KRIPARAM GANESHILAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners in the 39 writ petitions before us are grain dealers carrying on business at various places in Rajasthan and they seek writ, order, or directions in the nature of mandamus against the State of Rajasthan and other respondents for ordering them to permit the petitioners to export from out of Rajasthan quantities of foodgrains equivalent to that supplied by them to the various Collectors in accordance with the provisions of Clause (3) (a) of the Rajasthan Gram and Barley (Regulation of Distribution) Order, 1964, (hereinafter for the sake of convenience to be referred to as the "gram--Barley Order. 1964" ). As the writ petitions raised identical questions they can conveniently be disposed of together.

(2.) IN a nutshell the case set up by the petitioners is that when they sold to the collectors the quantity of grain equivalent to what they proposed to export out of rajasthan and for which they obtained necessary certificates from the Collectors under the Gram-Barley Order 1964, they acquired an indefeasible right to export the grain and the respondents were thereby put under an obligation to allow them to do so and as the respondents were not respecting that obligation, according to the petitioners, they were entitled to the relief prayed for. Before we enter into facts and deal with the several contentions raised before us it will be convenient to set out the relevant provisions of the Control Orders for a proper understanding of the case advanced by the petitioners

(3.) IT is a matter of history that Indian economy came under heavy stress during the second world war and the situation thereby created led to introduction of controls of commodities essential to the life of the community. The orders regulating supply and distribution of foodgrains wore made under the then defence of India Rules. Even after the second world war came to an end the controls were continued in some form or the other under the Essential Supplies (Temporary Powers) Act. 1940 This Act which was of temporary duration came to be replaced by Essential Commodities Act. 1955. Our economy showed some improvement in the years that followed this Act and there was relaxation of controls though with the Essential Commodities Act, 1955, the Government retained its powers to impose the controls at any time Then came the emergency created by the aggression committed by a neighbouring country on our Himalayan frontiers. This put our economy under still heavier strain, and to meet the emergency the Defence of India Act, 1962, was enacted by the Parliament and also pursuant to the declaration of emergency by the President under Article 358 of the Constitution some fundamental rights including one under Article 19 of the constitution were suspended during the period of emergency which unfortunately is still continuing. In exercise of the powers under the Defence of India Act the central Government made the Defence of India Rules 1962 Rule 125 empowers the Central Government or the State Government for the purposes of securing the defence of India, and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices, to issue orders providing for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles, things and trade and commerce therein and in exercise of these powers the government was empowered to provide for issuing of licences, permits, or otherwise for the production, manufacture, treatment, keeping storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever Thus during the period of emergency the Government can claim to have powers both under the Essential commodities Act, 1955, and under the Defence of India Act, and the rules thereunder to impose controls over essential commodities. Section 3 of the essential Commodities Act, 1955, empowers the Central Government to issue orders for maintaining or increasing supply of any essential commodity or for securing their equitable distribution and availability and under Section 5 the central Government could delegate its powers to the Slate Government or any officer. In exercise of these powers delegated to it by the Central Government the government of Rajasthan made the Gram-Barley Order, 1964, on 7th May 1964. This order was suspended so far as it related to gram either whole or split through the Rajasthan Gram (Prohibition of Export) Order. 1964, which came into force on 20th October 1964 This last mentioned order remained in force only till 23rd december 1964. The Gram Barley Order. 1964, was amended from time to lime and we need not go into the details of the Several I amendments but the Gram barley Order, 1964, as was in force in August 1965, the relevant time for the instant cases, came into force on 9th April 1965. It will be sufficient to say that to start with the only restriction on a person desiring to export gram or barley was that the quantity that be wanted to export should not have exceeded 25 per cent of the quantity held in stock at the commencement of the Order The first amendment introduced some change in the percentage and since 9th April 1965 the matter was governed by Clause (3) (A) of the Gram-Rarley Order 1964, which runs as under: