Case: Mohd. Rajab Gujari Vs. The State of Jammu and Kashmir and Anr

2. The appeal was originally disposed ofas the respondents did not appear before this Court to contest the appeal. Subsequently, on the motion of the respondents, the decree was set aside. That is how the appeal has come up for hearing again.3. The facts of the case lie in a short compass. The appellant offered to supply milk to the S.M.H.S. Hospital, Srinagar, in pursuance to a tender notice issued by the Superintendent of the hospital at the rate of Rs. 15.90 per maund. The offer was accepted on March 20, 1961, and the agreement was for supply of milk from April 1, 1961, to March 31, 1962. A formal contract recording the agreement was drawn up on May 17, 1961. One of the conditions in the agreement was that if milk became a controlled article during the period of agreement, the contractor shall be paid at the controlled rate for the supply of the articles made by him. This is practically the same as paragraph 12 of tender notice. In pursuance to the agreement, the appellant supplied milk to the hospital during the period of the agreement. The price of milk was controlled by virtue of a notification issued on May 2, 1961, and this control remained in force till the end of the contract period, namely, March 31, 1962. The case of the appellant was that although he agreed to supply milk at the rate of Rs. 15.90 per maund, as the controlled price Rs. 25 per maund, he was entitled to be paid at this rate after the date of the notification controlling the price. He therefore, claimed price of milk at the rate of Rs. 25 per maund from May 2, 1961, to the end of March, 1962, and filed the suit.4. The defendants contended that there was no control by Government of the price of milk in the strict sense of the term and that the appellant, having agreed to supply milk at the rate of Rs. 15.90 per maund, could not take advantage of the control of the price of milk, and, therefore, he was not entitled to be paid at the rate of Rs. 25 per maund for the period in question.5. A learned Single Judge of the High Court, who tried the case, came to the conclusion that the appellant was entitled to the price mentioned in the notification and decreed the suit on that basis. The State filed an appeal against the decree before the Division Bench. The Division Bench reversed the decision dismissed the suit.

Reasoning: 7. The Division Bench wasthe view that the notification did not control price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.8. The notification in question runs as follows :In exercise of the powers vested in me under Section 3 of the Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I. S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designed controller General under 2(c) of the said Act vide notification datedissued under Home Secretariat No. S.59 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each :* * * *Milk Rs.per seer.When a government fixes the maximum price of a commodity, it is because the price, if uncontrolled, is likely to rise very high. There can be no doubt also that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even through there is no bar to his selling the same at a lower price.9. In fact, the appellant has examined eight witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk by the notification, the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk went up in the market after the notification. As already stated, the positive evidence of PWs 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.10. The relevant clause in the agreement runs as follows :The contractor shall be paid at the rates against each of the article was as below for the supplies to be made by him :Cr. No. S. No. Name of articles Approved rate/Quantity requiredII 3 Milk 4200 maunds; Rs. 15.90 (Rupeesfifteen and ninety naya paise).Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him.11. The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".