1 270 CY 3 4Wl CWP No 1911of2010 etc 1 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH e DATE OF DECISION 4A22011 110CWPN001911of2010 MJs Parkash Rice Mill eeePetitioner Versus StateofHaryanaand others 1 eRespondents l 0 Ca3 WP N035540f2010 Mls Hanuman Rice Mill 82Another C eeePetitioners I Ct Versus Z The State ofHaryanaand others eRespondents 1CWP N05281 of2010 t IVIIsInder SinghAjit Singh Z eeePetitioner 00 Versus 3 State ofHaryanaand others Z ll t4WP N005282of2010 Mls GanpatiRice Overseas 4een eeePetitioner Versus State of Haryanaand others Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 271 4e v CWP Noe 1911of2010etce 2 Mls AnnapurnaOverseas eeePetitioner Versus Stateof Haryanaand others Respondents 6CWP NoS279 of2010 Mls Jhandu Mal Tara Chand eeePetitioner Versus m lr Stateof Haryanaand others 0 0 I Noe5247of2010 Ca9 1 Mls HaryanaRice Lande I OeePetitioner Z Versus StateofHaryanaand others 0 Respondents CWP N05287 of2010 Z Mls Shivo Shiva TradingCompany Qo OeePetitioner 7 Versus Z Statsof Haryanaand others 9CWP No5284 of2010 Mls Siri Ganesh Rice and General Mill 6V eeePetitioner Versus State ofHaryana and others Respondents of2010 Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 272 C 5CWP No 1911of2010 etce 3 Mls Jai DurgaRice and General Mill eeePetitioner Versus The State ofHaryanaand others Respondents No5283of2010 Mls Hindustan Rice MiIls eeePetitioner Versus W The State of Haryanaand others 0 0 I ZeCWP NoA9170f2010 0 IVIIs Krishna Rice 8i General Mills I 4 eeePetitioner Z Versus StateofHaryanaand others C1 Cn1 Z Raj Shree Rice Mills QO eeePetitioner m Versus Z State of Harvana and others C 4eCWP Noe5286 of2010 Mls Mahavir Rice 8LGeneral Mills 4e eeePetitioner Versus State ofHaryanaand others Respondents eCWP N052850f2010 Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 273 e 1 L CWP No 1911of2010 etce 4 Mls Hanuman Rice Mills OeePetitioner Versus Stateof Haryanaand others Respondents 06CWP NoA9370f2010 Mls A One Rice Unit eeePetitioner Versus e r State ofHaryanaand others 0 0 C5 CORAM Z HONBLE MRJUSTICE PERMOD KOHLI 2 PRESENT MrTS Dhindsa Advocate MrOP GoyalSrAdvocate with I lvlsRimplejeet Kaur Advocate MROShanna DAG Haryana Z tvlrHari Pal Verma Advocate MrGirish AgnihotriSrAdvocatewith Cn MrArvind Seth Advocate MrKS Dadwal Advocate W2 Z Permod KohliJe With similarityof facts and common issues havingbeen involved ltl thesewrit petitionsthe same are beingdisposedofby this common order The petitionersin alI these petitionsare Millers engagedln custom 4 millingof the paddypursuant to entered into with the HaryanaState Cooperative Supplyand MarketingFederation Limited hereinafler referred to as the HAFED1 Even thoughthere are separate impugnednotices ln all these petitions however the contents being Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 274 1 r3 4e CWP No 1911of2010 etce 5 common facts are beingnoticed om CWP No91 l of2010 Stateof Haryanaissued rice procurementlevy order called as HaryanaRice Procurement Levy9Order 1985 lereinaer referred to as 1985 order This order has been issued under Section 30f the Essential Coodities Act 1955 with the objectiveofmaintaining the supplyofrice and for securingits equitabledistribution and avaiIability at fair prices Clause 10 of the aforesaid 1985 order empowers the Govemment or the m DirectorFood andSupplies to directany rice miller to convert any stock or C paddylnto nce held by the govemmentor its agency or the Food 0 0 Corporation ofIndia on such tenns and conditions as may be prescribed by I C5 theGovemment or the Director In terms ofthe aforesaid Clause ofthe 1985 I Order the StateofHaryanadecided to engagevarious rice mills in the State Z of Haryanafor Custom Millingof Rice commonlyknown as CMR A detailed were formulated in this regardon 199 008 issued bythe Director Food and SuppliesHaryanaUnder the 1985 Order I and the the miller is requiredto deliver the rice afler Z custom millingto the FCI Allotment to the millers 1Sto be made bythe LYl District Level Committee headed bythe DeputyDirector and comprising of Z District Managerof procurementagenciesincludingthe Food Corporation 1 ofIndia It also provides not to make any allotment to a defaulter rice miIler Clause 5 0 of the olicy Annexure I providesfor execution of whereas Clause 01deals with the paymentof millingcharges C For the paddyseason 20082009 the petitionernamelyMls Parkash Rice Shivpuri Road Kamal was entrusted with 1439 MT tonns paddyfor milling A formal agreementenvisagedunder Clause S OOofthe policyalso came to be executed on 269008 Condition 15 il of the agreement Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 275 4 4 CWP No 1911of2010 etce 6 provides for deliveryof the rice after millingas per prescribed laid down by the HAFED directlyto the FCI Condition 17 of the agreementdeals with the mode