communicated to them. the correspondence between the bharat petroleum and the state government did not yield any favourable result for the petitioner and the latter consequently filed civil writ petition no. 3570 of 1978 on august 23, 1978, challenging the decision of the government regarding the distribution of paraffin wax exclusively through the corporation. this petition was, however, withdrawn with permission to file a fresh petition on the same cause of action. the petitioner thereafter filed the present writ petition no. 4186 of 1978 on october 7, 1978.2. the joint director of industries, haryana, vide his letter dated october 28, 1978 (p. 7) declined to grant.....
Judgment:
ORDER

1. Bharat Petroleum Corporation Limited, Bombay, is one of the selling agents of paraffin wax produced by the Assam Oil Company, Digboi, Assam. For this purpose the former appoints distributors/agents for different territories. In 1973 the petitioner-firm was appointed one such distributor/agent for the territories comprising the districts of Gurgaon, Rohtak, Sonepat and Mohindergarh. In March, 1975, the Director of Industries, Haryana, informed the petitioner that a licence to carry on the business of a dealer in paraffin wax was required under the Paraffin Wax (Supply, Distribution and Price Fixation) Order, 1972, (hereinafter the Order) and further advised it to apply for the same. The petitioner consequently applied for the grant of such a licence. The District Industries Officer, Faridabad, recommended the application of the petitioner. The State of Haryana decided to arrange distribution of paraffin wax henceforth entirely through Haryana State Small Industries and Export Corporation Limited (hereinafter the Corporation) and informed Bharat Petroleum accordingly. On August 18, 1978, a representative of the petitioner-firm went to the office of Delhi Division of Bharat Petroleum for the release of monthly quota. He was given a blank on account of the decision of the State Government communicated to them. The correspondence between the Bharat Petroleum and the State Government did not yield any favourable result for the petitioner and the latter consequently filed Civil Writ Petition No. 3570 of 1978 on August 23, 1978, challenging the decision of the Government regarding the distribution of paraffin wax exclusively through the Corporation. This petition was, however, withdrawn with permission to file a fresh petition on the same cause of action. The petitioner thereafter filed the present writ petition No. 4186 of 1978 on October 7, 1978.

2. The Joint Director of Industries, Haryana, vide his letter dated October 28, 1978 (p. 7) declined to grant licence to the petitioner to carry on the business of a dealer of paraffin wax on the ground that the State Government had decided, as a matter of policy, to entrust the work of distribution to the Corporation in the larger public interest as it has its depots all over the State to carry on the business of a dealer of paraffin wax and is already engaged in the work of distribution of other scarce raw material. The petitioner has challenged the order of the Joint Director of Industries declining to issue the licence to it as also the decision of the Government to effect distribution of paraffin wax through the Corporation being arbitrary, illegal and without jurisdiction.

3. The State of Haryana and the Director of Industries, in their joint written statement, have denied that the decision of the State Government to arrange for distribution of paraffin wax henceforth through the Corporation, is illegal, arbitrary, without jurisdiction or the order of the Joint Director (P. 7) dated October 28, 1978, declining the licence to the petitioner under the Order is non est and void. It has further been averred that the order of joint Director of Industries (p. 7) is appealable under clause 10 of the Order and in the situation an alternative remedy of appeal being available to the petitioner, the writ petition is liable to fail as provided under clause (3) of Article 226 of the Constitution.

4. The Paraffin Wax (Supply, Distribution and Price Fixation) Order, 1972, came into force on February 4, 1972. Clause (7) of the order reads:--

'7. Dealers of paraffin wax to be licensed:--No person shall carry on the business of a dealer except under and in accordance with the terms and conditions of a valid licence granted to him under this Order.'

''Dealer'' has been defined in clause (2)(b) and it reads:--

'2(b) ''dealer'' means any person carrying on directly or otherwise the business of sale or storage for purposes of sale, of paraffin wax, whether wholesale or retail, or whether in conjunction with any other business or not, and includes his representative or agent.'

5. Clause (7) read with clause 2(b) of the Order debars the petitioner to function as a distributor/agent of paraffin wax without holding a valid licence. The petitioner did apply for such a licence which was declined by the Joint Director of industries (competent authority) vide order (p. 7) dated October 28, 1978.

