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Ratan Chandra Nayak Vs. Adhar Biswas - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 532 of 1951
Judge
Reported inAIR1952Cal72,56CWN302
ActsConstitution of India - Articles 19 and 226; ; Specific Relief Act - Sections 45 and 46; ; West Bengal Rice Mills Control Order, 1949
AppellantRatan Chandra Nayak
RespondentAdhar Biswas
Appellant AdvocateS.K. Das, ; Manishi Kumar Das and ; Chhittaranjan Das, Advs.
Respondent AdvocateJagneswar Majumdar and ; Smriti Kumar Rai Chodhury, Advs.
DispositionPetition dismissed
Cases ReferredP. K. Banerjee v. L. J. Simonds
Excerpt:
- .....of mandamus directing the respondent to issue a license to the petitioner under the west bengal rice mills control order, 1949, for running a mill for the purpose of husking paddy.2. the petitioner is the proprietor of a husking machine known as bani rice mill situated at village gograash, p. o. raghunath bari, in the district of idnapore.3. the petitioner had a license for the purpose of running his mill being license no. 395 m.d.r., dated 19-3-1947 issued to him under the bengal rice mills control order, 1943.4. the said control order of 1943 was repealed in 1949 by the west bengal rice mills control order, 1949 which came into force on 21-12-1949. the control order of 1949 provided that persons who were engaged in the business of milling rice were to take out a license under the.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226, of the Constitution for a writ in the nature of Mandamus directing the respondent to issue a License to the petitioner under the West Bengal Rice Mills Control Order, 1949, for running a Mill for the purpose of husking paddy.

2. The petitioner is the proprietor of a husking machine known as Bani Rice Mill situated at Village Gograash, P. O. Raghunath Bari, in the District of idnapore.

3. The petitioner had a license for the purpose of running his Mill being License No. 395 M.D.R., dated 19-3-1947 issued to him under the Bengal Rice Mills Control Order, 1943.

4. The said Control Order of 1943 was repealed in 1949 by the West Bengal Rice Mills Control Order, 1949 which came into force on 21-12-1949. The Control Order of 1949 provided that persons who were engaged in the business of milling rice were to take out a License under the Control Order 1949 within a month of the commencement of the Order. By a subsequent Notification the period of one month as provided in the Order was extended up to 31-3-1950 making the old license valid up to that date. On 21-1-1950 the petitioner made an application for issue of a license for one year under the Control Order 1949, & deposited the License fee of Rs. 50/- for the purpose. Permits were also issued under the Control Order to local consumers for getting their paddy husked at the petitioner's Mill & such permits enabled the petitioner to husk paddy for these consumers. The last of such Permits was issued on 14-3-1950 & remained in force till 14-6-1950.

5. It appears that although the old license of the petitioner expired on 31-3-1950 he continued to carry on his business of husking paddy without obtaining a License from the Department concerned & he was also detected delivering husked rice to some persons without any permit after the last permit which was valid up to 14-6-1950 had expired. The petitioner was at once prosecuted under Section 7 (1), Essential Supplies (Temporary powers) Act, & ultimately on 28-12-1950 he was convicted & sentenced to pay Rs. 25/- or in default 2 days' rigorous imprisonment.

6. On 12-3-1951 the petitioner moved this application for a Rule Nisi & such Rule was granted by this Court.

7. The petitioner at the hearing has only pressed for the relief for the issue of a License & has not pressed for the other reliefs in view of my judgment delivered on 11-4-1951 in Civil Revision Case No. 346 of 1951.

8. It is argued by Mr. Jogneswar Mazumdar, the Assistant Govt. Pleader that the petitioner has suppressed material facts in the petition & has thus disentitled himself to get any relief in this application. This contention does not appear to be without any substance. In the petition there is no mention of the fact that the petitioner was prosecuted for the contravention of the Control Order & was convicted for such contravention. The petitioner also asked for liberty to file a Supplementary affidavit & he has filed such supplementary affidavit in support of his petition. In this affidavit also there is no mention of this fact. It is clear that the petitioner has deliberately suppressed this very material fact in his petition as he realised that mention of this fact in the petition would create difficulties in the way of his getting a Rule Nisi issued from this Court. In 'Rex v. Kensington Income-tax Commissioners' (1917) 1 K.B. 486 at p 509 Lord Warrington made the following observations:

'It is perfectly well-settled that a person who makes an ex-parte application to Court is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge & if he does not make that fullest possible disclosure, then he cannot obtain any advantage which he may have already obtained by means of the Order which has thus wrongly been obtained by him. That is perfectly plain & requires no authority to justify it.'

9. This principle has been quoted with approval by Panckridge J., in the case of 'Indumati Debt v. Court of Wards', 42 C. W. N. 230 & has been held applicable to applications for prerogative writs.

10. The present petition must therefore fail on this ground alone.

11. It further appears that although the petition seeks issue of a writ of mandamus it is not verified by the affidavit of the petitioner but it has been verified by the affidavit of the Tadbirkar , of the petitioner. In the case reported in 'Surendra Nath v. State of West Bengal', 55 C. W. N. 255, Harries, C.J., & Banerjee, J., have held that the English principles of the prerogative writ of mandamus as embodied in Sections 45 & 46, Specific Relief Act, should be followed in applications for mandamus under Article 226. Though there is no ?general observation to that effect in the judgment of the learned Chief Justice yet that is the effect of that judgment. In 'P. K. Banerjee v. L. J. Simonds'. A. I. B. (34) 1947 Cal. 307 at p. 317, Gentle J.', held that an affidavit by a manager was not a sufficient compliance with Section 46, Specific Relief Act, & the application was not maintainable. This petition must therefore fail on this ground also.

12. It was contended by Mr. Sisir Das, learned counsel for the petitioner that the very system of Licenses as contemplated by the West Bengal Rice Mills Control Order 1949 is unreasonable as it imposes restrictions on the right to carry on trade or business freely as guaranteed by Article 19 of the Constitution. Mr. Das has further contended that in any event para 11 of the Rice Mills Control Order is unreasonable & bad as it vests the Commissioner with absolute or unfettered discretion in the matter of granting renewal of licenses. I do not think that these contentions have any force. The observations made by me with regard to the System of Permits in the case of 'Anumati Sadhukhan V. A. K. Chatterjee', A.I.R. ,(38) 1951 Cal. 90 at p. 92, are equally applicable jto the System of Licenses. If the Govt. of the Country is not allowed to regulate or control the carrying on of the trade or business of the country the result will be complete chaos. The people will be left at the mercy of a handful of traders & (businessmen & all sorts of unfair practices are bound to grow up. The public interest requires that the Govt. should retain its control of the 3 trade & commerce of the country. The individual {interest must yield to what is for the general 'good.

13. Now once it is established that the System of Licenses is a reasonable system the discretion to grant or refuse the license must of necessity be vested in some Authority & such discretion must be absolute in character. If a discretionary power is hedged round with restrictions or limitations it ceases to be a matter of discretion. The mere fact that the exercise of the discretion cannot be reviewed by the Court is no ground for declaring para 11 of the Control Order as invalid. If the power is abused or if the discretion is arbitrarily exercised it can always be set right by the Court for as I have pointed out repeatedly an arbitrary exercise of discretion is no exercise at all.

14. So far as the merits are concerned the true facts appear to be that after the prosecution of the petitioner for contraventions of the Rice Mills Control Order ended in his conviction on 28-12-1950 the petitioner did no approach the Authorities any more for issue of a license to him as he perhaps despaired of getting any license after his conviction. It is denied in the counter-affidavit that there was any demand or refusal before this application for mandamus was made. The petition only sets out vaguely that the renewal of license was refused (Para 8). The petition does not set out clearly that any demand for performance preceded this application for prerogative writ.

15. In my view this petition must fail. The Rule is discharged with costs. The hearing fee is assessed at three gold mohurs.


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