and manner of deliveryThe said conditionis reproduced as underl lThe deliveryof rice shall be deemedto have been bythe MillerlSecond Partyafter the stocks are loadedinto wagons or delivered into the godowns as per 1 directions of the official of the Ct First Pany after necessary and 0 0 approvalof the quantityin accordance with the C5 prescribed procedure of the First Partyat the cost of the MillerlSecond Party It will be the responsibility of the Z MillerlSecond Partyto supply A note weightcheck rnemo and a11other relevant documents to the concerned agency after the deliveryofrice for claiming CO payment from Food Corporation of India failingwhich Z he shall be liable to pay CCL rate of interest for the m delayedperiod All the includingIabour 7 Z loading unloading and anv other expenditure etclcurred in connection with the delivery of ice within 8 Kms shall be bome by the MillerlSecond Pany In case nce 1S delivered beyond8 Kms the expenditureincurred by the MillerlSecond 4 Party on this account shall be regulatedas per instructionsofGovernment of India 99 Even FCI hasissuedguidelines dated 1792008 regardinginspection Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 276 t 4 CWP No 1911of2010 etce 7 sampleanalysis lll respectof the procurementof paddy and ofrice stock duringKharifMarketing Seasons200809 Perusalof this document reveals that proper procedure has been prescribed for ensuring the qualityof the rice its supplyand storageetc The quality hasto be maintainedas per the guidelines prescribed by the Government of India etc It is admitted case of the partiesthat the petitioner delivered the milledrice to FCI upto the months 2009 It is alleged m that at the time of deliveryFCI Kamal carried out detailed analysis to tr test the prescribedquality of the nce delivered by the 0 43 petitionerThe petitioner has placedon record various C5 repons 111 respectof the suppliesmade by the petitionerThese are I collectively marked as Annexure P1 with the writ petitionThe acceptance Z reportsindicate that the milled rice suppliedconforms to the prescribed 2 as regards thequalityofthe rice supplied r I In the next paddyseason 20092010 againthe partiesentered into Cl same kind of arrangement as 111 the previousSeason 200809 The Z petitioner was entrustedwith 4390 MT of paddyfor millingfor the season OO 200910 After millingthe rice was to be delivered to FCI not later than Wm Z 3132010 for which followingschedule of deliverywas prescribed under tl the agreementexecuted betweenthe partiesfor this season as well October and November 20091 200Iofthe allotted paddy December 2009 20 iOw eaeeee Janlmrv 2010 25Io Februarv 2010 15Io 10 March 2010 15Io do 11 The milled rice was to be delivered to the FCI directlyin accordance Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 277 7 1 CWP No 1911of2010 etc 8 with the contractualstipulation in terms of the agreementdated 1 02009 Thepetitionerclaims to have milled 184 MT of paddyfor the months of 2009 and when delivery was soughtto be made to FCI it refused to take the deliveryIt is stated that when the petitionermade enquines the reason for refusal of the FCI to take deliveryit receivedIetter dated 101 12009 4nnexure I91 issued by the Pawan GuptaDepot Manager FCI Kamal wherebythe petitionerwas m communicated that the rice stocked by it at DJ3111 Bajidahad been Cl declaredas Below RejectionLimit hereinafter referred to as BRLI It 0 0 was furthercommunicatedthat as a pre condition the petitioner is required I C to replace the rice at its own costs as per directions ofthe higherauthority I for acceptingthe paddyfor the year 200C 10 A similar letter dated Z 27 112009 was received from the District Manager HAFED Kamal exure P askingthe petitioner to replacethe BRL stock of rice within the as per directions of the FCI The petitioner I r receivedyet another letter dated 4 122009 8om the Assistant Food and Z Supplies Oftlcer Kamal on the same lines advisingthe petitioner to replace 00 1 the BRL declared rice for the year 200809 to facilitate the deliveryof the 1 Z nce to the paddyseason 2009 10 The petitionermade a Ll dated 21 122009 objectingto the demand of the FCI HAFED and Food and Supplies with the pleathat the delivery of rice for the previous year 2008 was as perthe agreementand quality 4eVe and norms Petitioner insisted for takingdeliveryofthe rice for the season 200910 The petitioner has been served with the impugned noticedated 8l010 Annexure IlI issuedby the Area Manageraskingit to replacethe substandardstocks with stock of applicablespeciOcations for 1 Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 278 d 1911of2010 etce 9 r 200809within seven daysfailingwhich the Corporation reserves season therightto disposeof substandardrice stock delivered bythe petitioner at its risk andcosts without further notice and without prejudice to the legal includingbanningthe business dealingand to the State Government for blackisting This Ietter Annexure P was followed by another notice dated 152010 issued by the HAFED P29 advisingthe petitioner to replaceBRL rice m 6AnnexurePm29Both these letters are subjectmatter Of r in the presentpetitionThe petitioner submitteda detailedreply 0 0 dated252010 64nnexure P139to the FCI and HAFED Challenge to theseorders is primarily on followinggrounds t5 I i9The are not entitled to raise disputelll respectof the Z for the season 200809 at the time of deliveryof rice for the O season 200910 as both the transactionsare distinct and arise out differellt C agreements I C3 made duringthe season 200809 was duly acceptedas Z conforming to the prescribed and standards without any 00 objection and thus no disputeregarding its qualityand could a Z be raised in the next season 11 iii9Testsconducted allegedlyin respectof deliveryfor the year 200809 were at theback ofthe petitioner and without even informingthe petitioner 0v9Freshinspection has been carried out after a periodof more than six months of the deliverywhen the nce supplied to the FCI was stacked and left out to the vagariesof weather 1 9 There has been violation of principlesofnatural justice There are three sets of repliesfiled bythe respondentsThe replies Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 279 J 10 19110f2010etc flled bythe FCI and the HAFED do not disputethe facts stated by the Ravinder Malik District Food and Supplies Controller Karnal has statedthatthe miller was to deliver 67Io rice of the paddyduringthe year 200809 after millingto the FCI within the stipulated period1 crop upto3132009 This deliverywas madeas per thetermsand conditions of theagreementand milling of the petitiOner had be by District ManagerHAFED However no has the rice deliveredbythe petitioner after eightmonthsand refusedto 0 the 61rtherrice ofcropyear 200e10 vide letterdated 101 12009 0 40 In the replyfiled by noA and 5 FCI their action is t5 sought to be justifiedon the groundthat nce suppliedby the petitioner duringthe season 200809 was found to be substandard i e Below Z Limit againstthe laid down speciOcation for the relevant year It lS further mentionedthat a super inspection was carried out by Shri Janak tr Raj AGM QCI FCI Zonal Office North Noida and the analysisrepons 0 dated 23102009 to 28102009 64nnexuresR511A R511B R511Cl Z showsthat the stocks delivered bythe petitioner were below the laid down OO norms BRL and the petitionerwas required to replacethe same for 3 Z which sufficient opportunior was grantedto the petitionerIt is further allegedthat merelybecause stocks were acceptedby the FC1 petitioner cannot be absolved of its liability It 1S stated that in fact petitioner succeeded in deliveringthe Below RejectionLimit stocks in connivance C with the offlcials ofthe CorporationIt is lrther mentioned that ofScials of CorporationnamelyShri KCGarg Area ManagerS Dubey AGM QCI SllTGaba Managerand RajeshChaudharyTechnical Assistant were placedunder and chargeleetedSome ofthem have even been Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 280 e e 2 CWP No 1911of2010 etce 11 from serviceofthe FCI Accordingto noA and 5 216 MT rice deliveredbythe petitionerduring the periodfrom 122009 to 52009 was found to be Below Rejection Limit causingloss to the to the tune ofRsA6A8 lacs It is mentionedthat the petitioner W2S afforded an opportunity to replacethe substandardrice The allegations were not onlyagainstthe petitionerbut also againstnumber of othermillers It is furthermentionedthat the offer of the Corporation was by about 31 millers who replacedthe substandardrice supplied t during the season 200809 but the petitioner failed to do so 0 0 have also pleaded that there is an arbitrationclause beingClauseNo3 in 0 the agreemententered between the petitioner and respondent no6 which I inter alia providesfor settlement of all disputesby referringto the sole Z arbitration of the Director Food and Supplies Director C of the Agencyor any person appointedby them in this behalf The have thus challenged the ofthe writ petition CO The petitioner has filed replicationreiterating its stand in the writ Z petitionThe additional fact stated in the replicationis that even as per CQ inspection repon the inaction in the specicationis inequitableIt is Z lrther pleadedthat the allegedsuper inspectlonwas carried out after a m periodof more than six months and without any notice to the petitioner or associatingit with such inspection I have heard learned counsel for the partiesat iengthand carcfully 4neee gonethroughtherecord During the pendencyof this petition some interim orders were passedaskingthe FCI to acceptthe stocks of rice for the season 20092010 andpay 500Iofthe billingcharges Detailed interimorder in this