G. M. LODHA, J. - (1.) M/s. Ram Kripal Srichand have filed this writ application under Article 226 of the Constitution of India. The petitioner has made the following prayer in the writ petition. "it is, therefore, prayed that the entire record pertaining to the dispute may kindly be called from the respondents and the writ petition be allowed and; (i) a writ of certiorari or prohibition or any other writ, order or direction may kindly be ordered to be issued against the respondents quashing the part of the order dated 23. 10. 1980 by which he held the petitioner liable to delivery of 65. / of sugar out of the stock of 135 bags of sugar despatched to the petitioner on 17. 12. 1979, by way of levy under the Sugar Retention Order and prohibit the respondents from so taking delivery of the 88 bags of sugar or any part thereof from the petitioner and a specific direction be given to respondents to release the same to your humble petitioner. (ii) Any other appropriate writ, order or direction be given to all or any of the respondents as may be just and appropriate in the facts and circumstances of the case granting suitable relief to the petitioner. (iii) An ad-interim order be issued against the respondents to immediately release the aforesaid 88 quintals (88 bags of sugar) to your humble petitioner. (iv) Costs of the writ petition be awarded to the petitioner. "
(2.) ON 23. 10. 1980, the respondents ordered that 65 percent of sugar out of the stock of 135 bags of sugar despatched to the petitioner on 17-12-79 should be taken as levy under the Sugar (Retention and Sale by Recognised Dealers ) Order, 1979, and directed the petitioners to give delivery of 88 bags of sugar. The petitioner's case is that this sugar has not been despatched prior to 17. 12. 79, the date on which the Retention Order came into force. The entire dispute relates to the interpretation of the Explanation to clause (3) of the Sugar (Retention and Sale by Recognised Dealers) Order, 1979. Clause (3) along with the Explanation reads as under:-- "3. RETENTION OF STOCKS OF SUGAR:- (l)-Every recognised dealer shall retain sixty-five per cent of the stocks of sugar held by him at the close of business on the date of commencement of this Order for the purpose of sale to the State Government, or to an officer or agent of such Government or to a corporation owned or controlled by such Government, or to such other person or class of persons as may be specified by the State Government, under the provisions of this Order and subject to such terms and conditions as may be specified by the State Government. EXPLANATION : - For the purpose of this sub-clause, sugar delivered or despatched to a recognised dealer by a producer of sugar or any other recognised dealer prior to the commencement of this Order but which is received by such recognised dealer at any time after such commencement shall be deemed to be sugar held by the recognised dealer on the commencement of this Order. " It is not in dispute that this order came into force on 17. 12. 1979. It is also not in dispute that the stocks for which the impugned orders have been passed were not available with the petitioner in the closing stock of 17th December. 1979, because they had not reached the petitioner by that time. The respondents, however, want to take levy from this stock on the basis of the explanation of clause (3 ). This explanation is a deeming provision by which even if the sugar was not in the closing stock of the recognised dealer on the commencement of the order and was received later on, yet it will be deemed to be sugar held to be by recognised dealer on the commencement of this order, if it has been either delivered or despatched to a recognised dealer by a purchaser of sugar or any other recognised dealer prior to the commencement of this Order. It would be seen that there is no insistence that the sugar must have been received in the physical stock of 17th December, 1979.
(3.) THE crucial controversy, however, is that the case of the petitioner is that invoice and Hundi were prepared on 17. 12. 79 and actual despatch by the railway was made on 17. 12. 79, and even the wagons in which the sugar was loaded were made available on 17. 12. 79, and the R. R. is also of 17. 12. 79. On the basis of the above facts, Mr. Agrawal submits that it cannot be held that these sugar stocks were either delivered or despatched to a recognised dealer by a purchaser of sugar or any other recognised dealer prior to 17. 12. 79, the date or day on which this order commenced. The respondents have filed the reply, and their contention is contained in para 1 of the additional pleas, which reads as under - " (1) That under the Retention Order, 1979 "any sugar delivered or despatched to a recognised dealer by a producer of sugar or any other recognised dealer to the commencement of this order but which is received by such recognised dealer at any time after such commencement shall be deemed to be sugar held by the recognised dealer on the commencement of this order. " The Order of 1979 came into force on 17. 12 1979 The petitioner placed an order of 135 bags of sugar before 8. 12. 1979 to M/s. Kushalchand, Hiralal of Mujaffar Nagar, who are the agents of the petitioner M/s. Kushal Chand Hiralal of Mujaffar Nagar under their despatch advice No, 533 dated 8. 12 1979 advised M/s Satya Dev Omparkash Mujaffarnagar, agent of Dhampur Sugar Mill to purchase the said sugar M/s Satya Dev Omprakash Mujaffar Nagar under their despatch Advice No. 70 dated 10. 12. 79 advised their representative Sh. Om Prakash Dhampur to get the said sugar despatched to the petitioner. Sh. Omprakash vide his despatch advice No. 2520 dated 11. 12. 79 asked the Mill to despatch the said sugar. In compliance of this advise. Dhampur Sugar Mills permitted to despatch 270 bags of sugar including 135 bags to the petitioner. Dhampur Sugar Mill indented wagon for despatch of this sugar on 11. 12. 1979, but the wagon could be availed on 17 12. 79 and the sugar was loaded In these facts and circumstances, the sugar of 135 bags was already delivered or despatched to the petitioner much before 17 12. 1979 and he is bound to pay levy of this sugar. This sugar was in transit of delivery and despatch before 17. 12. 79 and was to be included in the stock of the petitioners, and for this reason the Mill did not pay levy on this sugar " It was contended by Mr. Hemandas, Deputy Government Advocate that since the petitioner placed the order on 8. 12 79 to M/s. Kushal Chand Hiralal of Mujaffarnagar, and the latter advised M/s. Satya Dev Omprakash on 8. 12. 79 to purchase sugar and because M/s Satya Dev Omprakash advised on 10. 12. 79 shri Omprakash of Dhampur, who, on 11. 12. 79 asked the Mill to despatch the said sugar on 11. 12. 79, therefrom it will be deemed that the sugar was despatched on 11. 12. 79, even though the wagons were loaded on 17. 12. 79. ;