JUDGMENT
Anand, C.J.
1. A Division Bench of this Court while disposing of Writ Petition No. 783 of 1988 titled Kh. Moh’d Shahban v. Stale and others, filed in public interest, passed an order on 29-9-1988, directing the fixation of gradation and sale price of bricks within the shortest possible time. Pursuant to the aforesaid order, the Director of Food and Supplies, Srinagar, issued notification No. DFSK/S(PC)88/9 dated 7-2-1989 fixing the rate of A-class bricks at Rs. 650/- per thousand for “the city of Srinagar”.
2. The petitioners, who represent the Brick Kiln Owners and Brick Manufacturers Associations of Kashmir, have challenged this notification, inter alia, on the grounds; (i) that respondent 2 had no power to fix price for the brick kilns which are located outside the city of Srinagar; (ii) that Section 3(c) of the Jammu and Kashmir Hoarding and Profiteering Prevention Ordinance, 2000 (for short, the Ordinance hereafter) is ultra vires the Constitution and consequently the impugned notification is without jurisdiction; (iii) that Section 3 of the Ordinance gives an unguided direction to the controller and the price fixed under it suffers from the vice of arbitrariness; (iv) that the petitioners were not heard before fixing the rate of bricks and, therefore, the rules of natural justice have been violated; and (v) that respondents 4 to 8 — Deputy Commissioners; be directed to issue notifications fixing the rates of bricks in their respective districts under Section 3(c) of the Ordinance.
3. All these grounds were reiterated by learned counsel for the petitioners. The respondents have challenged the maintainability of the petition on the grounds that the petitioners have no locus standi to challenge the impugned notification and that the price fixation being a legislative fact, the charge of arbitrariness cannot be sustained. According to Mr. Ishtiq Hussain, the survey report indicates that all the factors which go to constitute the price structure of a brick have been taken into account and, therefore, this cannot be questioned. Mr. K.M. Shahban, intervenor as well as Mr. B.A. Bashir, representing the Public Interest Forum who also sought lo intervene in the case, vehemently argued that the impugned notification had been validly issued and was in the interest of the consumers at large and deserved to he upheld.
4. We have given our thoughtful considerations to the arguments raised al the bar and the pleadings of the parties.
5. Notification on its plain reading has application to the brick kilns located within the city of Srinagar only. It reads:
“By virtue of powers vested in me under Clause (c) of Section 3 of the Hoarding and Profiteering Prevention Ordinance, 2000 read with SRO 533 dated 15th, November, 1975, I.A.A. Akhoon, the Director, Food and Supplies Kashmir, hereby fix the rate of bricks ‘A’ class at Rs. 650/- (Rupees six hundred and fifty) per thousand (of standard specification) at brick kilns within the city of Srinagar.”
6. That the petitioners do not have any concern with the brick kilns located in the city of Srinagar, is evident from the following averments made in the writ petition :
“That the petitioners herein are representing Brick Kiln Owners and Manufacturers, who have their brick kilns located outside the city of Srinagar. It is submitted that the brick kiln manufacturing units are located in various districts and are outside the city of Srinagar. It is submitted by the petitioners that in their case the power to fix the rates in terms of Section 3 of the aforementioned Ordinance vests in the respective Deputy Commissioners and not with respondent 2, who has the authority to fix the price/rate of an article within the city of Srinagar. It is submtted by the petitioners that they are not representing the brick kilns owners/manufacturers whose units are within the locality of Srinagar City.”
Again in para 20(1) the petitioners have, inter alia, staled :
“(I) That the petitioners have their brick kilns and manufacturing units located outside the city of Srinagar and in respect of fixation of price/maximum rate thereof, respective Deputy Commissioners have been authorised to fix the rates under Section 3(e) of the Hoarding and Profiteering Prevention Ordinance, Samvat 2000. It is submitted by the petitioners that the power to fix the rate vests with the respective Deputy Commissioners, as they have been authorised/delegated powers by the Minister incharge Food and Supplies Department vide SRO-533 dt. 15-11-1975. The rates fixed by Deputy Commissioner, Food and Supplies, Kashmir Province, Srinagar, will be relevant/operative for those manufacturers whose brick kilns are located within Srinagar city.
7. Thus, on their own showing the petitioners cannot make any grievance in so far as the impugned notification is concerned and to that extent the preliminary objection raised by Mr. Ishliaq Hussain that the petitioners have no locus standi to challenge the notification dated 7-2-1989, issued by respondent 2, is well founded and must prevail.
