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Pokar Chand Jeevraj and 11 ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 892, 931, 968 to 976 of 1981
Judge
Reported in1981WLN561
AppellantPokar Chand Jeevraj and 11 ors.
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredOrs. v. State and Ors.
Excerpt:
.....violative of the petitioner's right to trade. if the notification is viewed even in the light of clause 12, the time allowed to the dealers under the impugned notification clearly appears to be insufficient and unreasonable. shishodia, learned government advocate, submitted that the two cases relied upon by the learned counsel for the petitioners, are the cases, which are clearly distinguishable. this petitioner has given its average stocks and as well as average daily sale and considering the stock and the daily sale, it was not possible for the petitioner to dispose of its stock to bring it to the maximumlimit. most of the petitioners have also given their opening stocks as well as the closing stocks on 26-5-1981 and all the petitioners have averred that despite all possible efforts,..........not deal with running business. the dealers can continue to run their business within the maximum limit of stocks and time given is to be judged in this light.8. for appreciation of the controversy, it would be proper to read the impughed notification, which is as under:'government of rajasthan(food & civil suppies department)notificationjaipur, dated 23-5-1981s.o. in exercise of the powers conferred by sub-clause (ii) of clause 18 of the rajasthan trade articles (licensing & control) order, 1980, the state government with prior concurrence of the central government here by fix the maximum limit of 200 quintals of wheat to be possessed by a dealer at any one time.it shall come into force with effect from 27th may. 81.no. 17(iii) f/s/legal/8dby order of the governersd.(r.p. nag)dy......
Judgment:

M.C. Jain, J.

1. The petitioners in these writ petitions are wholesale dealers in wheat. The State Government with the prior concurrence of the Central Government, issued Notification Ex. I dated 23-5-1931 in exercise of the powers conferred by Sub-clause (ii) of Cause 18 of the Rajasthan Trade Articles (Licensing and Central) Order, 1930 (here in after referred to as 'the 1980 Order') fixing the maximum limit of 200 quintals of wheat to be possessed by a dealer at any one time. The notification came into force with effect from 27th May, 1981. The petitioners have challenged the validity of the aforesaid notification of the State Government inter-alia on the ground that the time given for reducing the stock of wheat upto 200 quintals by 26th of May, 1981, was highly unjust, unreasonable and insufficient. The petitioners' case is that inspite of best of efforts on their part, it was not possible for them to dispose of their existing stocks within the time given to the petitioners under the said notification. According to Messrs. Pokorchand Jeevraj (S.B. Civil Misc. Writ Petition No. 892/81) the petitioner came to know of the aforesaid notification when it was published in the 'Rajasthan Patrika' on 25-5-1981 and some of the other petitioners in their respective writ petitions, have likewise averred. In Writ Petition No. 968/81 to 976/81 and No, 984/81 the petitioners have also averred that the market was closed on 24-5-1981, as it was Sunday and they have further averred that during those days, the Railway loading was closed. These petitioners are from Ganganagar District, which is essentially a wheat producing area. The petitioner Messrs. Pokarchand Jeevraj in its writ petition averred that for the last 2-3 months it was having a daily stock of 5,000 to 7,000 quintals of wheat. In these months his daily average sale was 300 to 400 quintals wheat. It used to send wheat for sale outside Jodhpur and used to sell wheat to dealers locally. Thus, the case of all the petitioners is that inspite of all possible efforts it was not possible for the petitioners to bring down their stocks to the maximum limit fixed by the aforesaid notification. The petitioners have alleged that having regard to the time given under the notification, the notification has placed unreasonable and unjust restriction on the petitioners' right to trade and the notification is essentially confiscatory in the nature, if viewed in the light of the time provided to the dealers. The petitioners have prayed that the notification being violative of the petitioners' right to trade, may be struck down being unconstitutional.

