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Amar Joti Builders and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 639 of 1972
Judge
Reported inILR1973Delhi531
ActsDelhi Bricks (Distribution, Sale, Movement and Price) Control Order, 1963; East Punjab, Control of Bricks Supplies Act, 1949 - Sections 3; Constitution of India - Article 19(1)
AppellantAmar Joti Builders and ors.
RespondentUnion of India and ors.
Advocates: B.S. Malik and; P.N. Tiwari, Advs
Cases ReferredKathi Raning Rawat v. The State of Saurashtra
Excerpt:
.....and price) control order, 1963 - the commissioner had issued directions to ensure restrictions on sale of bricks to non-consumers under 1963 order, promulgated under section 3 of east punjab control of bricks supplies act, 1949 -it was ruled that the commissioner had the authority to issue general or special directions as per clause 6 of the 1963 order and within the context of the order and the act - accordingly the clause was not unconstitutionalb) it was ruled that under article 19(1)(g) of the constitution of india, the restriction imposed on the sale of bricks to non-consumers, under delhi bricks (distribution, sale, movement and price) control order, 1963, promulgated under section 3 of east punjab control of bricks supplies act, 1949, was reasonable and in public interest-..........(4) clause 4 of the order provides :- 'noperson shall sell or attempt to sell or abet the sale of bricks to any person other than a consumer and at a price in excess of the price specified in the schedule to this order which have been and shall be fixed keeping in view the following factors:- (i) cost of clay, (ii) rent for land under the kiln and labourer's huts, (iii) cost of sand, (iv) expenditure on water, (v) expenditure on moulding, (vi) loading and unloading charges, (vii) cost of coal, (viii) cost of steel for chimneys, (ix) burning labour and initial expenses, (x) establishment, huts, office, stores, moulds, construction of kiln, cost and maintenance of approach roads and the miscellaneous expenses, (xi) natural damages to bricks, (xii) profit of the manufacturer......
Judgment:

S.N. Andley, J.

(1) This writ petition has been filed by 28 brickkiln owners, who are manufacturing bricks in the Union Territory of Delhi, to challenge various provisions of the Delhi Bricks (Distribution, Sale Movement and Price) Control Order, 1963, which was promulgated by the then Chief Commissioner of Delhi in exercise of power under section 3 of the East Punjab Control of Bricks Supplies Act, 1949, extended to Delhi. It also challenges various orders and directions issued by the authorities concerned in purported exercise of the powers under the aforesaid Order and the prosecutions launched against the petitioners for breach of such conditions. This writ petition was amended by adding another ground of attack as allowed by this Court by order dated October 10, 1972. With the writ petition, the petitioners have filed a copy of the aforesaid Order as annexure 'A'. It is, however, not disputed that the aforesaid Order was amended in 1963 itself and we have heard arguments upon the virus of the amended Order, hereinafter referred to as 'the Order'.

(2) Section 3 of the aforesaid East Punjab Control of Bricks Supplies Act, 1949, hereinafter referred to as 'the Act' empowers the Chief Commissioner insofar as it appears to him to be necessary or expedient for controlling the supply of- bricks or for securing their equitable distribution and availability at reasonable prices to provide, by notified order, in regard to bricks,-

(A)For regulating by licenses, permits or otherwise the storage, distribution, transport, acquisition, disposal, manufacture and consumption of bricks; (b) for controlling the prices at which bricks may be bought or sold; (c) for collecting any information or statistics with a view to regulating of the aforesaid matters; (d) for requiring dealers or kiln owners, to maintain and produce for inspection such accounts and records regarding bricks and to furnish such information relating thereto, as may be specified in the order; (e) for any incidental and supplementary matters including in particular the entering and search of premises, vehicles, the seizure by a person authorised to make such search of the bricks, in respect of which such person has reason to believe that contravention of any order made under this Act has been, is being or is about to be committed, the grant or issue of licenses, permits other documents, and the charging of fees thereforee.

