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P. Sundardas Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. No. 4470 of 1982-B
Judge
Reported inAIR1984Ker18
ActsEssential Commodities Act, 1955 - Sections 2 and 3; Kerala Wheat Roller Flour Mills (Licensing and Control) Order, 1957
AppellantP. Sundardas
RespondentUnion of India (Uoi) and ors.
Appellant Advocate M. Ramachandran,; U.K. Ramakrishnan,; T.K. Jayaram a
Respondent Advocate Central Govt. Pleader and;Govt. Pleader
DispositionPetition allowed
Excerpt:
- - i am not pronouncing anything on the validity of these contentions as i am satisfied that the cancellation of the licence granted by respondent 3 was under a misconception of the correct position in law......the setting up of new roller flour mills of 30 tonnes capacity per day were withdrawn from the state government. hence, the grant of licence to sri p. sundardas is ab initio void. in the circumstances, the licence no. 1/mji, issued to sri p. sundardas, for conducting a roller flour mill, in b. s. no. 451/ of chelambra village in ernad taluk is hereby cancelled.' subsequent to this, the petitioner submitted an appeal dated 14-12-1981, a true copy of which is marked as ext. p-2, to the special secretary to government of kerala, food department, trivandrum. thereafter the petitioner received the order no. 13059/c2/ 81/food, fond (c) department, dated 27-3-1982 from the special secretary to government, informing the petitioner as follows:--'......i am directed to inform you thatthe.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The petitioner had, with a view to set up a wheat roller flour mill at Chelambra village of MalappuramDistrict, applied to respondent 3, District Collector, Malappuram, for a licence under the provisions of Wheat Roller Flour Mills (Licensing and Control) Order, 1957 (the Order). On 18-3-1981 the petitioner was granted a licence. Subsequently the petitioner received a communication from the 3rd respondent dt. 11-11-1981, a true copy of which is Ext. P-1, informing him as follows:--

'Sri P. Sundardas, Krishna Oil Mills, West Mill, Calicut has been granted a licence No. 1/MJI, in this office proceedings No. C34/487/81 dt. 18-3-1981 for conducting a Roller Flour Mill in R.S. No. 451/ of Chelambra village in Ernad Taluk.

The above licence was issued during the period when powers for permitting the setting up of new Roller Flour Mills of 30 tonnes capacity per day were withdrawn from the State Government. Hence, the grant of licence to Sri P. Sundardas is ab initio void.

In the circumstances, the licence No. 1/MJI, issued to Sri P. Sundardas, for conducting a Roller Flour Mill, in B. S. No. 451/ of Chelambra village in Ernad Taluk is hereby cancelled.'

Subsequent to this, the petitioner submitted an appeal dated 14-12-1981, a true copy of which is marked as Ext. P-2, to the Special Secretary to Government of Kerala, Food Department, Trivandrum. Thereafter the petitioner received the Order No. 13059/C2/ 81/Food, Fond (C) Department, dated 27-3-1982 from the Special Secretary to Government, informing the petitioner as follows:--

'......I am directed to inform you thatthe recommendation of this Government for restoration of the milling licence granted to you for starting a Wheat Roller Flour Mill in Chelambra Village, Ernad Taluk, has been rejected by the Government of India.'

It is aggrieved by Exts. P-1 and P-4 that this writ petition has been filed by the petitioner.

2. We may now make a brief survey of the relevant provisions contained in the Order. Clause 2 (c) of the Order (as it stood on 18-3-1981) defines the 'licensing authority'. It means an officer appointed by the State Government to exercise the powers and perform the duties of an Inspector under the Order. Clause 3 of the Order requires that no owner or person in charge of a roller mill, shall manufacture, or cause to be manufactured, any wheat product except under and in accordance with the terms and conditions of a licence issued under the Order. The mode of application for the licence is prescribed in Clause 4 and Clause 5 which deals with power to issue and renew licence lays down as follows:--

'(1) On receipt of an application under Clause 4, the licensing authority, may, after making such investigation as it may deem fit, issue or refuse to issue or renew or refuse to renew a licence having due regard to -

(a) the number of wheat roller flour mills functioning in the locality;

(b) the availability of wheat for supply with Central Government or, as the case may be, with the Food Corporation of India; and

(c) any other relevant factor.'

3. It would appear from the averments made in Ground D of the writ petition that the Government of India had issued a press Note in June 1979 to the effect that the State Governments might permit entrepreneurs desiring to install roller flour mills with a capacity of 30 tonnes per day without the need to obtain industrial licence under the provisions of the Industries Development and Regulation Act, 1951, and that the said press Note was withdrawn by Press Note No. 12 (69)LP/79 dated 24-5-1980. According to the petitioner respondent 3 by Ext. P-1 proceedings dated 11-11-1981 cancelled the licence granted to the petitioner on 18-3-1981 apparently on the ground that by virtue of the said Press Note the State Government's authority to order installation of roller flour mills below 30 tonnes capacity stood withdrawn on 24-5-1980 and, therefore, he could not have granted licence to the petitioner on 18-3-1981. It is evident that respondent 3 had mistaken the press Note as affecting his statutory power under the order to grant licence for wheat roller flour mills.

4. The Central Government also appears to have been under a misconception that because of the withdrawal of the earlier Press Note by the press Note dated 24-5-1980 respondent 3 was deprived on the power conferred on himunder Rule 2 (c) of the Order. On the other hand, the correct position is that neither the earlier Press Note nor the later Press Note in any way affected the statutory power conferred on him under Rule 2 (c) of the Order.

5. If Clause 2 (c) of the Order remained in force on 18-3-1981, the licence granted by respondent 3 to the petitioner on that date could not be characterised as one granted by him without power. Clause 2 (c) has been amended with effect from 6-2-1982 by Wheat Roller Flour Mills (Licensing and Control) Amendment Order, 1982 (the amendment Order), substituting the words 'Central Government' for the words 'State Government'. This amendment has no retrospective effect. The question is whether by administrative instructions this power vested on respondent 3 by the State Government in accordance with the provisions of the statutory rules, could be annulled or abridged. There is no legal force in the contention of the respondents that the licence granted by respondent 3 to the petitioner on 18-3-1981 was against administrative instructions given by the Central Government to the State Government and, therefore, the licence was ab initio invalid. The power conferred on respondent 3 under the statutory provisions cannot be taken away by administrative instructions or executive orders. The Central Government evidently proceeded on a wrong assumption that by its administrative instructions the power vested in the State Government had ceased to exist; and that has led respondent 3 to hold that the licence granted to the petitioner on 18-3-1981 was ab initio void, as stated in his communication dated 11-11-1981. This understanding of the position being absolutely wrong. Ext. P-1 order of respondent 3 and Ext. P-4 communication of respondent 4 based on a misinterpretation of the legal position cannot be sustained and are hereby quashed.

6. The petitioner having been granted a licence on 18-3-1981 by respondent 3 who under Rule 2 (c) of the Order had all the powers, at the time, the cancellation of that licence by respondent 3 stating that it was ab initio invalid, solely on the purported ground that his powers had already been withdrawn from the State Government, he is entitled to have it restored to the petitioner, as the cancellation is the result of a mistake of law committed by the respondents.

7. In the writ petition the petitioner has taken other grounds also to attack Exts. P-1 and P-4, including the plea of promissory estoppel, violation of Article 14 of the Constitution and the denial of natural justice. I am not pronouncing anything on the validity of these contentions as I am satisfied that the cancellation of the licence granted by respondent 3 was under a misconception of the correct position in law. All the same, when respondent 3 takes up the petitioner's application for renewal of the licence, the petitioner's case that he had expended large sums of money pursuant to the licence granted is to be borne in mind.

8. In the result, the writ petition is allowed. The 3rd respondent would take up the application for renewal of the licence that has already been made or might be made by the petitioner, and pass orders on the basis that the licence granted to him was validly granted in the exercise of the power vested in him. The order on the petitioner's application may be passed as early as possible, at any rate within 2 months from the date of receipt of a copy of this judgment or the date of the receipt of the application for renewal of the licence whichever is later. There will be no order as to costs.


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