Case: R.S. Seth Shanti Sarup Vs. Union Of India &amp; Ors

the Act, nor was there any notification to that effect published by the Government. The third and the most material objection raised by the learned counsel is that the powers of control exercisable under the sub-section cannot extend to dispossessing the owners from the undertaking and vesting the same in the authorised controller giving him unfettered discretion to dispose of and transfer the assets. It is argued by the learned counsel that once it is held that S. 3(f), Industrial Disputes Act does not contemplate an order of this description S. 3B, which was introduced by the amending Act of 1950, could not improve the position and be of any assistance to the respondents.8. Coming now to S. 3(4), Essential Supplies Act under which the order of the Central Government is passed, the language used is as follows : The Central Government, so far as it appears to it to be necessary for maintaining or increasing the production and supply of an essential commodity, may by order authorise any person (hereinafter referred to as an authorised controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order, such functions of control as may be provided by the order and so long as an order made under sub-section is in force with respect to any undertaking or part thereof. (a) the authorised controlling shall exercise his functions in accordance with any instruction given to him by the Central Government, so however that he shall not have any power to give any direction inconsistent with the provisions of any Act or other instrument determining the functions of the undertaken except in so far as may be specifically provided by the order; and (b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller in accordance with the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions." 9. Here again what the Central Government is empowered to do is to authorise any person to exercise, with respect to any undertaking engaged in the production and supply of essential commodity such functions of control as may be provided by the order and which are necessary for maintaining or increasing the production and supply of the commodity. The exercise of control, it is said connotes the issuing of directions under which the management is to do or refrain from doing something. It cannot under any circumstance amount to divesting the management or the owners of the property and, taking it over from them. As the mills were already closed and were not functioning at all, strictly speaking no. question of exercising control of maintaining or increasing supplies of any essential commodity could possibly arise. 10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learned Attorney-General appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passed. He has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into force. We do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the properties. The order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies Act. But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the Constitution. We have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution. 11. The result is that in our opinion the order of the Central Government dated 31-10-l952, as well as the earlier order passed by the U. P. Government on 21-7-1949, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his co-partners. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learnedl appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passedHe has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into forceWe do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the propertiesThe order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies ActBut even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the ConstitutionWe have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution11. The result is that in our opinion the order of the Central Government dated, as well as the earlier order passed by the U. P. Government on, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession.