BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P(MD).No.8581 of 2008 and M.P(MD)No.3 of 2008 1.M/s.V.V.V.& Sons Edible Oils Limited, (Formerly known as M/s.V.V.Vaniaperumal & Sons), represented by Director V.V.V.R.Muthu, 443, Bazaar, Virudhunagar - 626 001. 2.V.V.V.R.Sathyam, Director, M/s.V.V.V.& Sons Edible Oils Limited, 443, Bazaar, Virudhunagar - 626 001. ... Petitioners Vs 1.The State of Tamil Nadu, represented by its Secretary, Co-operation, Food and Consumer Protection Department, Fort.St.George, Chennai. 2.The Commissioner of Civil Supplies and Consumer Protection Department, Chennai. 3.The District Collector, Virudhunagar District, Virudhunagar. 4.The District Supply and Consumer Protection Officer, Collectorate, Virudhunagar District, Virudhunagar. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Declaration, holding annulling or declaring the provisions of Clauses 9, 10, 12 and 14 of the Tamil Nadu Edible Oil Seeds and Edible Oils (Storage Control) Order, 2008 as violative and ultra vires Articles 14, 19(1)(g) and 301 of the Constitution of India. !For Petitioner ... Mr.R.L.Ramani, Senior Counsel for Mr.B.Raveendran ^For Respondents... Mr.D.Sasikumar, Govt.Advocate (Writs) :ORDER
This petition has been filed for holding annulling or declaring the
provisions of Clauses 9, 10, 12 and 14 of the Tamil Nadu Edible Oil Seeds and
Edible Oils (Storage Control) Order, 2008 as violative and ultra vires Articles
14, 19(1)(g) and 301 of the Constitution of India, by issuing a Writ of
Declaration.
2. Heard the learned Counsel for the petitioner. The learned Government
Advocate (Writs) for the respondents prays further time. In view of the order
which is going to be passed, no further adjournment is required.
3. After hearing the learned Senior Counsel appearing for the petitioner,
I am of the opinion that the main writ petition itself could be disposed of by
passing the following order.
4. The facts giving rise to the filing of this petition as stood exposited
from the affidavit accompanying the writ petition as well as from the arguments
of the learned Counsel for the petitioner, could tersely and briefly set out
thus:
The petitioner is a Private Limited Company doing business in Edible oils
ever since 1942. While so, by virtue of Gazette Notification dated 13.08.2008,
the Tamil Nadu Edible Oil Seeds and Edible Oils (Storage Control) Order, 2008
came into vogue also. The grievance of the petitioner in a nutshell is that the
ceiling prescribed for manufacturing as well as storage of oil works injustice
to the company as the status which prevailed on 31.08.2006 was taken as the
criterion for fixing the said ceiling whereas the order itself has come to vogue
on 31.08.2008 and in between the interregnum period, the petitioner developed
his business to such an extent that it is capable of manufacturing as well as
storing quantifies much higher than what was prevailing as on 31.08.2006.
Without taking into consideration, the consequences flowing from the
restrictions, the said order was passed and it virtually affects the right to
conduct the business under Articles 14 and 19(1)(g) of the Constitution of
India.
5. The petitioner filed M.P(MD)No.2 of 2008 for stay of the operation of
the provisions of the Tamil Nadu Edible Oil Seeds and Edible Oils (Storage
Control) Order, 2008, which my learned Predecessor dismissed. Now then, the
petitioner filed M.P(MD)No.3 of 2008 for injuncting the Government from taking
action as against the petitioner for violating the said Order. In my opinion,
M.P(MD)No.3 of 2008 filed is virtually for obtaining the same relief which was
dismissed by my learned Predecessor.
6. Now then, the learned Counsel for the petitioner has come forward to
argue the entire writ petition itself in order to justify the contention of the
petitioner in this writ petition.
7. In view of the order which is going to be passed, I think that even
counter by the other side is not required and accordingly, I proceed to decide
the main writ petition itself.
8. The impugned order has been passed under the Essential Commodities Act.
I could lay my finger on paragraph No.15 of the Tamil Nadu Edible Oil Seeds and
Edible Oils (Storage Control) Order, 2008, which is extracted hereunder for
ready reference:
“15. Order not to apply in certain cases. (1) Save as provided in sub-
clause (2); nothing contained in this Order shall apply to –
(i) the Food Corporation of India, established under the Food Corporation
Act, 1964 (Central Act 37 of 1964),
(ii) the Tamil Nadu Civil Supplies Corporation Limited, established by the
Government,
(iii) other Corporation or a Company owned or controlled by the Central
Government or a State Government or a Statutory Corporation.
(iv) a Central level or a State level Co-operative Society engaged in the
production, procurement, sale, purchase or distribution of Edible Oil Seeds and
Edible Oils.
(2) The Government or the Commissioner may –
(i) if consider necessary, in the public interest or any other just and
sufficient reason, by notification in the Tamil Nadu Government Gazetee, fix any
stock limit either generally or for specific period for the Corporation, Company
and Co-operative Society referred to in sub-clause (1); subject to such
conditions as may be specified in the notification;
(ii) call for any information from the Corporation, Company and Co-
operative Society referred to in sub-clause(1).” (emphasis supplied)
9. The purport of the aforesaid paragraph 15(1) is that it exempted the
Government Corporations and Companies from the purview of the said Order for
certain reasons. However, the Companies like the petitioner, at first blush,
are not readily could be seen as the one exempted from the impugned order
itself. It is a serious point to consider whether a Government Company doing
commercial business could be differentiated for better treatment leaving high
and dry the other companies like the petitioner as per Articles 14 and 19(1)(g)
of the Indian Constitution. It is also a crucial and vital point to be decided
as to the term ‘Company’ referred to in paragraph 15(2) of the impugned order,
as the one to be taken independent of paragraph 15(1) of it. To take a cue,
paragraph 6 of the order could be referred to as one which does not discriminate
between private and other sectors.
10. I am of the considered opinion that without filing straight away this
petition, the Company could have very well approached the Government seeking
the relief, whereupon, the Government would have been able to consider it on
merits. Hence, in this factual matrix, the following direction is issued:
Within a period of two weeks from the date of receipt of a copy of this
order, the petitioner shall approach the Government seeking the relief whereupon
the Government shall consider it as expeditiously as possible purely on merits
focusing its attention on the points raised here.
11. I make it clear that at present the serious contention raised in the
writ petition challenging the vires of the impugned order, based on settled
precedents of the Honourable Apex Court, are not decided and if the petitioner
could not get any favourable order from the Government, it is open for the
petitioner to challenge afresh on the same grounds set out in this writ petition
in addition to other grounds if any.
12. The learned Counsel for the petitioner would make an extempore
submission that pending the Government considering the proposal, if the
authorities take any criminal prosecution, then the Company would be prejudiced,
whereupon the learned Government Advocate would submit that the said Order has
come into force from 31.08.2008 and so far, no prosecution has been launched.
13. Recording the same, this petition is disposed of. Consequently, the
connected Miscellaneous Petition is closed. No costs.
rsb
To
1.The Secretary,
The State of Tamil Nadu,
Co-operation, Food and
Consumer Protection Department,
Fort.St.George,
Chennai.
2.The Commissioner of Civil Supplies and
Consumer Protection Department,
Chennai.
3.The District Collector,
Virudhunagar District,
Virudhunagar.
4.The District Supply and Consumer
Protection Officer,
Collectorate,
Virudhunagar District,
Virudhunagar.