8. Faced with this situation, the next submission of learned counsel for the petitioners is that the endorsement of the impugned notification to all the territorial Deputy Commissioners by respondent 2, implies a direction to them to fix the rate accordingly and give ‘extra-territorial’ application to the notification. He went on to urge that the procedure adopted by respondent 2 for fixing the rates was arbitrary and that respondents 4 to 8 may also follow a similar one while issuing notifications. This submission is misconceived because the copy has been endorsed only to the Deputy Commissioner, Badgam, who according to the objections filed by the State, has already issued notification No. DC/BUD/PA89/982 91 dt. 7-2-1989, which has not been challenged and thus it is futile to urge that the impugned notification has ‘extra-territorial’ application. Each of the Deputy Commissioners has the jurisdiction to issue notification applicable to his territory. Annexure R 4 filed with the objections is clear on the point and negatives the submission of Mr. Qayoom that respondent 2 has issued the impugned notification effective for all districts inasmuch as by endorsing a copy of the impugned notification to District Magistrate, Badgam, he did not direct him to follow the impugned notification. Letter, Annexure R4, addressed to the Deputy Commissioners, by respondent 2, inter alia, provides :
“The Hon’ble High Court has issued an order on 29-9-88 regarding the concerned authorities to fix the sale rate of bricks within the shortest possible time. Accordingly this department conducted survey (report enclosed) to arrive at the rate at which the bricks might be sold. Under Hoarding and Profiteering Prevention Ordinance….. You may issue the necessary notification which will have application within your district after careful study of the survey report. The report is intended to be utilised as a guidance to arrive at the actual sale rate.”
(Emphasis ours))
Thus, the Deputy Commissioners have been clearly told that before fixing the price they should study the survey report carefully and not act upon it mechanically and should issue notifications fixing rates. No grievance can be made on that account. We shall deal with the charge of Mr. Qayoom regarding the arbitrariness of procedure followed by respondent 2 and which may be followed by respondents 4 to 8 also, in the later part of this judgment.
9. Mr. Qayoom also argued that the Ordinance having been enacted under Section 5 of the Jammu and Kashmir Constitution Act, 1996, it does not survive the repeal of Section 5 and any notification issued thereunder must of necessity fall He argued that the Ordinance had become “redundant” and outlived its utility. We cannot agree. An identical argument was advanced before their Lordships of the Supreme Court in Rehman Shagoo v. State of J. & K., AIR 1960 SC 1, wherein validity of the Jammu and Kashmir Enemy Agents Ordinance, 2005, was challenged. Repelling the contention their Lordships held (at p. 6) :
“The contention is that as Section 5 of the Constitution Act was repealed on Nov. 17, 1951, the Ordinance which is stated to have been passed under that section also came to an end. It is enough to say that there is no force in this argument. Clause (b) of Section 6 of the Jammu and Kashmir General Clauses Act, No. XX of Section 1977, clearly saves the Ordinance. It is as follows :
“Where this Act, or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not…..
b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;”.
It will be clear that the promulgation of the Ordinance was a “thing duly done” under Section 5 of the Constitution Act and the repeal of Section 5 of the Constitution Act would thus leave the Ordinance which was promulgated thereunder entirely unaffected. The repeal of Section 5 can only mean the withdrawal of that legislative power on and from the date of repeal. Anything done while the power subsisted cannot be affected by such repeal. A law enacted under a Constitution Act does not lose its vitality and would continue even though there may be repeal of parts of the Constitution Act under which it was enacted so long as the law is not inconsistent with the Constitution Act as it emerges after the amendment and repeal of certain provisions thereof, it derives its binding force from the fact that it was within the competence of the legislature when it was passed and being permanent would continue till amended or repealed under the amended Constitution Act. We are, therefore, of opinion that the Ordinance did not come to an end on the repeal of Section 5 of the Constitution Act and remained a valid piece of legislation in view of Section 6(b) of the Jammu and Kashmir General Clauses Act.”
A Full Bench of this Court in Rattan Lal v. State of J. & K., AIR 1969 J & K 5, while dealing with a somewhat similar challenge to the provisions of the Essential Supplies (Temporary Powers) Ordinance, 2003, also negatived a similar argument by holding that the “the Ordinance, 2003 was promulgated by his Highness under the inherent authority as contained in Section 5 and, therefore, it had the force of law unless repealed by any competent authority which would be either his Highness or the State legislature under the new Constitution of the State.” This question, therefore, is no longer res integra so far as the State is concerned. The impugned notification has, therefore, been validly issued under Section 3 of the Ordinance, which is validly in force.
