- (1.) This writ petition by one Mannalal Jain was originally filed on October 17, 1960, and the order complained of was dated September 13, 1960. This was an order made by the Deputy Commissioner, Kamrup, Gauhati, rejecting an application made by the petitioner for the grant of a license for the year 1960 for dealing in rice and paddy under the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960. This writ petition was put up for hearing in this Court on February 2, 1961 The hearing was, however, adjourned sine die, because it was stated before us that the period of license for 1960 had already expired and a fresh application would have to made for a license for 1961. A fresh application was accordingly made by the petitioner on February 4, 1961. But before that date a fresh Assam Foodgrains (Licensing and Control) Order, 1961, was made by the Governor of Assam and the application made by the petitioner had to be dealt with under the new Order. No order having been made on this fresh application by the Deputy Commissioner, the petitioner moved this Court by means of a petition (C. M. P. No. 850 of 1961) asking for certain reliefs, one of which was that the respondents, namely, the licensing authorities should be directed to consider the application of the petitioner and grant him a license. On April 11, 1961, an order was made rejecting the application of the petitioner. This order which is impugned before us was in these terms : "Having regard to the existing licenses in these areas (Mangaldai and Gauhati), and the quantity of foodgrains available therein, any further license would be superfluous". When the petition was again put up for hearing on May 1, 1961, the petitioner asked for time to amend his original petition which related to the order refusing to grant him a license for 1960. This amendment became necessary by reason of the subsequent order passed on April 11, 1961, quoted earlier, by which the petitioner's application for a license for 1961 was rejected. This amendment was allowed. Therefore, we have now to deal with the writ petition as amended by the petition dated May 5, 1961 (C. M.P. No. 1140 of 1961).
(2.) It is necessary now to state the relevant facts out of which the petition has arisen. The petitioner states that he is an Indian citizen carrying on a business dealing in rice and paddy in the district of Kamrup in the State of Assam. In 1955 was enacted the Essential Commodities Act, 1955 (Act 10 of 1955). In exercise of the powers conferred by S. 3, of the said Act, read with a notification by which the said powers were delegated by the Central Government to the Government of Assam, the latter Government made an Order called the Assam Foodgrains (Licensing and Control) Order, 1958. The result of this was that no dealing in rice and paddy in wholesale quantities was permissible unless the petitioner obtained a license from the relevant licensing authority. The petitioner states that he obtained such a license in 1958. This license expired on December 31, 1958. The case of the petitioner is that in 1959 also he carried on his business though there is some dispute as to whether he obtained a license for that year. On November 26, 1959, the petitioner received a letter from the office of the Deputy Director of Supply, Gauhati, which said that his license would not be renewed after December 31, 1959. This communication, it is stated, was the result of a decision taken by the Government of Assam on the advice of a body called the Food Advisory Council to give a right of monopoly procurement of paddy to a co-operative society in the district of Kamrup known as the Assam Co-operative Apex Marketing Society Ltd. (respondent No. 6 before us). In a letter dated November 13, 1959, the Director of Supply, Assam, indicated the policy to be followed to give effect to the decision aforesaid in these terms : "The right of monopoly procurement in respect of Kamrup district including Mangaldai Sub-division, Taxpur Sub- division, Cachar district, Nowgong district including United Mikir and North Cachar Hills and North Lakhimpur Sub-division has been given to the Co-operative Apex Marketing Society. The Society will procure paddy from the growers though various service Co-operative Societies spread over the district or sub-division. They will procure all available surplus paddy and deliver to Supply Department the quantity required for the buffer stock for those areas. Any paddy procured by them which is not required by us may be delivered to the mills." A copy of the letter was forwarded to all licensing authorities. On January 5, 1960, the Assam Foodgrains (Licensing and Control) Order, 1960, came into force. This replaced the earlier Order of 1958. Clause 5 of the 1960 Order was in these terms : "5. Matters to be taken into consideration for granting a license. - In granting or refusing a license under this Order, the licensing authority shall among other matters have regard to the following, namely :- (a) the stock of foodgrains available in the locality for which the license is required; (b) the number of persons who have applied for and/or been granted licenses in respect of the foodgrains under this Order in the locality; (c) the business ordinarily carried on by the applicant; and (d) the past activities of the applicant as a licensee or business man/firm. Provided that the State Government may from time to time modify the conditions for granting a license." On January 28, 1960, the petitioner made his application for a license for the year 1960. This application was rejected by an order dated February 17, 1960. The reason given for the rejection was in these terms : "You are hereby informed that as the Co-operative Apex Marketing Society has been given the right of monopoly purchase in the Kamrup district this year, your case cannot be considered for issue of the license." This reason was obviously based on the decision as to monopoly procurement which the Government of Assam had adopted.
(3.) Against this order the petitioner moved the High Court of Assam by means of a writ petition under Art. 226 of the Constitution. The High Court allowed the petition mainly on the ground that the application of the petitioner for a license for the year 1960 was not considered on merits by the licensing authority in accordance with the provisions of Cl. 5 of the Assam Foodgrains (Licensing and Control) Order, 1960. The High Court did not go into the larger question whether the State could or could not create a monopoly in the matter of procurement of paddy under the said provisions by means of executive instructions issued to the licensing authorities. It, however quashed the order dated February 17, 1960, and issued a writ of mandamus directing the licensing authority to consider the application of the petitioner on merits and in accordance with the provisions of the aforesaid Control Order. Till June 7, 1960, no order was passed by the licensing authority, and on that date the petitioner made two applications to the High Court, one for directing the licensing authority to grant him a license for 1960 and the other for taking action for contempt of court. A notice of these applications, it is stated, was served on the respondents. On June 8, 1960, the licensing authority made another order refusing to grant a license to the petitioner. This order stated that "as the Assam Co-operative Apex Marketing Society Ltd. had already, been granted a license to deal in rice and paddy, with its branches spread all over the district, it was considered unnecessary to grant further dealing licenses to individual dealers for the same area." On June 9, 1960, the applications earlier made by the petitioner to the High Court on June 7, 1960, were withdrawn and a fresh application was made on June 15, 1960, which was directed against order dated June 8, 1960. On August 10, 1960, the High Court again set aside the order and directed the licensing authority to act independently of instructions received from the Government and to apply its mind to the merits of the application and decide it in accordance with the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960, Again, no orders were made by the licensing authority till September 8, 1960, in accordance with the directions of the High Court, and the petitioner made two applications on that date : one for enforcing the direction of the High Court, and the other for initiating proceedings in contempt. These applications were admitted and it is stated that notices were served on the respondents, including the licensing authority, on that very date. On September 13, 1960, the licensing authority made another order, again rejecting the application of the petitioner. This order stated inter alia: "For the areas for which the applications have been made the Assam Co-operative Apex Marketing Society Ltd. has earlier applied for and has been granted license. This is a relevant consideration under Clause 5(b) of the Assam Foodgrains (Licensing and Control) Order, 1960, The stock of foodgrains available in the area can easily be procured by the party already given license. Being a co-operative, it has better facility in this respect. As such, I do not find it necessary to grant license to the applicant. The petition is, therefore, rejected.";