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Kalyan Industries Ltd. Vs. the State of Bombay (Now Gujarat) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR36
AppellantKalyan Industries Ltd.
RespondentThe State of Bombay (Now Gujarat)
Excerpt:
- - 7. the second contention urged by the learned counsel for the appellant is however well founded......hereinafter be referred to as the act the govt. of bombay issued an order on 16-1-1953 called 'the bombay government oilcakes (procurement) order 1953 which will hereinafter be referred to as the procurement order. section 3 of this order provided that every mill shall with effect from monday the 19th january 1953 reserve 50 per cent of the production of groundnut oilcakes produced in his mill every week and deliver to the government or any person authorised by it in this behalf on presentation of a release order such of the quantities from out of the production so reserved as may he specified in the release order from time to time at a rate not exceeding rs. 100/- per ton ex-mill including the cost of sound second-hand gunny bags without any holes or patching or stitching or darning on.....
Judgment:

V.B. Raju, J.

1. This if a second appeal by the original plaintiff whose suit has been dismissed by the Civil Judge Senior Division Godhra. In first appeal the District Judge of Panch Mahals at Godhra confirmed the decree dismissing the suit.

2. The facts of tips litigation can be briefly stated as follows: Under the powers delegated to it under Section 4 of the Essential Supplies (Temporary Powers) Act 1946 (XXIV of 1946) which will hereinafter be referred to as the Act the Govt. of Bombay issued an order on 16-1-1953 called 'The Bombay Government Oilcakes (Procurement) Order 1953 which will hereinafter be referred to as the Procurement Order. Section 3 of this Order provided that every mill shall with effect from Monday the 19th January 1953 reserve 50 per cent of the production of groundnut oilcakes produced in his mill every week and deliver to the Government or any person authorised by it in this behalf on presentation of a release order such of the quantities from out of the production so reserved as May he specified in the release order from time to time at a rate not exceeding Rs. 100/- per ton ex-mill including the cost of sound second-hand gunny bags without any holes or patching or stitching or darning on the surface of the bag. On 9-5-53 the Government of Bombay passed an order No. 8215 whereby it was provided that in pursuance of Clause 3 of the Bombay Groundnut Oilcakes (Procurement) Order 1953 the Government of Bombay is pleased to direct that Messrs. Kalyan Industries Ltd. Rice Pulse and Oil Mills Jhalod District Panch Mahals shall sell and deliver 41 ton and 10 Cwts. of groundnut oilcakes of quality I held by them from out of the 50 per cent production reserved at the rate of Rs. 100/- per ton to the Collector of Panch Mahals Godhra within a period of fifteen days from the date of the issue of this Order. On the same date the Government of Bombay passed another Order No. 8049-G exempting the plaintiff company namely Messrs. Kalyan Industries Limited Rice Pulse and Oil Mills Jhalod District Panch Mahals from the operation of the Bombay Groundnut Oilcakes (Procurement) Order 1953 The Procurement Order stood cancelled on 24-6-53 as a result of notification issued by the Bombay Government on that date. Although the Procurement Order was cancelled on 24-6-53 the Government of Bombay took delivery of 41 tons and 10 Cwts. on 30-6-53 at the controlled price of Rs. 100/- per ton. The plaintiffs contention in his plaint was that the Procurement Order issued by the Bombay Government was ultra vires being in excess of the power delegated to it by the Central Government under Section 4 of the Act and secondly as that Order was cancelled on 24-6-53 the Government of Bombay should have paid the market price On 30-6-53 when it took delivery of 41 tons and 10 Cwts. of groundnut oilcakes whereas it paid the plaintiff at the rate of Rs. 100/- per ton which was the previously controlled price under the Procurement Order which had been cancelled on 24-6-53.

3. The trial Court held that the Procurement Order was not illegal or ultra vires and that the Government of Bombay was entitled to take delivery of 41 tons and 10 Cwts. of groundnut oilcakes at the controlled price even after the cancellation of the Procurement Order by the notification dated 24-6-53. In view of these findings the trial Court did not give any finding on the remaining issues and dismissed the plaintiffs suit. In appeal the learned District Judge confirmed the findings of the trial Court on these points and dismissed the appeal.

4. In second appear the view taken by both the Courts below on these two points has been challenged. The points for determination in this appeal are therefore (1) whether the Bombay Groundnut Oilcakes (Procurement) Order, 1953, issued by Notification No. 8049-G dated 16-1-53 was illegal and ultra vires and (2) whether the defendant namely the Government of Bombay should haw paid the market price prevalent on 30-6-53 or whether it was justified in paying the controlled price of Rs. 100/- per ton in respect of the groundnut oilcakes taken delivery of by the defendant Bombay Government on 30-6-53.

5. My findings are: (1) The Bombay Groundnut Oilcakes (Procurement) Order 1953 is not illegal or ultra vires; and (2) the defendant should pay the market price prevalent on 30-6-53 for 41 tons and 10 Cwts. of groundnut oilcakes taken delivery of by it from the plaintiff on 30-6-53 in view of the fact that the controlled price of Rs. 100/- per ton which was in force under the Order dated 15-1-53 came to an end when the Procurement Order was cancelled by the notification dt. 24-6-53.

6. It is urged in support of the first point that the powers of the Bombay Government to reserve 50 per cent of the production of groundnut oilcakes produced in the mill contained in Section 3 of the Procurement Order 1953 are beyond the powers delegated to it by the Central Government under Section 4 of the Act. Section 3 of this Act provided for regulating the production supply and distribution of any essential commodity. It is conceded before me by the learned Counsel for the appellant that groundnut oilcakes is an essential commodity. When the power to regulate the production supply and distribution of essential commodities is given by the Act the power to reserve 50 per cent of the production of groundnut oilcakes for delivery to the Government or any person authorised by it would be a part of the scheme of regulation of the production supply and distribution. There is therefore nothing in the Procurement Order which is beyond the powers delegated to the Bombay Government by the Central Government. 1 therefore reject the contention of the learned Counsel for the appellant on this point.

7. The second contention urged by the learned Counsel for the appellant is However well founded. The Procurement Order which was passed on 16 was cancelled on 24-6-53. The powers to regulate the production supply and distribution and to control the price of essential commodities which the Bombay Government had under the Procurement Order dated 16 came to an end on 24-6-53. After that date the Bombay Government had no longer any authority to control the price of groundnut oilcakes. After that date if the Bombay Government took delivery of 41 tons and 10 Cwts. of groundnut oilcakes it should have paid the market price which prevailed on that date namely 30-6-53. But the Government however paid the controlled price of Rs. 100/- per ton on the ground that this quantity had been reserved by an order (Ex. 33) issued by it on 9 in pursuance of clause 3 of the Procurement Order.

8. It is contended by the learned Government Pleader that although the Procurement Order came to an end on 21-6-53 the orders issued under that Order prior to that date continued to be operative and he relies on Section 6 of the Central General Clauses Act. He contends that Section 6 of the Central General Clauses Act applies not only to enactments but also to Orders issued by the Bombay Government. In my opinion, this contention cannot be accepted. If it was the intention of the Legislature to apply principles contained in Section 6 ol the Central General Clauses Act or Section 7 of the Bombay General Clauses Act to Orders issued by the Government the wording of these sections would not have been limited to enactments regulations and Ordinances mentioned therein. When the ambit of the section is restricted expressly by the wording of the section itself the ambit of the section cannot be widened or expanded so as to embrace things not covered by the express wording of the Section. I therefore hold that there is nothing in Section 6 of the Central General Clauses Act or Section 7 of the Bombay General Clauses Act which applies to orders passed by the Government of Bombay. Whatever had been done by the Government of Bombay under the Procurement Order would cease to operate from the moment the Procurement Order itself ceased to be in force. It was cancelled by the notification issued by the Government on 24-6-53. The act of the Bombay Government controlling the price of groundnut oilcakes at Rs. 100/- per ton therefore came to an end on 24-6-53 when the Order giving power to control such price was cancelled.

9. The learned Government Pleader also relied on Exh. 31 which is an order passed by the Bombay Government under Clause 7 of the Procurement Order subject to the plaintiffs company was given exemption from the operation of the Order subject to the condition that the plaintiffs company should deliver to Government at the rate of Rs. 100/- per ton the quantity of groundnut oilcakes amounting to 70 tons. The Courts below took the view that in view of this order the plaintiffs company was bound by the condition under which it was granted exemption. This order cannot be treated as a contract. In fact Exs. 31 and 33 were two independent orders (1) requiring the plaintiff under clause 3 of the Procurement Order to deliver 41 tons and 10 Cwts. of groundnut oilcakes at the rate of Rs. 100/- per ton to the Collector Panch Mahals and (2) exempting the plaintiff from the operation of the Procurement Order. Exh. 31 is an order passed by the Government of Bombay under clause 7 of the Procurement Order whereby the plaintiffs company was exempted from the operation of this Procurement Order subject to the condition that the plaintiff should deliver to Government at the rate of Rs. 100/- per ton 70 tons of groundnut oilcakes including the quantity of 20 tons already released from their mills under the Procurement Order. Both these orders were passed under the Procurement Order 1953 and the operation of both these orders would come to an end on 24-6-53 in view of the cancellation of the Procurement Order 1953 on 24-6-53. No reliance can be placed on these two orders Exhs. 31 and 33 after 24-6-53 in view of the cancellation of the Procurement Order on 24-6-53. The order (Exh. 31) is not a contract between the parties and cannot be treated as a contract. After 24-6-53 this order ceases to have any operation as the power of the Government to procure groundnut oilcakes at the controlled price came to an end on 24-6-53.

10. The learned Government Pleader also refers to Ex. 32 which is an order of the Government of Bombay extending the period of validity of the release order Exh. 33 upto 30-6-53. As already observed by me Exh. 33 itself ceases 10 have any operation after 24-6-53 and therefore Exh. 32 cannot justify the act of the Government in paying only the controlled price after 24-6-53.

11. I therefore hold that both the Courts below erred in holding that the Government of Bombay was entitled to procure 41 tons and 10 Cwts. of groundnut oilcakes from the plaintiff at the controlled price of Rs. 100 per ton after 24-6-53. The plaintiff was entitled to the market price which prevailed on 30-6-53.

I therefore allow the appeal with costs throughout.


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