2. Returns to the writ petitions have been filed by the respondents, in which it was averred that by publishing the notification in the Gazette as well as by radio broadcasting on 23-5-1981 in the evening, it was made publicly known The respondents refuted the grounds on which challenge to the validity of the notification has been made by the petitioners and it was averred that the petitioners have not shown as to what efforts were made by them to dispose of their stocks and further the petitioners have not shown as to what has been their in-take and out-delivery of wheat between the period from 23-5-1981 to 26-5-1981. According to the respondents, time given to the dealers, was sufficient and the notification is perfectly valid and reasonable.

3. I have heard Shri H.M. Parekh, Shri ML. Garg, and Shri L.M. Lodha, learned Counsel for the petitioners, and Shri D.S. Shishodia, Government Advocate, for the respondents.

4. The principal challenge to the notification on behalf of the petitioners is that the time given in the notification is most insufficient arid unreasonable, in which it was not possible for the dealers to reduce their stocks to the maximum limit despite best efforts on their part, so on this ground the notification is violative of the petitioner's right to trade. The learned Counsel for the petitioners supported their contention by placing reliance on a decision of tins Court in Gordhan Lal Ramgopal and 31 Ors. v. State and Ors. 1975 W.L.N. 821, in which reference has been made to a decision of the Supreme Court in Oudh Sugar Mills Ltd., etc. v. Union of India and Ors. : AIR1970SC1070 . The learned Counsel for the petitioners also referred to Clause 12 of the 1980 Order, which provides that when a licence under this Order is cancelled or suspended, the stocks of trade articles available with the dealer at the time of such cancellation or suspension, shall be disposed of by him within 15 days from the date of receipt of the order of cancellation or suspension. The learned Counsel for the petitioners submitted that under Clause 12 when the licence is suspended or cancelled, the dealer is given 15 days time to dispose of his available stocks. If the notification is viewed even in the light of Clause 12, the time allowed to the dealers under the impugned notification clearly appears to be insufficient and unreasonable.

5. Mr. D.S. Shishodia, learned Government Advocate, submitted that the two cases relied upon by the learned Counsel for the petitioners, are the cases, which are clearly distinguishable. He submitted that in Gordhan Lal Ramgopal's case supra an amendment order was enforced immediately and no time was given. In that case by clause 4A Para 3 of the Rajasthan Foodgrains (Prevention of Hoarding) Amendment Order, 1973 (hers in after referred to as 'the Amendment Order, 1973) it was provided that no person shall have in his possession at any one time, all foodgrains taken together in quantity exceeding 150 quintals. As no time was given to bring down the existing stocks, it was held tint the Amendment Order was violative of Article 301, as Article 19 was suspended at that time.

6. As regards the other decision, referred to above, Shri Shri Shishodia submitted that their Lordships of the Supreme Court considered the time of 26 days as unreasonable in the light of the facts as appeared in that case. He submitted that, that was a case where restriction was placed on the producers for bringing down their stocks. Shri Shishodia mentioned the facts appeared in that case that the producers after the promulgation of the Order entered into contracts with the dealers for the sale of sugar. They also, applied for railway wagons for transport of sugar to the States outside their own. Most of the sugar released for open sale was removed from their godowns within the time prescribed, but each of the appellants was not able to put into open market a fraction of the sugar released for sale in the open market as the railway wagons were not made available to them in time. Thus, it was satisfactorily proved that the producers have taken every possible step to dispose of the sugar. If they were not able to dispose of some portion of the sugar released, it was not due to any fauit of theirs. It is in these circumstances that the time given was held to be unreasonable. Shri Shishodia pointed out that such a case h not made out by the petitioners in these writ petitions and so it may not be found that the time given in the notification is unreasonable. He vehemently urged that the petitioners have also not given figures of their in-take and out-delivery, so as lo know as to whether the petitioners during the intervening time purchased fresh stocks in such a quantity, so that it any have become impossible for the petitioners to reduce their stocks of the prescribed limit Thus, in the absence of necessary data, according to Shri Shishodia, the finding may not be reached that the time given under the notification is unreasonable.

7. Shri Shishodia also submitted that clause 12 of the 1980 Order is not relevant as that clause deals with a situation when the licence is suspended or cancelled and it does not deal with running business. The dealers can continue to run their business within the maximum limit of stocks and time given is to be judged in this light.

8. For appreciation of the controversy, it would be proper to read the impughed Notification, which is as under:

'GOVERNMENT OF RAJASTHAN

(FOOD & CIVIL SUPPIES DEPARTMENT)

NOTIFICATION

Jaipur, dated 23-5-1981

S.O. In exercise of the powers conferred by Sub-clause (ii) of clause 18 of the Rajasthan Trade Articles (Licensing & Control) Order, 1980, the State Government with prior concurrence of the Central Government here by fix the maximum limit of 200 quintals of wheat to be possessed by a dealer at any one time.

It shall come into force with effect from 27th May. 81.

No. 17(iii) F/S/Legal/8D

By Order of the Governer

Sd.

(R.P. Nag)

Dy. Secretary to the Govt.'

9. The main question, which emerges for consideration, in these writ petitions, is as to whether the time provided in the notification is reasonable for the dealers to bring their stocks to the maximum limit provided under the notification. Sufficiency or insufficiency of time, no doubt, has relation with the existing stocks and further it has relation with the average daily sale of each dealer and this factor too is relevant as to whether in the intervening time, there has been any acquisition of stocks to such an extent, which might have rendered reduction to the maximum limit impossible. All these factors are, no doubt, relevant and they have factual aspects, but still the matter can be viewed in the light of the three days time given to the dealers under the notification. Had the time been stretched to a larger period, perhaps all these above mentioned factors would have been more relevant. In the case of the petitioners in writ petitions No. 968/81 to 976/81 & 984/81, the petitioners have averred that on 24-5-1981 the market was closed, as 24-5-1981 was Sunday and they have further averred that transport through railway, was not possible, as the railway loading was closed. In the case of the petitioner Messrs. Pokarchand Jeevraj some reasons have already been stated above. This petitioner has given its average stocks and as well as average daily sale and considering the stock and the daily sale, it was not possible for the petitioner to dispose of its stock to bring it to the maximumlimit. Most of the petitioners have also given their opening stocks as well as the closing stocks on 26-5-1981 and all the petitioners have averred that despite all possible efforts, they could not dispose of the stacks to reduce it to the maximum limit. This statement made by the petitioners, in the circumstances, does not appear to be untrue and on that basis it can legitimately be found that the time given in the notification fir bringing the stock to the maximum limit, was unreasonable. It is true that the two cases 'cited by the learned Counsel for the petitioners are distinguishable on facts. In the Rajasthan case no time was given and in the Supreme Court case 26 days time given to the producers was held to be unreasonable in the light of the facts end circumstances that appeared in that case, but if the facts and circumstances of the present cases are considered, this can be the only just and reasonable conclusion that the time given in the notification too, is unreasonable, so the principles of both these cases apply to the present cases, as well. Farther Clause 12 of the 1980 Order, in my opinion, does throw some light an the question of reasonable time to be allowed to the dealers to bring down their stocks. It is true that Clause 12 deals with the situation when licence is cancelled or suspended and the dealer has to completely stop the business, but in that case 15 days time has been allowed. Even when the business is allowed to run, within a certain stock limit, still the time to be given to the dealers to bring down their stocks, should be a reasonable time and three days time cannot be considered to be reasonable. Sufficiency of time and reasonableness of time appear to be two different matters. The time given may be reasonable, but may be insufficient then on that basis, the notification is not liable to be struck down. But it is not so in the present case. In this view of the matter, the impugned notification deserves to be struck down as having placed unreasonable restriction on the petitioners right to trade.

10. In view of the fact that the writ petitions succeed on the above ground alone, it is not necessary to go into the other grounds.

11. In the result, the writ petitions are allowed and the impugned notification of the State Government dated 23-5-1981, is quashed. The necessary consequences there of shall follow. However, in the circumstances of the case, the parties shall bear their own costs.


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