9911796707
TMI Blog1996 (10) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the High Court dated February, 1996 is in question in this appeal, Such writ petition was disposed by a common judgment along with other writ petitions being O.A. Nos, 13936 and 14454 of 1995, In the said other writ petitions, the constitutional validity of the circular dated 30.3.1989 issued by the Registrar of Co-operative Societies inter alia directing that all the Land Development Banks, District Co-operative Banks and Service Co-operative Banks in the State of Kerala would patronise RAIDCO to the fullest extent in preference to private dealers in the matter of purchase of Agro Machine under the scheme financed by the Bank/Societies and at in any rate not less than 75% of total requirement of such Agro Machines should be purchased through RAIDCO, was challenged. The High Court has also upheld the validity of such circular by the impugned judgment. It may be stated that in the circular dated 19.9.1995 issued by the Secretary to the Government of Kerala it was also indicated that pumpsets and accessories of the farmer's choice alone should be supplied and after sale service facility should be provided by suppliers/dealers. It was also indicated that the cost of pumps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Programme and other similar schemes, offends Articles 14 and 19(i) (g) of the Constitution. Mr. Venugopal has contended that private dealers in the State of Kerala have a fundamental right under Article 19(1)(g) of the Constitution to carry on the business or sale of pumpsets and dealership in the pumpsets without being subjected to any unreasonable restriction in such trading activities. The aforesaid circular imposes embargo on the farmers of eight districts covered by financial schemes introduced by the Government to purchase such pumpsets from any dealer of their choice. They have been compelled to select pumpsets to be offered by RAIDCO and KAICO only even if better terms and conditions of sale and after sales service are offered by private dealers. Mr. Venugopal has submitted that it does not require any imagination to accept that majority of the farmers will take the financial assistance under the schemes introduced by the Government for purchase of pump sets. If such majority of consumers of pumpsets are compelled to purchase from the said tow organizations, namely, RAIDCO and KAICO, the private dealers right guaranteed under Article 19(1) (g) to carry on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held violative of Article 19(1) (g) of the Constitution. Mr. Venugopal has contended that it has not been demonstrated that as a matter of fact the private dealers in the said eight districts were not supplying genuine pump set etc. or they were charging price for such implements at a rate higher that offered by RAIDCO or KAICO or that after sales service of the private dealers is unsatisfactory thereby causing hardship to the farmers purchasing pump sets etc. from the private dealers. Accordingly, there can not be any reasonable ground to give a favorable treatment to a particular dealer or dealers and by giving unjustified favorable treatment to such dealers. an unfortunate situation has been created by which right to free trading activities of the dealers in pump sets etc. is seriously infringed. Mr. Venugopal has also submitted that a vast majority of the purchasers of such pumps sets etc. are also being deprived of their unfettered right to choose the dealers of their choice of such pump sets because of the embargo on such farmers who have been given financial assistance under the schemes of the State Government that they are to take delivery of pump sets only from tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the score of offending Article 14 of the Constitution. Mr Venugopal has submitted that the impugned circular has resulted in creating a discriminatory monopoly in favour of only two dealers in the eight districts of the State in the dealership business because by and large most of the farmers purchasing pump sets etc. are covered by schemes introduced by the Government. Mr. Venugopal, therefore, has submitted that the hostile discrimination meted out to the farmers of eight districts and also dealers in pump sets etc. without any just reason, must be held violative of Articles 14 and 19 of the Constitution and should be struck down by this Court by allowing this appeal. Mr. K.N. Bhat, learned Additional Solicitor General appearing for the State of Kerala, has however disputed the contentions of Mr. Venugopal. He has submitted that no action has been taken by the Government to regulate or control the business of dealership of pump sets etc. in the State of Kerala. Hence question of violating the fundamental right guaranteed under Article 19 (i) (g) of the Constitution does not arise. Mr. Bhat has submitted that unless any action has a direct impact on the right to carry on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration pursuant to the orders of the Central Government under Section 27A results in denial of the allotment of wagon to the petitioners, the restriction will none-the -less be reasonable because petitioners are not wholly denied the allotment of wagons. (Emphasis Supplied) Mr. Bhat has contended that trading activities in pump sets etc have not been controlled or regulated. Even within the area comprising the said eight districts, any dealer is free to carry on its trading activities in respect of pump sets. By the impugned