DHANRAJ MILLS LTD Vs. B K KOCHER

JUDGEMENT

(1.) THE petition from which this appeal arises is an entirely hopeless one and Mr. Pritt with all his ingenuity has tried to make it as presentable as possible. The petitioners are the Dhanraj Mills and they used in their mills imported foreign cotton of two varieties, Kampala and Tan-ganyika. A control has been imposed by the Govt. of India on the sale of cotton and mills can only receive cotton as permitted by the various Control Orders issued from time to time by the Govt. of India. The grievance made by the petitioner in his petition is that he was allocated by resp. I who is the Deputy Chief Controller, certain bales of cotton of the Kampala and Tanganyika varieties for the yeara 1948-1949. This allocation was made on the hasis of the consumption of the mills of this cotton for a period of three years ending with December 1942. The petitioner applied for allocation of these two varieties of cotton to resp. l also for the years 1949-1950 and, without going into figures, broadly the petitioner's contention is that he has been allocated cotton of the Kampala and Tanganyika varieties which is less than what he applied for and to which he was entitled. His further contention is that resp. 1 reserved for the use of the Govt. of India more cotton of the Tanganyika variety than of the Kampala variety. As it happens, the petitioner used more cotton of the Tanganyika variety than of the Kampala variety and, therefore, his share of the Tanganyika cotton was less than what he applied for. His further grievance is that even with regard to the Tanganyika variety he has received less than he was entitled to according to his quota, even on the assumption that the reservation made of the Tanganyika variety by resp. 1 was a proper reservation. He has also made an allegation, not very clearly, nor very explicitly, but still the suggestion is there that resp. 1 has been advised in making the allocation by a committee called the Indian Cotton Import Advisory Commitee and the majority of the members of this Committee are consumers of Kampala cotton and therefore, it was to their advantage that there should be more reservation of the Tanganyika variety rather than of the Kampala variety. On these facts the petitioner asked for a writ in the nature of mandamus against the resps. and in the alternative any appropriate order or direction under Art, 226 of the Constitution.

(2.) MR. Pritt, who opened the appeal before us, argued it on the assumption that all the facts pleaded in the petition had been established. We asked him to argue as if he was arguing on a demurrer because we felt that it would be difficult for Mr. Pritt to substantiate his case that even if all the facts alleged by him had been established he was entitled to any relief on this petition. In opening the appeal Mr. Pritt drew our attention to the Cotten Control Order of 1949 issued by the Central Govt. in exercise of the powers conferred upon it by Section 3, Essential Supplies (Temporary Powers) Act of 1946, and he relied on Clause 14 of that Order which provides that the Textile Commissioner may, with a view to securing a proper distribution of cotton or with a view to securing compliance with this Order, direct any person holding a stock of cotton or any class of such persons to sell to such person or persons such quantities of such description of cotton as the Textile Commissioner may specify, and the rather seemingly attractive argument advanced by Mr. Pritt was that the expression "may" in Clause 14 should be read as "must", that there was a statutory obligation upon the Textile Commissioner to allocate to the petitioner certain bails of cotton according to his requirements, and the Textile Commissioner having failed to discharge his statutory obligation, the Court was entitled to issue a writ of mandamus against the Textile Commissioner ordering him to allocate certain bales of cotton to the petitioner. In the alternative Mr. Pritt contended that even if no obligation could be spelt out in the language used in Clause 14, there was an obligation upon the Textile Commissioner to act in conformity with Article 14 of the Constitution, and inasmuch as the allocation made by him constituted an unfair discrimination against the petitioner, his order was contrary to Article 14, the petitioner's fundamental right was violated, and he was entitled to come to this Court.

(3.) WE were preparing ourselves to answer these ingenious arguments, when Mr. Maneksha drew our attention to the fact that this particular Order on which Mr. Pritt relied had no application whatever to the facts set out in the petition or the grievance made by the petitioner in his petition. It seems that the allocation that has been made from time to time of East African cotton in favour of the petitioner has not been done under Clause 14 of this order at all. It is perfectly true that the Textile Commissioner has powers under this Order to allocate cotton both of the indigenous variety and of foreign variety, but in fact the Textile Commissioner has not been exercising his powers under this clause in reapect of imported cotton. With regard to im ported cotton, the control is exercised under a different piece of legislation altogether. We have on the statute book Act XVIII (18) of 1947, and Section 3 of that Act provides that the Central Govt. may, by order published in the official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order and among other things import and export of goods of any specified description; and exercising their power under this section the Central Govt. have promulgated an Order which is known as Import Trade Control Order, on 6-3-1948, and this Order provides that any officer issuing a license under Clauses (viii) to (xiv) of the Notification of the Govt. of India dated 1-7-1948, may issue the same subject to one or more of the conditions stated below, and one of the conditions is that goods covered by the license shall not be disposed of or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it. Turning to the Notification of 1-7-1943, that was a Notification issued under the Defence of India Rules and that prohibited the bringing into British India by sea, land or air from any place outside India of any goods of the description specified in the schedule in that Order and when we turn to the schedule we find that raw cotton was one of the articles which was so prohibited. It is reap. 1 who, acting under this Import Trade Control Order of 6-3-1918, issues licenses to various persons in Bombay permitting them to import raw cotton from Bast Africa and one of the conditions that he imposes, upon the persons to whom he issues licenses is that they will not dispose of or otherwise deal with the cotton imported by them without his written permission. He, therefore, directs these license holders to sell the cotton imported by them to various mills specified by him. Having ascertained from the petitioner what his requirements were from year to year and taking into consideration the requirements of different mills in Bombay, resp. 1 then calls upon various license holders to sell cotton to different mills. Therefore, what the petitioner chooses to call an allocation under Clause 14, Cotton Control Order, is in reality not an allocation made by the Textile Commissioner at all, but is the privilege given to him to purchase from the license holders cotton permitted by resp. 1. If these be the true facts and if this be the law which is applicable to the facts of the case, it is difficult to understand how the petitioner can make any grievance of the fact that resp. 1 has not asked a particular license holder to sell a particular quantity of cotton to the petitioner. It is not suggested that there is any statutory obligation upon resp. 1 to insist upon any particular license-holder to sell any particular quantity of cotton to the petitioner. Not only is there no statutory obligation upon resp. 1, but there is not even any right in the petitioner to insist upcn obtaining any particular quantity from resp. 1 or from anyone else. In this connection it may be desirable to see the form of the bond which the petitioner has to sign when he makes an application for the allocation of certain quantity of cotton which he has to state as his requirement. In this form of the bond he agrees and undertakes to accept any allotment of African cotton that may be made to him up to the quantity specified by the petitioner. Therefore, the obligation upon the petitioner is to accept any quantity given to him by resp. 1. Only the top limit is laid down which is his requirement. There is no obligation upon him to accept anything more than what he has himself asked for. But there is no bottom limit laid down in the allocation which resp. 1 might make in his favour. He must accept whatever is allotted to him. Therefore this letter of undertaking signed by the petitioner makes it clear that it is left entirely to the discretion of resp. 1 to allot to him such cotton as he thinks proper. This letter also clearly shows that there is no right in the petitioner to insist upon obtaining the full quota as asked for by him when he made his application setting out his requirement,