10. The next argument is that Section 3(e) of the Ordinance gives an unguided power to the controller to fix price for want of proper guidelines and hence is unconstitutional being arbitrary. He went on to emphasise that the procedure adopted by respondent 2, for fixing the price of bricks was arbitrary and respondents 4 to 8 may also follow a similar procedure and that would render the notifications which may be issued by them also bad and, therefore this Court should spell out the procedure.
11. In order to sustain the charge of arbitrariness it is not enough to say that the provision is arbitrary but also to satisfy the Court that the authority has acted arbitrarily because the provision gave it no choice to act differently. The Ordinance gives sufficient indication and provides guidelines which go to determine the cost factor of an article and the profit to be allowed as is evident from the provisions of Section 6 of the Ordinance. In order to sustain the charge, the petitioners will have to show that respondent 2 has acted arbitrarily in reaching the conclusion. This can be examined by appreciating the procedure that was adopted by respondent 2, in fixing the maximum price of bricks and to which procedure exception has been raised by Mr. Qayoom.
12. Before any direction could he issued in Shahban’s case (supra), the Deputy Commissioner, Food and Supplies, Srinagar, respondent 3, acting on the advice of the Divisional Commissioner, Kashmir, had convened a meeting of General Manager, Brick and Tile Factory, Pampore, Manager, Mechanised Brick Kiln, S1DCO, President, Kashmir Brick Manufacturers Association and the President, Brick Kiln Owners Association, for 21-9-88, to discuss the rates of the bricks. Respondent 3 also got a survey conducted about the various factors such as capacity of the brick kiln and various components required for manufacturing bricks which would go to constitute the cost structure of a brick. This report, annexure R3, was made available to the manufacturers, members of the Citizens Advisory Committee as also to Alsafa Forum, representing the interests of consumers, who had moved the earlier writ petition. In determining the rale, the survey report gives a detailed break-up of the components used for manufacturing of bricks. Annexure R3 shows that as many as 14 components required for manufacturing the bricks, have been accounted for and their prices determined. It is not the petitioner’s case that any of the components required for manufacture of bricks is not included but their only grievance is that the prices worked out for each one of the component does not reflect the “actual” market rate because they have given different evaluations. The fact, that in the survey report, respondent 2 had taken note of each one of the items into consideration, including the cost mentioned by the petitioners, is by itself sufficient to dispel the charge of arbitrariness. Besides, respondent 2 also had before him the rates prevailing in various other parts of the Stale including Udhampur, Rajouri, Kathua and Jammu and after taking the entire material into consideration, fixed the price of bricks as contained in the impugned notification. The break-ups submitted by the petitioners for various years, the copy of the survey report for working out the cost of bricks by taking into account the price of various components and adding to it the profit margin at the rate of 10 per cent and considering all other material, respondent 2 fixed the rale of bricks as given in the notification viz. Rs. 650/-per thousand of standard specifications of A grade for brick kilns within the city of Srinagar. The rates of bricks in Udhampur, Rajouri and Kathua as given in the objections are Rs. 450A, Rs. 470/- and Rs. 440/- respectively per thousand bricks. The cost of per thousand bricks projected by the petitioners themselves in respect of the brick, kilns represented by the petitioners for the years 1982, 1984, 1986 and 1987 were Rs. 376, Rs. 595, Rs. 584 and Rs. 587 respectively per thousand bricks. The rates for the year 1987, as projected by the brick kiln owners/ manufacturers Associations in Kashmir Division as on 24-9-1987 were given by the petitioners at Rs. 597/- per thousand bricks.
13. The cost of bricks as projected by the petitioners for the year 1988, as on 5-9-1988, is however, given as Rs. 1010/- per thousand bricks which shows an increase of Rs. 413/-per thousand bricks within a period of one year, whereas on the petitioners’ own showing the escalation in the previous years as noticed above has been rather negligible. After taking into account all relevant factors, the price of per thousand bricks, was fixed by respondent 2 at Rs. 650/- and, in our opinion, the fixation of that price appears to be fair and reasonable. There is, thus, no susbtance in the charge that the price has been fixed arbitrarily because every factor has been considered and reasons have been advanced to justify a view different than the one sponsored by the manufacturers. It, therefore, cannot be said that the respondents have acted arbitrarily. Thus, on facts, the charge of arbitrariness as projected by the petitioners against the notification is unfounded and fails. It would, al this stage, be also advantageous to notice the following observations of their Lordships of the Supreme Court in Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 (at P. 1820):
“…….. It was open to the subordinate
legislative body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing…………….It is open to
the subordinate legislating authority to adopt a rough and ready but otherwise not unreasonable formula rather than needlessly intricate so-called scientific formula. We are unable lo say that the subordinate legislating authority acted unreasonably in prescribing the norms in the manner it has done.”
which are a complete answer to the charge of arbitrariness as projected by Mr. Qayoom and negative his submission about the procedure adopted by respondent 2 while fixing the sale price of bricks and we need say no more.