(3) Clause 2 of the Order contains the definition clause and the relevant definition is of 'consumer' which means a person who acquires bricks for use in construction and not for transfer to any other person by sale or otherwise. The petitioners contended that the entire Order; the fixation of prices in exercise of powers under the Order and the directions issued by the authorities concerned were repugnant to Articles 19(l)(f) and (g) and 14 of the Constitution but during the course of arguments, the challenge was confined to clause 4 read with Clauses Ii and 12 and Clause 6 of the Order and to the fixation of prices and the aforesaid directions. We will deal with these challenges in the order mentioned.

(4) Clause 4 of the Order provides :-

'NOperson shall sell or attempt to sell or abet the sale of bricks to any person other than a consumer and at a price in excess of the price specified in the schedule to this Order which have been and shall be fixed keeping in view the following factors:- (i) cost of clay, (ii) rent for land under the kiln and labourer's huts, (iii) cost of sand, (iv) expenditure on water, (v) expenditure on moulding, (vi) loading and unloading charges, (vii) cost of coal, (viii) cost of steel for chimneys, (ix) burning labour and initial expenses, (x) establishment, huts, office, stores, moulds, construction of kiln, cost and maintenance of approach roads and the miscellaneous expenses, (xi) natural damages to bricks, (xii) profit of the manufacturer. Provided that a dealer other than manufacturer shall sell 3rd class bricks including 'munjad' (mis-shaped) bricks at a price not exceeding Rs. 3.00 np. per hundred at his business premises. Provided further that where the Commissioner is of the opinion that the coal used for burning any bricks has actually cost more than the cost taken into account in fixing the price specified in the Schedule, the Commissioner may, if such coal has been used for the said purpose with his knowledge and prior approval, by order in writing, permit the sale of the bricks burnt with such coal in such number and at such higher rate, not exceeding Rs. 15.00 per thousand than that mentioned in the Schedule, as may be specified in the Order. Explanationn:-The decision of the Commissioner as to which class a particular stock of bricks belongs shall be final. In arriving at his decision the Commissioner shall be guided by the specifications given in the Schedule.'

(5) It is contended that by reason of Clauses 11and 12, there is an absolute prohibition on the sale of bricks in the open market and manufacturers of bricks have to sell them only to such persons as hold permits issued by the Director. These Clauses read as under :-

'II.The Director may by general or special order in writing require any manufacturer/dealer/consumer holding stocks of bricks, to sell such bricks on permits issued by him to such persons and in such manner as may be specified in such order. 12. No manufacturer/dealer shall remove any bricks from his kiln or business premises without obtaining the previous permission in writing from the Director.'

(6) In our opinion, upon a proper construction, we do not find any absolute prohibition on the sale of bricks as contended by the petitioners. Clause 4 undoubtedly contains a prohibition of sale or attempt to sell or abetment of sale of bricks to any person other than a consumer but it would not be a proper construction of this Clause to say that even a consumer has to be a holder of the permit issued by the Director. Clause 4 does not contain any prohibition against a manufacturer selling or attempting to sell or abetting the sale of bricks to a consumer even if he does not hold a permit. The prohibition is only against a sale etc. to a person who may be described as a non-consumer. It is true that if only Article 19(1)(f) and (g) is taken into consideration, even this restriction will be vocative thereof but it is contended on behalf of the respondents that this restriction is saved by Clause (6) of Article 19 which empowers the State to impose reasonable restrictions in the interests of the general public on the exercise of this right. It is not disputed even by the petitioners that there is scarcity of bricks in the Union Territory of Delhi and that consumers in Delhi who want to acquire bricks for use in construction and not to transfer to any other person by sale or otherwise are not able to get the bricks. In so far as the order seeks to make bricks available to a consumer and imposes a ban on the sale etc. by a manufacturer to a non-consumer, the restriction is reasonable in the interest of the general public as contemplated by clause (6) of Article 19. It is contended on behalf of the petitioners that Clause 11 makes it incumbent upon manufacturers to sell bricks only against permits issued by the Director, be it to a consumer or a non-consumer. We do not agree. It is true that in exercise of power conferred by clause 11, the Director may issue a permit even to a consumer and if that is done, the manufacturer will be bound to sell the bricks to such consumer. But this power does not restrict the liberty of the manufacturer to sell the bricks to any consumer he likes provided only that he does so within the price specified in the Schedule to the Order. Another contention raised by the petitioners is that even if the manufacturer were to sell to a consumer without a permit, he will not be able to remove the bricks from his kiln or business premises without obtaining the previous permission in writing from the Director as provided by Clause 12 and, thereforee, the liberty to sell to a consumer is restricted by the necessity of the permission of the Director contemplated by this Clause.

(7) In our opinion, the scheme of Clause 4 read with Clauses 11 and 12 is that so long as the manufacturer sells bricks to a consumer at a price which is not in excess of the price specified in the Schedule to the order, there is no necessity of obtaining a permit under Clause 11. As soon as a sale is effected by the manufacturer to a consumer without permit, the property in the bricks would pass to the consumer-purchaser and it will be the consumer-purchaser and not the manufacturer who will remove the bricks from the kiln or business premises of the manufacturer and, thereforee, the manufacturer will not be required to obtain a permission in writing from the Director under Clause 12. This interpretation is in accord with the practice prevailing as stated at the Bar by Mr. P. N. Tewari, learned counsel for the respondents. On this interpretation which we hold to be the correct interpretation, Mr. B. S. Malik, learned counsel for the petitioners, has withdrawn his challenge to the Order except as to the fixation of price and the issue of directions.

'THENwe come to the next challenge to the fixation of price. It is contended that apart from the factors which are mentioned in Clause 4, the fixation of price should take into consideration the various factors which are mentioned in annexure 'F' to the petition. It is contended that price of bricks was fixed in September, 1970, and although even the cost of factors mentioned in Clause 4 has increased, there has been no revision in the prices and that price was fixed without taking into consideration either the relevant factors or the representations of the trade. Apart from the fact that the additional factors in annexure 'F' to the petition are to a large extent included in the factors mentioned in Clause 4, it was stated to us on behalf of the respondents that the question of revision of price was considered in 1971 and 1972 and that this revision normally takes place at the beginning of the season in February of every year. At the time of such revisions, the Department, it is stated, also takes into consideration the representations that may be made by the trade. It is also stated by the Department that such revisions are bound to take place every year in February because Clause 4 provides not only for the initial fixation of price but also for revision and reliance is placed on the words 'at a price...... which have been and shall be fixed keeping in view. . . . . .'.

(8) In our opinion, the stand taken by the respondents that these words contemplate not only the initial fixation of price but also fixation of price from time to time if there is a change in the prices of the various factors is the correct stand. On these statements being made on behalf of the respondents, the petitioners have withdrawn their challenge to the price fixed for the bricks. The last challenge is to Clause 6 on the ground that it is vocative of Article 14 of the Constitution. This Clause provides :-

'(A)The Commissioner may issue such general or special directions to the manufacturers/dealers as he deem fit. (2) No manufacturer or dealer shall act in contravention of any directions issued by the Commissioner under sub-clause (1).'

(9) It is contended that there is absolute, unguided power given to the Commissioner to issue any directions 'as he deem fit' and it is open to him while issuing such directions to go even beyond the provisions of the Order or of the Act. Main reliance on behalf of the petitioners is on the decision of the Supreme Court in Harakchand Ratanchand Banthia and others etc. v. Union of India and others : [1970]1SCR479 . The Supreme Court were considering the constitutionality of the Gold (Control) Act, 1968. Section 27 of this Act, amongst other sections, was challenged. Sub-section (1) of this section provided that no person shall commence, or carry on. business as a dealer unles he holds a valid license in this behalf by the Administrator. Clause (d) of sub-section (2) of this section provides that a license issued under this section may contain such conditions, limitations and restrictions as the Administrator may think fit to impose and different conditions, limitations and restrictions may be imposed for different classes of dealers. As to this provision, the Supreme Court observed,-

'ONthe face of it, this sub-section confers such wide and vague power upon the Administrator that it is difficult to limit its scope. In our opinion Section 27(2) (d) of the Act must be struck down as an unreasonable restriction on the fundamental right of the petitioners to carry on business.'

(10) On the language of this section, no guidance or principle or policy is ascertainable and the power given to the Administrator to impose conditions, limitations and restrictions is so wide in its sweep that this section was found to confer wide and vague power upon the Administrator. No other provision of this Act contains any such guidance as to the conditions, limitations and restrictions that can be imposed and, thereforee, as held by the Supreme Court, this section conferred wide and vague power. That is not the situation that we find in the case before us. To start with, the source of power is the Act which, by section 3, specifies and prescribes the scope for the exercise of the power. The Order which is impugned was issued in exercise of the power under section 3 and, thereforee, in the background of the reasons for the Act which was to control the brick supplies and the provisions of section 3, it cannot be said that no guidance is available for the exercise of power under Clause 6 of the Order. That such guidance can be obtained from the other provisions of the legislation and even from its preamble and objects in established by decisions of the Supreme Court e.g. Messrs. Dwarka Prasad Laxmi 6HCD/73-3.

(11) Narain v. State of Uttar Pradesh and others : : [1954]1SCR803 Harishankar Bagla and another v. The State of Madhya Pradesh : : 1954CriLJ1322 and Jyoti Pershad etc. v. Administrator for the. Union Territory of Delhi and others: A.I.R. 1961 Sup Curt 1942. We do not find anything in National Buildings Construction Corporation v. Pritam Singh Gill and others : 1972 (2) Supreme Court Cases 1,. Rustom Cavasjee Cooper etc. v. Union of India : : [1970]3SCR530 and Utwar Singh V. State : Air 1956 Allahabad 412, which may be said to be contrary to these decisions.

(12) It is true that sub-clause (1) of Clause 6, on its language, seems to confer unguided power but if it is looked at in the context of the Order and the Act it cannot be doubted that the directions contemplated by Clause 6 must be within the four corners of these laws in relation to the distribution, sale, movement and price of bricks. In our opinion, the present case falls within the fifth proposition in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and others : 1959 Supreme Court Reports 279, where it is stated,-

'A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e.g., in Kathi Raning Rawat v. The State of Saurashtra that in such a case the executive action but not the statute should be condemned as unconstitutional.'

(13) As held already, we have found that the policy and principle of the Act and the Order provide for a sufficient guide-line and Clause 6 does not contemplate any directions which may be beyond the provisions of the Order or the Act. If such a direction is issued it will be struck down according to the aforesaid principle.

(14) In the arguments, the petitioners direction attemped to argue that some of the directions issued by the Commissioner in exercise of the powers under Clause 6 of the Order are ultra virus but no case has been made out nor any facts given with regard to any particular conditions. The petition proceeds on the basis that Clause 6 being ultra virus and vocative of Article 14 of the Constitution, the directions given so far must also be ultra vires. In the absence of material and specific challenge to any particular conditions, we cannot go into their virus in this petition. It will, of course, be open to the petitioners to challenge the virus of any directions given under Clause 6 of the Order if they are in excess of power or vocative of any Article of the Constitution, be it in the prosecutions that are pending against the petitioners or some of them or by some independent proceedings. We express no opinion about the virus of any of the directions, a list of which has been filed with this petition.

(15) In the result, the writ petition is dismissed but, in the circumstances, we direct that the parties will bear their respective costs.


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