S.K. Mal Lodha, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India, in which the petitioner has sought issuance of writ of mandamus, prohibition or any other appropriate writ, order or direction for quashing the letter/order (Anx. 4), Annexure 4, amongst others, contains wireless message from the Relief Commissioner, Rajasthan, Jaipur to all the Collectors, which is as under:
In View Of Acute Fodder Scarcity In The State It Has Been Decided That Movement Of Fodder Including Corma And Gawar Churi May Not Be Allowed From Rajasthan To (Areas) Outside The State ( ) Please Ensure Compliance And Apprise Revenue Officers, Commercial Taxes Check Posts All Gram Panchayats With These Instructions(.)
2. The petitioner is a licencee and deals in food grains at Jodhpur. The Rajasthan Cattle Fodder (Sale of Stock & Prohibition of Export) Order, 1979 (for short'the Order) was promulgated vide notification No. COM/ Fodder/Rajasthan, P.s (1) RC/Fodder/79-80/2722 dated October 27, 1979 The Divisional Manager, Northern Railway (respondent No. 2) issued letter No. MT. 154T/132/11/183 (Anx. A) dated November 14, 1979. In this letter, the aforesaid wireless message was reproduced prohibiting the export of Gawar and Gawar Churi outside Rajasthan. The petitioner has stated that Anx. A has infringed his fundamental right to carry on the trade business and therefore, the letter/order (Anx. A) Is illegal, void and without jurisdiction. He has, therefore, prayed that Annesure A may be quashed.
3. A show cause notice was issued on December 19, 1979. In pursuance of that, counter-affidavit of Shri S.C. Sethi Assistant Optg. Superintendent (M) Northern Railway along with Annexure Rl and R2, was filed. It was stated in the counter affidavit that, the letter/order (Anx Rl) was issued In accordance with the instructions of, the Secretary to the Relief Commissioner, Government of Rajasthan, Jaipur and that after the receipt of the order (Anx. R2) dated December 28, 1979, Anx. Rl was withdrawn to the extent of Gram Churi and Gram husk. It was further stated In the counter affidavit that ban on movement of Gawar Churi and other derivatives of Gawar has not been removed. It was also stated that it has been clarified that the derivatives of Gawar come under the definition of Gawar and that export of Gawar has been prohibited under the Order.
4. Mr. D.S. Shishodia, Government Advocate also appeared to oppose the writ petition.
5. I have heard Mr. A. Rule Mehta, learned Counsel for the petitioner Mr. Bhagwati Prasad for Mr. L. Rule Bhansall for respondents No. 1 & 2 and Mr. D.S. Shishodia, Government Advocate for respondent No. 3.
6. Mr. A. Rule Mehta contended that Gawar and Gawar Churi are two separate things, that Gawar Churi is an export commodity and much costly than Gawar, that Gawar Churi can not be used as fodder and, therefore, the ban on export of Gawar churi and corma on the ground that they are cattle fodder, is illegal and it Infringes the petitioner's right to carry on the trade in Gawar churi and corma as he can not export them out side Rajathan under the order.
7. Section 3 of the Essential Commodities Act (No. x of 1955) (hereinafter referred to as 'the Act) deals with powers to control production, supply, distribution etc. of essential commodities. Material portion of Sub-section (2) of Section 3 is as under;
(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide-
(a) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) for controlling the price at which any essential commodity may be bought or sold,
(e) ... ... ...
(f) for requiring any person holding in stock, or engaged In the production, or in the business of buying or selling, of any essential commodity:
(a) to sell the whole or a specified part of the quantity heldin stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him to tell the whole or a specified part of such commodity when produced or received by him.
to the Central Government or a State Government or to an officer or agent of Government or to a Corporation owned or controlled by such Government or to such otter person or class of persons and in such circumstances as may be specified in the order.
Explanation 1 ... ...
Explanation 2 ... ...
In exercise of the powers conferred by sub-clauses (d) and (f) of Sub-section (2) of Section 3 of the Act read with the Notification of the Government of India in the Ministry of Agriculture and Irrigation (Department of Agriculture and Co-operation) Order No. 325/79 LDIL dated October 15, 1979, the State Government made the Order. The order will remain in force upto June 30, 1980 Cl (2) of the order deals with 'definition'. Sub. Cl (a) thereof defines 'cattle fodder'. According to that, 'cattle fodder' means cattle fodder as mentioned in the Schedule. Sub-clause (h) of Clause 2 of the Order defines 'Schedule'. It means the Schedule appended to the Order. Schedule makes mention of the following:
(a) Hay and Grass,
(c) Karb or Karbi of Gawer, Jawar and Bajra,
(d) Moth, Moth Chara, Moth Churi,
(e) Rice Husk
The Order was made as the State Government was of the opinion that it was necessary to do for maintaining and securing supples of fodder at fair price and for controlling movment of fodder within and out side the State. Gawar has been specifically mentioned as cattle fodder in the Schedule. There is no specific mention of either Gawar Churi or Corma.
8. In view of the arguments raised by the learned Counsel for the petitioner, the question that crops up for determination is whether Gawar at mentioned in the Schedule Includes Gawar Churi and Corma for the purpose of banning their export outside Rajasthan under the order. Section 2(a) of the Act defines 'essential commodity's According to this definition essential commodity', inter alia, means 'cattle fodder' and 'cattle fodder' which includes oil-cakes and other concentrates The Order defines 'cattle fodder' as mentioned In the Schedule. Gawar has been mentioned at item No. 2 In the Schedule, The 'fodder' has been defined In the Chambers 20th Century Dictionary as 'food supplied to cattle food'' Gawar has not been defined in the order. It is a grain (eyamoosis peoralicides), It may be mentioned that by a manufacturing process outer skin or husk is separated from the kernel which Is commercially, known as 'Gawar meal'. Gum is manufactured from the outer skin or husk After separation of outer skin or husk from the kernel, by manufacturing process. Corma and gawar churi are prepared. The inner portion 'Gawar meal'' is used as fodder for the cattle in India on account of its high protein content. After separation of the outer skin or husk from Gawar, what remains, from that Gawar Churi and Corma are prepared, In other words, Gawar churi and Corma are derivatives of Gawar. In Tungobhadra Insurance v. Commercial Tax Officer : 2SCR14 , it was held as under:
When raw grourddnut oil is converted into refined oil, there is no doubt processing, but this consists merely In removing from raw ground oil that constituent part of the raw oil which is not really oil The elements removed in the refining process consist of free fatty acids, phosphocides and sponifiable matter. After the removal of this non-oleic matter therefore the oil continues to be groundnut oil and nothing more The matter removed from the raw groundnut oil not being oil cannot be used, after separation, as oil or for any purpose for which oil could be used. In other words, the processing consists in the non-oily content of the raw oil being separated and removed rendering the oily content of the oil 100% For this reason refined oil continues to be groundnut oil within the meaning of Rules 5(1)(k) and 18(2) notwithstanding that such oil does not possess the characteristic colour, or taste, odour etc., of the raw groundnut oil
It was held in Ramavatar v. Assistant Sales Tax Officer : 1SCR279 , that the word 'vegetable' being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject with which the statute is dealing would attribute to it. 'The question raited before the Division Bench of the Allhabad High court in Omrao Industrial Corp. (P) Ltd. v. The Sales Tax Officer 1974 STC 343, was whether Deoiled rice bran used inter alia, as cattle fold was covered by the expression 'cattle fold' & was covered by the expression 'cattle fodder' and was exempted from ales tax. According to Notification No ST/911/x dated March 31, 1950, cattle fodder including green fodder was exempted from sales tax. On July 15, 1956, the State Government issued another notification modifying the earlier one and under it. 'cattle fodder including green fodder, churi, bhuski, Chhilka, chokar, cotton, seed gawar and oil-cake' were all exempted from tax. It was held that the de-oiled rice bran was covered by the expression ''cattle fodder' in the aforesaid notification and was, as such, exempted from sales tax. A learned single Judge of the Punjab and Haryana High Court in Express Dairy Company Limited v. Assessing Authority 1971 STC 87 has observed as under:
It is, thus, clear that the ''guar giri'' or the 'guar meal'' produced by the petitioners cannot be termed as flour of 'guara' as it is a pulverized substance, which is not In the fine powder form. It is a substance In the form of small crystals and is not produced as a result of grinding but as a result of the process which separates the outer portion from the inner one. It is really a bye product of the primary manufacturing process to which the whole grain is subjected for commercial process purposes. For this reason, it cannot be termed as 'guar flour'', nor can be taxed as such.
Gawar is popularly used' to feed cattle. Keeping in view the object of she Order recourse can also be made to the use to which Gawar and its derivatives are put.
9. Adopting the reasoning given in the aforesaid decisions of the Supreme Court, Allahabad and Punjab & Haryana High Courts, 1 am of opinion that Gawar and Churi and Corma are derivatives of Gawar and having regard to the manner In which they are prepared and used, they are included in Gawar which has been specified as cattle fodder In the Order. It, there fore, follows that Gawar Churi and Corma being derivatives of Gawar which is cattle fodder cannot be exported from Rajasthan to the areas out side the State. The validity of the Older has not been otherwise challenged. The argument of the learned Counsel for the petitioner is rejected. In view of the conclusion to which I have arrived at, the question of quashing the letter/order (Anx. A) in so fat as Gawar Churi and Corma dreconcerned, does not arise.
10. The writ petition fails and it is, accordingly, dismissed summarily.