regard was Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 281 e n1 CWP No 1911of2010 etc 12 April9 2010 This order passedin CWP No91 1 of 2010 was passed on extended to all thewrit petitions Issuesinvolved in this petitionare two foldse 6i supplyof substandardrice for the season 200809 ii9Supplyof custom millingof nce for the season 20092010 both the transactionswere under distinct and separate executed between the partiesgoverning the custom millin Of 1 paddyfor conversion to ricein accordance with the contractualstipulations andthe Scheme formulatedunder the 1985 Order It is common case ofthe 0 0 parties that all supplies were accepted bythe FCI from the petitioner for the C5 season200809 without any objection in respectof qualityspecication I quantitymode and manner of deliveryetc as under the Z Not onlythat the rice was acceptedeven paymentswere made to the petitionerand their securitydepositreleased by the HAFED Q obviously with the concurrence ofFCI Even FCI in its detailedcounter did C not disputethe deliveryof rice and the release of payments and security Z without any objectionThe case projectedby the FCl is that super OO lnspectloll was carried out by the officials of the FCI wherein the rice W2 Z suppliedby the petitioner was found substandardie Below Rejection ll LimitBRLl This inspection was carried out by the officials of the FCI after six months ofthe final supplybythe petitionerIt is pertinent to note that the supplyofthe rice was to be made in five phasesbetween October to 4 March At no stageduringthe periodof supplyspreading months over SlX any objectionwas raised regarding the qualityspecifications of the nce suppliedIt was onlywhen the entire supply was made and aer release of payments and securityand after six months the super inspection was said to Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 282 64 1 1 1 h9 CWP No 1911of2010 etce 13 be carried out No has been rendered by the FCl for not carryingout any inspectionor duringthe six months of supply periodor immediately on of supply To the contrary the have placed on record the analysisreportin respectofthe quality ofthe deliveryofrice made bythem These analysis were also carriedout bythe FCI Apartfrom above the test said to be conductedby the FCI duringsuper inspection was carriedout at the back of the It would have been more prudentto associate the petitioner r when duringsuper inspectionany deflciencywas noticed in the rice 0 0 bythe petitionerbut the FCI chose not to associatethe petitioner C5 the suppliers or even informthem It has also come on record that the custom milledrice was lyingin the depotof the FCI The condition under Z whichstoragewas made has not beenbrought on record Admittedlyrice 1S a perishable ltem It needs to be keptunder prescribed condition for longer 0 Iife If it is left to vagaries of weather it is open to perishNo such materialhas been brought on record or even pleadedin the replyregarding Z the storageconditions of the rice suppliedby the petitionerduringthe QO season 200809 In any case the petitioners were notputto any notice or Z an opponunityof beingheard regarding the quality Qm before canyingout the test or even at the time the test was conducted This hasresultedinto serious violation ofthe principlesofnaturaljusticeNotice to the petitionerwas givenonly with regardto replacement of the alleged 6aee substandard rice However at the time of determination whether the rice is substandardor not no notice was ever issued to the petitionerThus action ofthe in refusingdeliveryofrice for the season 20092010 is not under any circumstances have refened to Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 283 4 CWP No 1911of2010 etce 14 Y ofthe Honble SupremeCoun passedin the case of Tapan KumarSadhukhan vs Food Corporationof India and others199616 Court Cases 101 In this judgmentHonble Supreme Court has the need for improvingpublichealth While dealingwith the provlSlOns of Food Corporation of India Act 1964 it has been observed thatit is the obligation of the Stateor its agency to raise nutritionallevel andimprovepublichealth It has also been held that the State should not m allow food grainsto reach market for human consumption without the same so as to make it fit for human consumption 0 C While referringto this judgmentlt has been pleadedon behalf of I C5 that substandardrice cannot be utilized bythe State for supply underthe publicdistribution systemas lt 1S injurious to publichealth I fail Z to understand how this judgment is relevant ln SO far as the interesedispute betweenthe and is concerned Stateand its agencvs 0 obligation to providefood grainsflt for human to the needy I C0 persons who are dependent upon the Statesponsoredpublicdistribution Z system cannot be disputedHowever the questionin the presentpetition 1S OO breach of mutual