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Shanker Dass Bishan Dass and ors. Vs. Deputy Commissioner, Jullundur City and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2654 of 1967
Judge
Reported inAIR1968P& H521
ActsConstitution of India - Article 19(1)
AppellantShanker Dass Bishan Dass and ors.
RespondentDeputy Commissioner, Jullundur City and ors.
Appellant Advocate G.C. Mittal and; M.C. Sud, Advs.
Respondent Advocate S.K. Sanwalkia, Adv. for A.G. (Pb.)
DispositionPetition allowed
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent 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..........226 of the constitution for quashing the orders, dated october 28, 1967 (annexure 'b') of the deputy commissioner, jullundur (respondent 1), whereby he fixed the prices of sweetmeats sold in jullundur district, and that dated november 2, 1967 (annexure 'c') whereby he cancelled the quotas of the petitioners of controlled commodities.2. the facts alleged in the petition are as follows:the petitioners are carrying on the business of halwais in jullundur city, and manufacture sweetmeats. the district food and supplies controller, jullundur, had allotted only a very limited quantity of sugar and maida for the preparation of sweetmeats to the petitioners. the supply of sugar drawn by them on the basis of ration cards in the month of october, 1967, was about 10 or 15 per cent of the.....
Judgment:
ORDER

R.S. Sarkaria, J.

1. This is a petition under Article 226 of the Constitution for quashing the orders, dated October 28, 1967 (Annexure 'B') of the Deputy Commissioner, Jullundur (Respondent 1), whereby he fixed the prices of sweetmeats sold in Jullundur District, and that dated November 2, 1967 (Annexure 'C') whereby he cancelled the quotas of the petitioners of controlled commodities.

2. The facts alleged in the petition are as follows:

The petitioners are carrying on the business of Halwais in Jullundur City, and manufacture sweetmeats. The District Food and Supplies Controller, Jullundur, had allotted only a very limited quantity of sugar and Maida for the preparation of sweetmeats to the petitioners. The supply of sugar drawn by them on the basis of ration cards in the month of October, 1967, was about 10 or 15 per cent of the actual requirement of each of the petitioners, who, besides purchasing the allotted sugar on their ration cards at the rate of Rs. 1.60 per kilogram, had to purchase desi khand in large quantity from the open market at rates ranging between Rs. 6.75 per kilogram to Rs. 7.25 per kilogram.

3. On the 28th October, 1967, the Deputy Commissioner, in pursuance of the instructions (Annexure 'A') received from the Director, Food and Supplies, and Joint Secretary to Government, Punjab, called the office bearers of the Halwais Union. The petitioners also went there. The Deputy Commissioner (Respondent 1) told the petitioners and the office-bearers of the Halwais Union that rates of sweetmeats prepared with vegetable ghee should be fixed at Rs. 4.75 per kilogram while the rates of sweetmeats prepared with khowa and milk be fixed at Rs. 6.25 per kilogram. The petitioners and the office-bearers of their Union did not agree. The Deputy Commissioner, however, passed the impugned order, dated 28th October, 1967 (Annexure 'B') as District Magistrate, fixing the rates of the sweetmeats at aforesaid. It is also stated in that order that any Halwai contravening it will render himself liable to the cancellation of his quota of controlled commodities. The petitioners ignored that order and continued to sell the sweetmeats at rates at which they wished to sell. Four Halwais challenged that order by means of Civil Writ No. 2448 of 1967, instituted in this Court on 30-10-1967. The Advocate-General, after seeking instructions, informed the Motion Bench on 31-10-1967 that the fixation of prices was a voluntary arrangement between the Halwais and the authorities. Accordingly, the Motion Bench made an order that if later on any action was taken against the petitioners on the basis of that order, they could approach this Court. The writ petition was accordingly dismissed.

4. On the 1st November, 1967, the Deputy Commissioner visited the shops of the petitioners and told them that he would take strict action against them for not selling sweetmeats at the rates fixed by him. The petitioners explained that the prices fixed were unreasonable and much below the preparation cost of the sweetmeats. The Deputy Commissioner by an order, dated 2-11-1967 (Annexure 'C') thereupon cancelled the quotas of controlled commodities previously admissible to the petitioners, with immediate effect on the ground that he had found the petitioners selling sweetmeats at rates higher than those he had fixed. All these orders (Annexures 'A', 'B' and 'C') of Respondents 1 and 2 are being challenged as illegal and ultra vires on the following grounds.

(1) The Central or the State Government has not issued any order under the Essential Commodities Act or other relevant statute authorising or empowering the District Magistrate to fix rates of sweetmeats.

(2) The impugned orders infringe the fundamental right of the petitioners guaranteed by the Constitution to carry on their business. The impugned orders will make it impossible for the petitioners to make their both ends meet and earn their livelihood

(3) The prices were fixed in an arbitrary manner without the consent of the petitioners.

(4) The impugned order (Annexure 'C') cancelling the quotas of the petitioners is based on extraneous consideration, viz., for enforcing the illegal order (Annexure 'B') and, as such, was without jurisdiction.

