LALJIMAL PREMSUKHDAS Vs. B K KOMBRABAIL DIV SUPERINTENDENT WR

JUDGEMENT

(1.) This group of five writ petitions filed under Article 226 of the Constitution of India raises common questions about the constitutional validity of a certain Order to be presently mentioned and its true construction. The facts leading up to the presentation of those petitions though not the same are similar. Mr. Nanavati concedes that the ultimate result of these petitions does not depend upon individual facts therein but depends entirely upon the decision reached on the questions of law. Therefore it is not necessary for us to set out the facts obtaining in each of the five petitions. However in order to understand the points of law involved it is necessary that we should state the facts of one of those petitions. We propose to set out the facts obtained in Special Civil Application No. 592 of 1964. Petitioner No. 1 therein is a partnership Firm of which petitioner No. 2 is a partner. Petitioner Firm placed an order on 4th July 1964 with M/s. Milap & Co. Rajkot for purchase of 660 tins of groundnut oil which oil was to be dispatched to Naila in Madhya-Pradesh. In performance of this contract Milap & Co. delivered on 19th July 1964 a consignment of 660 tins to the railway authorities at Paddhari station to be despatched to Naila and obtained a railway receipt on the same day in its own favour as consignee. On 20th of July 1964 Milap & Co. issued an invoice in the name of petitioner Firm for the price of the oil drew a Hundi on petitioner Firm and delivered those documents to the local branch of the Punjab National Bank together with the Railwry receipt which was endorsed by Milap & Co. in favour of the Bank. The Bank presented on 24th of July 1964 the Hundi to petitioner Firm. Petitioner Firm retired the Hundi on 28th of July 1964 whereupon the Bank endorsed the railway receipt in favour of petitioner Firm on the same day. The railway authorities had in the meantime placed the oil tins in a railway wagon and on 22nd of July 1964 the railway wagon had reached Rajkot station in the course of its journey from Paddhari to Naila. On that day the Government of Gujarat issued the impugned Order called the Gujarat Ground-nut (Transport Control) Order 1964 (hereafter called the Order simpliciter). The Order was issued in exercise of the powers conferred upon the State of Gujarat (hereafter called the State) under rule 125 of the Defence of India Rules 1962 This Order prohibited persons from transporting inter alia by rail among other things groundnut oil from any place in the State to any place outside the State except under and in accordance with a permit. On this Order being communicated to the railway authorities the further course of the journey of the wagon was interrupted. The railway authorities issued a notice on 6th August 1964 to Milap & Co. intimating to that Firm the publication of the Order calling upon it to unload the oil tins or to take delivery at any station in Gujarat and intimating that if this was not done within a certain period of time the tins in question would be auctioned off. The notice stated that the consignment had been detained at Rajkot. On 8th of August 1964 petitioner Firm sent telegrams to the Western Railway and the South Eastern Railways complaining about the delay in the delivery of the consignment in question. On 11th of August 1964 the second petitioner came to Rajkot and contacted Milap & Co. The latter informed the second petitioner about the contents of the notice and the fact that the consignment had been detained at Rajkot. On 11th August 1964 Milap & Co. wrote a letter to the railway Authorities stating that the movement of goods in transit was not affected by the Order and that petitioner Firm herein was entitled to get delivery of the goods at Naila under the contract of bailment by the virtue of the fact that the railway receipt had been endorsed in its favour. Thereafter petitioners presented the present petition on 14th August 1964. Petitioners pray for a declaration that the Order is ultra vires Article 301 of the Constitution and that respondents be restrained by an appropriate writ from enforcing the provisions of the Order. Respondent No. 1 is the Divisional Superintendent (Commercial) Western Railway Rajkot and respondent No. 2 is the State. Petitioners further pray for the issuance of a writ of or in the nature of mandamus or any other writ direction or order for quashing or setting aside the directions contained in letter dated 6 August 1964 of the first respondent addressed to Milap & Co. and a further direction against the first respondent to move the consignment in question to its destination at Naila and to deliver the same to petitioners. Both the respondents have appeared in response to a notice of this Court. The facts narrated above are all admitted by respondents. They however challenge the submissions of law on the basis of which the petition is based. As already stated all the petitions raise the same questions of law. Therefore they were placed for hearing on one and the same date. They have been heard together and this common Judgment will dispose of all the petitions.

(2.) 2. Before setting out the three contentions on which the petitions are sought to be supported it would be convenient to set out the impugned Order. It will be convenient to set out the Order in full specially as it is a very short Order. The Order is as under:

(3.) 3. The contentions raised are:-