contractual obligationsbetween the partiesand 7 Z thereof This judgment does not helpthe in any a except to obligatethem to supplyonlysuch food grainsas are Ot manner for human consumptionby upgradingthesubstandardfood grains have also pleadedagainstthe of the writ 4e petitlOIl on two counts flrstly that the writ petitioninvolves disputed questionsof fact and thus discretionaryremedyunder Anicle 226 of the Constitutionof India is not available to the petitionersSecondlythere 1S an arbitrationClause No23 in the contract agreementbetween the parties Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 284 e CWP No 1911of2010 etc 15 and the onlyremedyavailable to the petitioner 1Sto invoke the remedyby wayof arbitration It is true that the HighCourt while exercisingwrit jurisdiction under Article 226 of the Constitution should be reluctant to entertain a writ petitioninvolvingsenous disputed questions of fact However this is not a rule of law but a rule of discretion where the HighCourt exercises a self imposed restriction to avoid to adjudicate upon disputedquestions of fact m in exercise ofwritjurisdictionIn the presentcase there does not seem to be 0 any serious disputedquestions of fact so as to decline the pleaof the 0 C4 petitioner in the writ petitionWhat is soughtto be projectedas disputed C9 questions of fact is the supplymade by the petitionerduringthe season 20082009 have pleadedthat the nce suppliedwas Z substandard whereas the petitionershave pleadedthe same to be conforming to the prescribed quality The supplyof rice lts r quantttyetc 1S an admitted positionamongstthe partiesThe petitioners haveplacedon record analysis conducted bythe Food Corporation oflndia Z certifying the quality under the agreementand the r norms laid down by the Govemment of India This fact 1Snot disputedIt 7 Z has however been pleadedbythe that when a super inspection W was conducted after SlX months of the supplyrice supplywas found to be substandard Such tests were not conducted in the presence ofthe petitioner or with their association Under these circumstances it cannot be said that e1 there are serious disputedquestionsof fact The petitionersare disputing the analysisthe test conducted by the respondents at their back whereasthe respondents are disputingearlier analysisconducted by their own officials certi67ing the quality So what is being is the action Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 285 t CWP No 1911of2010 etce 16 oftheirown employees bythe This Court is not calledupon to decide aboutthe questionwhether the rice suppliedbythe petitionerduring the season 200809is substandard or not Court is onlyconcemed with the breachof contractual and the violation of the conditions laid downin theyear 1985 orderwhich is statutoryin nature Thus the pleaof the not to interferein exerciseof writ jurisdictiondeserves m rejectlorleThepetitioners have relied upon a judgment of the Honble Court passedin ABL Internation Ltd And another vs Export 0 0 Credit Guarantee of India Ltd And others200413 SCC C5 553 wherein Honble Supreme Court has held that even where there are I questions of fact and there is no absolute bar for thc Z writpetitionjurisdiction under Article 226 of the Constitutionof India can m l be exercised Honble Court has even gone to the extent of saying I that if facts requireoral evidence can also be taken in exerciseof writ C3 jurisdiction Where any break of contractual obligations arises out of Z violation of principlesof naturaljusticeor arbitrary actiOIl of Staterequires ao judicialscrutiny wnt jurisdiction can be exercised Relevant observations 7 Z are contained in paragraph8 of the aforesaid judgmentwhich are ll reproduced here under As could be seen from thearguments addressedin this appealand as also from thedivergent viewsofthe two courts below one ofthe questions that falls for our considerationis whethera writ petition under Article 226 of the Constitutionof India is maintainableto eWd enforcea contractualobligationof the Stateor its byan aggrieved party In our opinionthis question is no more res integra and is settledby a largenumberofjudicialpronouncementsof this Coun In KV Guruswamy Vs The StateofMysoreand others 1955 9 SCR 3051this Court held The next questionis whether the appellant can complainof this by way of a writ In our opinionhe could have done so in an ordinary case The appellantis interested in these contracts and has a right under the laws of the State to receive the same Rawat Seema 2014.05.03 13: 48 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 286 b Ie CWP No 1911of2010 etc 17 C treatment and be giventhesame chanceas anybody else We would therefore in the ordinary course have giventhe appellant the writ heseeks But owingto the time which this matter hastaken to reach us 6aconsequence for which the appellant 1S in