- (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: "3-A. Regulation of distribution of Gram- (1) No person shall sell or cause to be sold either directly or through his agent or servant or any other person acting on his behalf, gram, either whole or split, to any other person for the purpose of export outside the State of Rajasthan, unless he has sold or offered for sale, to the Collector or any other officer authorised by him in this behalf, a quantity or gram equal to the quantity which he intends to export (2) The quantity intended to be exported outside the State of Rajasthan under Sub-clause (1) shall not be exported or caused to be exported without first selling an equal quantity to the Collector or any other officer authorised by him in this behalf, as required under Sub-clause (1) and without obtaining certificate to that effect from the Collector or any other officer authorised by the Collector in fills behalf. " According to this clause a person who has sold the Collector any quantity of gram was authorised to export an equal quantity of gram outside Rajasthan on obtaining a certificate to that effect from the Collector or any other officer authorised by him in this behalf. Like gram, the other coarse grains were also subjected to regulation of distribution by the Rajasthan Coarse-Grains (Regulation of Distribution Order, 1964. In August 1965 the material provisions of that Order were exactly like that of Gram-Barley Order, 1964. Thereafter they have the same history, and what we might say hereinafter in respect of Gram-Barley Order, 1964, will apply mutatis mutandis to that Order. Clause (3) (A) in both of them was in identical terms. By a notification No. F. 1 (3) Food/ Sup/65 dated 31st December, 1965, the government of India in exercise of its powers under Section 3 of the Essential commodities Act, 1955 repealed the Gram-Barley Order 1964, as also the rajasthan Coarse-Grains Regulation of Distribution Order, 1964. However before these two control orders were repealed, the State Government in exercise of its powers under Rule 125 of the Defence of India Rules and with the prior concurrence of the Central Government made the Rajasthan Gram and Barley (Prohibition of Export) Order 1965 (hereinafter to be referred as the Export prohibition Order, 1965 ). Clause (2) of the Order runs as follows: " (2 ). Ban on export of Gram and Barley--"as from the dale of commencement of this Order, no person shall without obtaining the prior permission in writing of the State Government in this behalf, export or cause to be exported either directly or through his agent or servant or any other person acting on his behalf, Gram and Barley cither whole or split or in any other form outside the State of Rajasthan. Provided that nothing herein contained shall apply to the export of barley under and in accordance with the military credit notes. " Clause (3) of this Order provided that the Gram Barley Order, 1964. shall remain suspended during the period of operation of the present Order Thus the fate of the gram Barley Order. 1964. was that from 10th December. 1965, it came to be suspended and then it was repealed on 31st December, 1965. The Export prohibition Order. 1965. was amended on 31st December, 1965, and after the amendment Clause (2) now reads as follows: (2 ). Ban on export of Gram and Barley: As from the date of commencement of this Order, no person shall export or cause in be exported cither directly or through his agent or servant or any other person acting on bis behalf. Gram and Barley cither whole or split or in any other form outside the State of Rajasthan; provided that nothing herein contained shall apply to the export of barley under and in accordance with the military credit notes. Provided that the State Government may permit any person to export out of the State to any other deficit State such quantities of gram or barley a do not exceed the limits agreed upon between the State Government and the Central Government". As we have already observed, on 31st December, 1965, the position in respect of coarse-grains was the same as that for gram and the relevant order issued on 81st december, 1905, is identical with the Export Prohibition Order 1965. It is the impact of this new order on what was done by the petitioners under the Gram barley Order, 1904. that falls for consideration in the rases.;