I4. The next submission of the learned counsel for the petitioners is that objections had been filed by the Brick Kiln Owners/Manufacturers’ Associations, but without providing the manufacturer an opportunity of being heard. Respondent 2 fixed the price and, therefore, the rules of natural justice had been violated rendering the impugned notification invalid. He urged that since fixation of price of sale of bricks primarily affects the manufacturer, therefore, in accordance with the rules of natural justice, the right of bearing to those who are mainly affected must be read into the procedure under the Ordinance and by not providing such a hearing. Respondent 2 had violated the rules of natural justice.
15. In Cynamide India Ltd.'s case (AIR 1987 SC 1802) (supra) a similar argument was raised before their Lordships of the Supreme Court and was repelled thus : (at p. 1807) ".......We also wish to clear a
misapprehension which appears to prevail in certain circles that price-fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price-fixation. We do not agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the consumer public. It is for their protection that price-fixation is resorted to and any increase in the price affects them as seriously as any decrease does a manufacturer, if not more.”
In view of this settled law, the grievance raised by Mr. Qayoom is misconceived. Even otherwise, in the instant case all parties had been consumed by him and therefore, fairness and reasonableness was present to the mind of Respondent 2 and he considered all relevant mailers including the objections filed by the petitioners while fixing the price.
16. The last submission made by Mr. Qayoom is that as the rules fixed are not realistic, representing the market rates of various components, the Court may fix the price taking into account the data submitted by the petitioners both before Respondent 2 and appended as an annexure to the writ petition. We reject that argument. Fixation of price is not the function of the Court as has been held in Cynamide India Ltd.’s case (AIR 1987 SC 1802 at p. 1805) (supra). It was observed :
“We start with the observation, ‘Price fixation is neither the function nor the forte of the Court’. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. For example, if the Legislature has decreed the pricing policy and prescribed the factors, which should guide the determination of the price, we will, if necessary enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assembling of the raw materials and the mechanics of price fixation are the concern of the executive and we leave it to them. And, we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers………….”
We accordingly refuse the invitation to be drawn into the mechanics of the price fixation. It would be useful, in this connection, to notice the following observations of the Supreme Court in Prag Ice and Oil Mills v. Union of India, AIR I978 SC 1296 which have guided us to deny to ourselves the invitation referred to above: (at p. 1313. Para 50) "..........In the ultimate analysis the machanics of price fixation has necessarily to be left to the judgment of the executive and unless it is apparent that there is hostile discrimination against a class of operators the proccssual basis of price fixalion has to be accepted in generality of cases as well........." 17. As has been noticed above, the price of bricks has been sought to be raised within a short span of one year by more than Rs. 400/-per thousand in Kashmir, which is more than double the price of bricks in various other districts of the State reference whereof has been made above and shows the extent of profiteering indulged into by the brick kiln owners and manufacturers.
18. Profiteering by itself is an evil. It is a social menace which the Courts must, within the limits of their jurisdiction, try to curb so as to give effect to the letter and spirit of the Ordinance viz. to prevent hoarding and profiteering. It is almost a crime against the society at large and it is the duty of the Courts within its settled parameters, to protect the consumer, against the high-handedness of the profiteers. The Ordinance was promulgated more than six decades ago to check the price inflation and make various articles available to the consumers at reasonable rates. Its provisions must be allowed to have full play. The State Government, therefore, took a proper decision by issuing the impugned notification, keeping in view the interests of general public. Price fixation measure concerns commodities and is conceived in the interest of general consumer public, of course, without ignoring the interests of an individual manufacturer or producer. It is the right of a citizen to obtain such articles at fair price and a duty of the State to so provide.
19. In view of what has been said above, we find no merit in the petition seeking the quashing of the impugned notification dated 7-2-1989, issued by Respondent 2, fixing the rate of ‘A’ class bricks of standard specification at Rs. 650/- per thousand so far as it is applicable to the city of Srinagar.
20. Respondent 4 has already issued a notification covering Badgam and in case Respondents 5 to 8 have not fixed the rates of bricks in relation to brick kilns located within their respective districts in terms of Section 3(c) of the Ordinance so far, they should do so
expeditiously. The dead line set by the Court in Writ Petition No. 783 of 1988, is already over and any delay on their part may attract infraction or disobedience of the orders of the Court and, therefore, they must act and act fast.
21. The writ petition with the aforesaid observations, is dismissed.