5. The petitioners, therefore pray for a writ of certiorari, quashing the impugned orders (Annexures 'A'. 'B' and 'C') and further pray for a mandamus directing Respondent No. 1 to restore the quotas of the petitioners

6. The Deputy Commissioner/District Magistrate (Respondent 1) admitted the issuance of the impugned orders. It was also admitted that the petitioners and the office bearers of the Halwais Union were called by the Deputy Commissioner in a meeting and told that the Deputy Commissioner would be fixing rates of sweetmeats as In Annexure 'B', because they were being supplied sugar and Malda at controlled rates. It was further admitted that by way of protest some of the Halwais had walked out of the meeting. The remaining Halwais present in the meeting room were apprised of the prices fixed by the Deputy Commissioner. It was admitted that there was no agreement over the prices so fixed, between the office-bearers of the Halwais Association and the Deputy Commissioner. It was also admitted that the quotas of the controlled commodities admissible to the petitioners were cancelled/suspended as they were found selling sweetmeats at rates higher than those fixed by the District Magistrate. It was denied that the prices were fixed arbitrarily. The orders fixing the prices and withdrawing the concession of quota were administrative orders. The petitioners were under reciprocal obligation to abide by the order of the respondent while enjoying the quota given to them. It was added that orders were made in good faith taking into consideration the Interests of the Halwais and the consumers.

7. Respondent No. 2 also filed his separate return in which similar pleas were taken.

8. The first question that falls to be determined is, whether the impugned order (Annexure 'B'), dated 28th October. 1967, of the District Magistrate (Respondent 1) fixing the rates of sweetmeats in Jullundur District is valid or not. The learned counsel for the respondent has not been able to refer to any statutory rule or order, whereby the District Magistrate was empowered to fix the rates of sweetmeats sold in Jullundur District. Similarly, the letter, dated 26th October, 1967 (Annexure 'A') from the Director of Food and Supplies, and Joint Secretary to Government, Punjab, does not on the face of it, purport to have been issued in exercise of any statutory power. All that it requires the Deputy Commissioner to do is to convene a meeting of the Halwais and ask them to fix the reasonable prices of their products on a voluntary basis. It is admitted in written statement of Respondent 1 that the petitioners or the office-bearers of the Halwais Union did not agree to the fixation of these rates, which were then fixed by the Deputy Commissioner on his own, after consulting the Municipal Commissioners and other persons. The learned counsel for the respondent concedes that this was an executive order, the infringement of which was not punishable under the law.

9. Thus, the case further resolves itself into the issue whether the District Magistrate could, by means of an executive order, fix these rates

10. Mr. G.C. Mittal vehemently contends that under Article 19 of the Constitution, the petitioners had a fundamental right to carry on the trade or business of preparing and selling sweetmeats at prices of their choice, and any restrictions on that fundamental right could be imposed by or under authority of law, and not by means of an arbitrary executive order. I find force in this contention. Article 19(1)(g) of the Constitution says:

'19.

(1)

All citizens shall havethe right-

(a)

.

.

.

(b)

.

.

.

(c)

.

.

.

(d)

.

.

.

(e)

.

.

.

(f)

.

.

.

(g)

to practise any profession orto carry on any occupation, trade or business.'

Clause (6) of the same Article reads as follows:

'(6) Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause...........'

11. The impugned order of the District Magistrate (Annexure 'B') obviously operates as a restriction on the fundamental right of the petitioners to carry on the business of the manufacture and sale of sweetmeat at rates chosen by them. Under Clause (6) of Article 19, a restriction on the fundamental right of business, in order to be valid must satisfy the following conditions:

(a) The restriction must have been imposed under any law.

(b) The imposition of such a restriction should be in the interest of the general public.

(c) It should be reasonable.

12. In the instant case, condition (a) does not exist. The impugned order (Annexure 'B'), therefore, being violative of the right guaranteed to the petitioners by Article 19(1)(g) of the Constitution, must be struck down

13. Further question that remains to be considered is whether the impugned order of the District Magistrate (Annexure 'C') cancelling the quota of controlled commodities to the petitioners is valid.

14. Counsel for the State vehemently contends that the petitioners had no legal right to receive the quota of controlled distribution of sugar. It was a concession and could be withdrawn by the Deputy Commissioner without assigning any reason at any time. Consequently, says the counsel, the impugned order (Annexure 'C') does not cause any infraction of a legal right vested in the petitioners, who, consequently, have no locus standi to maintain this petition.

15. On the other hand, Mr. Mittal maintains that the inevitable result of the impugned order (Annexure 'C') is that the petitioners, who are Halwais, will not be able to carry on the business of preparing those sweetmeats of which the crystal sugar and Maida are necessary constituents. Thus, according to him, the impugned order will have the direct effect of inhibiting the petitioners from exercising their fundamental right of carrying on business. It is argued that if all the impugned orders are read together, it will be clear that the order cancelling the quotas has been passed on extraneous consideration, viz., for the purpose of enforcing the illegal impugned order (Annexure 'B'), whereby the District Magistrate purported to fix the prices of the sweetmeats.

16. It appears to me that the contention of the learned counsel for the petitioners must prevail. The impugned order (Annexure 'C') was admittedly and expressly passed as a penalty for disobedience of the impugned order contained in Annexure 'B', which, as already observed, was manifestly illegal and without jurisdiction. Read together, both the impugned orders, copies of which are Annexures 'B' and 'C, have the effect of violating the fundamental right of the petitioners to carry on their trade or business guaranteed by Article 19(1)(g) of the Constitution. The order in Annexure 'C' cancelling the quota of the petitioners 13 not to be read in isolation. It has to be read in conjunction with the impugned order by which the prices of the sweetmeats were fixed. It is true that the Deputy Commissioner had the power to grant the quota of controlled commodities and also to cancel the same, but as is correctly contended by the petitioners, the cancellation was motivated by an extraneous consideration, viz., of punishing the petitioners for disobeying the illegal order, dated 28th October, 1967 (Annexure 'B').

17. For reasons aforesaid, I would allow this petition, and quash the impugnedorders (Annexures 'B' and 'C'). In view ofthe fact that in passing these orders Respondent 1 had in mind nothing but the generalgood of the public, I leave the parties tobear their own costs.


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