6. Clause 10 of the Order provides for an appeal and it reads:--

'10. Appeal:-- Any person aggrieved by an Order made by the competent authority under clause 8 or under clause 9 may, within thirty days of the receipt of a copy of the order by him, prefer an appeal to the State Government and the State Government may, after giving the applicant an opportunity of being heard, confirm, reverse or modify such order.'

The order of the Joint Director of Industries dated October 28, 1978 (p. 7) is thus appealable at the instance of the petitioner before the State Government.

7. The contention of the learned counsel for the petitioner is that a the licence has been declined to the petitioner on the basis of a decision of the State Government to entrust the work of distribution to the Corporation, it would be futile an illusory to file an appeal against it before the same authority. I am not impressed by this contention. The alternative remedy of an appeal against the order (p. 7) is available to the petitioner. The order (p. 7) does make a mention about the policy decision taken by the Government, but that should not debar the petitioner to file an effective appeal against the order (p. 7) and to attempt to convince the State Government to revise their decision. May be that some points that the petitioner, may put forth were not taken into consideration by the State Government while taking the policy decision. The alternative remedy of appeal, therefore, cannot be stamped futile or illusory.

8. The learned counsel for the petitioner has drawn my attention to clause 8 of the Order, the relevant sub-clauses of which read:--

'8. Application for grant of licence:--

(1) Any person desiring to carry on the business of a dealer may make an application in duplicate for the grant of a licence to the competent authority in Form B appended to this Order together with a fee of rupees twenty-five.

(2)The competent authority may, after making such inquiry as it deems fit, either grant or refuse to grant the licence.

(3) Where the competent authority refuses to grant a licence, it shall record the reasons for so doing and a copy of the reasons so recorded shall be communicated to the applicant.

(4) to (6) .......................................

9. The learned counsel for the petitioner has laid stress on sub-clause (3) of clause 8 which makes it incumbent upon the competent authority to record reasons for refusing to grant a licence. The contention is that the order (p. 7) contains no reason for refusing to grant the licence and It is, therefore, no order in the eye of law. I see no merit in this contention.

10. It is doubtful if in the absence of any reason in order (p. 7) declining to issue the requisite licence to the petitioner it would be rendered no order In the eye of law.. This apart the Joint Director of Industries has given reason in P-7 for declining to issue a licence to the petitioner. The reason given is the policy decision of the State Government to entrust the work of distribution to the Corporation in the larger public interest which has its depots all over the State to carry on the business of paraffin wax and is already engaged in the work of distribution of other scarce raw material. It is riot disputed and is a matter of common knowledge that paraffin wax is a scarce raw material.

11. The learned counsel for the petitioner has then argued that it is a fundamental right of the petitioner to carry on any business including that of paraffin wax. This fundamental right of the petitioner stands contravened by the refusal of the Joint Director of Industries to grant the requisite licence to it. This case is therefore covered by sub-clause (a) of Clause (1) of Article 226 and the availability of an alternative remedy cannot be taken as a bar to the maintainability of this writ. This contention is again without any force. Nobody, including the petitioner, has a fundamental right to secure the licence to carry on the business of the sale of paraffin wax. The Paraffin Wax (Supply, Distribution and Price Fixation) Order, 1972, places a restriction on this right. The Paraffin Wax order which places a reasonable restriction is not unconstitutional. The non-issuance of a licence to the petitioner under the Order, therefore, dogs not contravene the fundamental right of the petitioner to carry on business.

12. The last contention of the learned counsel for the petitioner is that the order of the Joint Director of Industries (P. 7) is arbitrary and male fide. The licence has been declined to the petitioner to enable to State Government to implement their policy decision to entrust the work of distribution of paraffin wax to the Corporation. I am not impressed by this contention as well. The Government have taken a policy decision in the larger public interest to entrust the. work of distribution of scarce raw material like paraffin wax to the Corporation and a licence under the order has been issued to the Corporation. In this situation there can be no element of arbitrariness or mala fide on the part of the authorities in declining to issue the licence to the petitioner. In any case the mala fide or arbitrariness of Order (P. 7), would not render clause (3) of Art. 226 inoperative.

13. In view of discussion above tire petitioner cannot maintain this writ petition because an alternative remedy of appeal against the order of the Joint Director of Industries (P. 7) is available to it.

14. In the result, the writ fails and is dismissed with costs.

15. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //