Sinha, J. - (1.) This is a rule issued upon the Opposite Parties to show cause why the directive dated 31-12-1052 served upon the petitioner under the West Bengal Foodgrains (Intensive Procurement) order 1952 (hereinafter referred to as the 'order'), should not be cancelled or why a writ in the nature of mandamus should not issue directing them to forbear from giving effect to the same.
(2.) The facts are briefly as follows: The petitioner is a private limited company incorporated under the Indian Companies Act. Amongst other things, it carried on farming. On or about 12-11-1952, a notice dated 5-11-1952 was served upon the petitioner under the said order in Form 'Ka' (equivalent to Form 'A') in the Bengali language. As this notice has been attacked, I shall deal with it more fully later on. Pursuant to this notice in Form 'Ka', the petitioner filed a declaration in Form 'Kha' (equivalent to Form 'B') on or about 13-11-1952. That is also in the Bengali language. On 12-1-1953, the petitioner was served with a directive in Form 'C' calling upon the petitioner to sell and deliver 1528 mds. 5 seers of paddy which had been determined as the 'available surplus'. The petitioner objected to delivering the paddy and has taken out this Rule on 19-1-1952. The petitioner however has not preferred an appeal as provided for by the order.
(3.) A preliminary objection has been taken on behalf of the opposite parties that there is no averment of any demand of justice having been made and its refusal, although the petitioners are asking for the issue of a Writ in the nature of Mandamus. This is a matter which is now well-settled and such averments have been held to be essential. In 'Surendra Nath v. State of West Bengal', it has been held that this Rule is not only applicable to applications under Section 45, Specific Relief Act, but also under Art. 226 of the Constitution. Also see 'Union of India v. Elbridge Watson',. Mr. Chatterjee has drawn my attention to p. 605, where Banerjeo, J. has referred to Halsbury's Laws of England, page 770 where it is pointed out that the principle does not apply to all possible cases and does not apply where a person through inadvertence had done or omitted to do some act which he was under a duty to do and where the time within which he should do it has passed. That principle however has no application to the present case because no time limit is fixed for demand and refusal and there is no averment that failure to demand justice was by inadvertence. This preliminary point by itself is sufficient to dispose of this application but I do not propose to decide it merely on the preliminary point but shall deal with the merits of the application.;