1. This is an application by Firm Udairaj Bankatlal under Article 226 of the Constitution of India for a direction, order, or writ in the nature of 'mandamus', prohibition, 'quo warranto', and 'certiorari', or any of them, to be issued against the State of Rajasthan and certain officers of the State, who have been made parties to the application.
2. The facts, which have led to this application are these. The petitioner is a merchant at Parbatsar, and deals in foodgrains, for which it holds a licence. 103 bags of barley, which were lying in the petitioner's godown in Basroli, were freezed in March 1949, under the orders of the Deputy Commissioner, Civil Supplies, Jodhpur. This happened before the United State of Rajasthan was formed. The grain remained freezed for some time, while the petitioner made representations to Government. Eventually the petitioner was asked to sell the grain at Rs. 9/- per 'maund' on the 3rd of January, 1951. The petitioner seems to have asked for time to make representations. Eventually the present application was filed on the 28th of February 1951, as the petitioner apparently failed in his representations to Government.
3. The contention of the petitioner is that barley was being allowed to be sold freely in the market, and no ceiling prices had been fixed by Government. The petitioner had purchased its stock at market rates on about Rs. 17/- or 18/-per 'maund', and held it in the usual course of business. No reasons had been assigned why the stock of the petitioner had been freezed and requisitioned at procurement rate, and no principles had been laid down in the Rajasthan Foodgrains Control Order, 1949, for freezing and requisitioning of the stocks of foodgrains with any dealer. It was contended that the Civil Supplies authorities had no authority to freeze and requisition the stock of barley with the petitioner arbitrarily without assigning any reason and that, in any case, if they had any such discretion, it had been highly abused so as to discriminate between one person and another. Reliance was placed on Articles 14, 19(1)(f), 19(1)(g), and 31 of the Constitution, read with Article 13, in this connection, and it was urged that law under which the action was taken was void and 'ultra vires.'
4. The application was opposed by the State of Rajasthan. Their case is that the barley in question had been imported from Bikaner at a time when Bikaner was a separate State. As the movement of foodgrains from State to State was banned, except on Government to Government basis, the stock was freezed, the import being in contravention of the law in force. The freezing order was passed under Clause 4 (1), of the Marwar Foodgrains Release Order, 1946, and no reasons were necessary to be assigned for freezing and requisitioning grain under that Order. It was also urged that similar powers were vested in the State under the Rajasthan Foodgrains Control Order, 1949, and the Rajasthan Foodgrains (Kharif) Procurement Order 1949, and the action taken was in accordance with law. Further, compensation was being paid, as provided by law, and the law under which the State had acted was not void in any manner. Lastly, it was urged that there was delay in the application, and, therefore, it should be dismissed on that ground, and that, in any case, an alternative remedy was open to the applicant.
5. This case is similar to the case of 'NATH-MAL v. COMMISSIONER, CIVIL SUPPLIES, RAJASTHAN', Miscellaneous Application No. 3 of 1951 (Raj). We do not, therefore, propose to repeat in detail what we have said in that case with respect to the application of Articles 14, 19(1)(f), 19(1)(g), and 31 of the Constitution, and shall indicate our decision briefly with particular reference to the facts of this case.
6. We shall first deal with the objection that the application has been made with a great deal of delay, and, therefore, should be dismissed on that ground alone. It is no doubt true that the grain was freezed as far back as March, 1949, and the present application could have been made soon after the 26th of January 1950, when the Constitution came into force. But it appears that the applicant was making representations to Government, and its real grievance arose after the 3rd of January 1951, when it was ordered to sell the grain at Rs. 9/- per 'maund' to Messrs. Deoraj Dolatraj Rationing Agents, Makrana. It seems that after this order the applicant took time to make certain representations, and when those representations also apparently failed that the present application was made on the 28th of February 1951. Under these circumstances, time has really to be counted from the 3rd of January 1951, and it cannot be said that there was a delay of two years in this case. We are not prepared to dismiss the application on this ground.
7. The- next point that is urged is that another remedy was open to the applicant, and it could file a suit. So far as that is concerned, it is enough to say that the suit would be barred under Section 16 of the Essential Supplies (Temporary Powers) Act, 1946, which is now in force in Rajasthan. There is, thus, no alternative remedy open to the applicant, and the application cannot be dismissed on this ground.
8. The next contention on behalf of the State is that the order freezing the grain was passed in March, 1949, under the Marwar Foodgrains Release Order, 1946, and cannot now be challenged, as the act of freezing was complete, and any fundamental rights that might have been conferred on the applicant in 1950, by the coming into force of the Constitution would not affect what had been done and completed. In this connection reliance is placed on the case of 'KESHAVAN MADHAVA MENON v. STATE OF BOMBAY', AIR (38) 1951 SC 128, where it was held that 'Article 13 (1) can have no retrospective operation but is wholly prospective', and that
'if an act was done before the commencement of the Constitution in accordance with the provisions of any law which, after the Constitution, becomes void, with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concern-ed, for to say that it is, will be to give the law retrospective effect.'
So far, therefore, as the order freezing the stock of the applicant is concerned, it was passed under the Marwar Foodgrains Release Order, 1946, in March, 1949, before the Constitution came into force, and must therefore, be upheld.
9. It is further contended on behalf of the State that Clause 4(2) of the Marwar Foodgrains Release Order, 1946, gave power to order sale of freezed stock to such persons as may be indicated in the order, and, therefore, the order to the applicant to sell the grain to a certain person as it was passed before the Constitution came into force, cannot also now be challenged.
10. There is, however, no proof that the order to sell the freezed stock at Rs. 9/- per 'maund' was passed before the 26th of January, 1950. Learned Government Advocate had taken time to show this, but was unable to do so. It seems to us that the order to procure the grain at Rs. 9/- per 'maund' was passed some time in February or March, 1950, and finally the applicant was notified on the 3rd of January, 1951, that it was to sell the grain to Messrs. Deoraj Dolatraj. All this happened after the coming into force of the Constitution, and also after the Rajasthan Foodgrains Control Order, 1949, had been passed in August, 1949. The order, therefore, for the sale of the grain to Messrs. Deoraj Dolatraj must be deemed to be an order under Clause 25 of the Rajasthan Foodgrains Control Order, 1949. There it is provided that freezed stocks shall be liable to be requisitioned or disposed of under orders of appropriate authority at the rate fixed for purposes of Government procurement, in this case Rs. 9/- per 'maund'. This brings us to the question whether this provision of the law under which this order must be deemed to have been passed is void in view of certain provisions in Part III of the Constitution relating to fundamental rights. So far as the present case is concerned, we are of opinion that Articles 14 and 19(1)(f) of the Constitution have no application, for the freezing took place before the Constitution came into force; but for reasons given in 'NATHMAL'S Case', Civil Misc. Appln. No. 3 of 1951 mentioned above, we are of opinion that that part of Clause 25 of the Rajasthan Foodgrains Control Order, 1949, which provides that freezed stocks shall be liable to be requisitioned or disposed of under orders of the appropriate authority at the rate fixed for purposes of Government procurement is void in view of Article 19(1)(g) of the Constitution. We are, further, of opinion that this part of Clause 25 is also void under Article 31(2) of the Constitution for reasons which we have already given in 'NATHMAL'S Case', and which we need not repeat here.
11. We, therefore, allow the application and set aside the order of the Civil Supplies Department conveyed through the Tahsildar Parbatsar on 3-1-51 directing sale of the freezed stock of 103 bags of barley belonging to the petitioner to Messrs. Deoraj Dolatraj at procurement rate. The applicant will get his costs of this proceeding from the State.