circular, the State Government has only ensured that farmers in the said eight districts who have been given financial assistance under a scheme of the Government, should take delivery of pump sets from RAIDCO and KAICO, Any other farmer or purchaser is quite free to choose his dealer. Such limited restriction is' also not there in respect of farmers, even though covered by the financial assistance under the scheme of the Government, who are outside the area comprising the said eight districts. It is, therefore quite apparent that there is no total ban of purchase of pump sets from private dealers in the State of Kerala. Mr. Bhat has submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to large number of dealers. Nor is it a practicable proposition to keep proper watch and supervision in the functioning of large number of dealers. Therefore selection of the said two dealers is neither unreasonable nor capricious. Mr. Bhat has also submitted that for the entire state of Kerala, the said two dealers could have been selected by the State Government as approved dealers. But as Co- operative movement is less organised in areas outside the said eight districts, the State Government did not feel any necessity to ensure purchase of pump sets in such areas only from said two dealers. Mr Bhat has, therefore, submitted that any interference by this Court against the impugned judgment is not called for and appeal should be dismissed. Mr Dipankar Gupta, learned senior counsel appearing for the other respondents, has also supported the contentions of Mr Bhat. Mr. Gupta has submitted that RAIDCO is a state owned co-operative society having large number of branches in the State of Kerala. It has also the dealership of almost all brands of pump sets. It also manufactures pump sets in collaboration with Kirlosker,RAIDCO has elaborate arrangement for after sales service. KAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular, they have suffered any prejudice whatsoever, The selection of two dealers in northern region of the State is not only within the right and competence of the State Government but such selection is not also otherwise arbitrary, capricious and unreasonable. Hence, question of infringement of Articles 14 and 19 of the Constitution does not arise. The appeal should, therefore, be dismissed. After giving our careful consideration to the facts and circumstances of the case and submissions made by the learned counsel for the parties, it appears to us that the fundamental right for trading activities of the dealers in pump sets in the State of Kerala as guaranteed under Article 19(1) (g) of the Constitution has not been infringed by the impugned circular. Fundamental rights guaranteed under Article 19 of the Constitution are not absolute but the same are subject to reasonable restrictions to be imposed against enjoyment of such rights. Such reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the clauses under Article 19(1) and the social control permitted by the clauses (2) to (6) under Article 19. The reasonableness of restriction is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (supra)]. But in the instant case, no fundamental right guaranteed under Article 19(1) (g) of the Constitution has been infringed. Hence, question of invalidity on account of imposition of reasonable restriction on the exercise of such right by executive order instead by a statute does not arise in the facts of the case. It may be indicated that although a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the Government or any other individual for doing business with him. Any government or an individual has got a right to enter into contract with a particular person or to determine person or person with whom he or it will deal. In the instant case, the farmer or agriculturist who has chosen to receive subsidies or financial assistance under the schemes of the Government has an obligation to accept the terms and conditions for such assistance. One of such condition is that in the northern region of the state. Pump set for which financial assistance has been given is to be purchased from the approved dealers of the Government. The private dealer cannot insist that the Government is also to enter into contract with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l assistance under the scheme on various terms and conditions. In our view the impugned circular does not offend Article 14 of the constitution. The direction contained in said circular cannot be held to be vitiated being arbitrary,capricious or unreasonable. The impugned circular specifically mentions that in order to implement the schemes introduced by the Government for streamlining specific rules and responsibilities of different agencies involved, the directions contained in the circular have been given. It has been placed on record that it was brought to the notice of the agricultural department of the State Government that false invoice had been issued by dealers with out effecting actual sales with a view to draw loans, subsidies and other financial benefits from the Government. Reports were published in newspapers about wide spread manipulation and irregularities in the activities of various dealers in the pumpsets. It is also not in dispute that RAIDCO is only government controlled co-operative society in the State of which eighty per cent capital was subscribed by the Government. The other approved dealer KAICO is also a Co- operative society involved in dealership of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
