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G.P. Mathur, J.—This petition under Article 226 of the Constitution has been filed for quashing the F.I.R. u/s 3/7, Essential Commodities Act (for short E. C. Act) lodged on 4.1.97 at P.S. Gobhana, District Aligarh, on the basis of which Case Crime No. 2 of 1997 has been registered and also the seizure memo of the same date.
The allegations in the F.I.R. is that the premises of Aligarh Roller Flour Mills Private Limited (hereinafter referred to as ''Mills'') were inspected on 4.1.97 and the stock register showed that 8,804.09 qtls. of wheat had been stored in the godown of the Mills and 14,644.63 qtls. of wheat had been stored by it in the godowns of State Warehousing Corporation. Besides above, 1,566.60 qtls. wheat was under processing and thus the total stock of wheat with the Mills was 25,015.32 qtls. According to the records of Regional Food Controller, the milling capacity of the Mills was 11,340 qtls. per week and thus the Mills was having a stock of 13,675.32 qtls. of wheat in excess of one week''s milling capacity. The Mills had, thereby, contravened the provisions of U. P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 as amended by Fifteenth Amendment which came into force on 10.12.96 and U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 as amended by Twentyninth Amendment.
In order to appreciate the contentions raised, it is necessary to notice the provisions of the Control Orders. In exercise of powers conferred by Section 3 of E. C. Act, the Government made the U. P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 (hereinafter referred to as ''the Control Order, 1982''). Clause 2 (1) of the Control Order defines a "manufacturer" and it means a person engaged in the business of milling or processing of foodgrains or manufacturing food-stuff from there. The relevant part of Clause 4 of the Control Order, as it originally stood, which has bearing on the controversy in dispute is reproduced below :
Clause 4 (1) "No retailer, whole-seller, commission agent, or manufacturer shall at a time have in his stock food-grains in excess of the limits specified below:
(One) Wheat--
(a) Retailer - 50 qtls.
(b) Whole-seller - 150 qtls.
(c) Commission agent - 150 qtls.
(d) Manufacturer - A quantity corres-ponding to the thirty days of manufac-turing capacity.
.....
The Control Order was amended on 7.5.88 and the period of ''thirty days'' for a manufacturer as provided in Sub-clause (d) was substituted by ''seven days''. In exercise of powers conferred by Section 3 of the E. C. Act, the Government made U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 on 31.8.89. Clause 11 of this Control Order provides that no dealer either by himself or any person on his behalf store or have in possession at any time any scheduled commodity in excess of the quantity specified therein. With regard to wheat, the quantity specified is stock limit according to provisions of Clause 4(1)(i) of the U. P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 as amended from time to time. The Control Order, 1982 was amended by Fourteenth Amendment Order, 1993 which came into force on 26.6.93 by which Clause 4 (1) relating to stock limit was amended and the item relating to wheat was altogether omitted. The result of this amendment was that with effect from 26.6.93 there ceased to be any limit for holding a stock of wheat and thus a dealer or manufacturer could have unlimited quantity of wheat in his stock. U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 was also amended by Twenty-sixth Amendment Order on 31.1.95 and from Clause 11 wheat was omitted. Consequently, the dealers were not required to have any licence in order to carry on business of sale or purchase of wheat with effect from 31.1.95.
The Government issued U. P. Foodgrains (Procurement and Regulation of Trade) (Fifteenth Amendment) Order, 1996 on 10.12.96 whereby Sub-clause (i) of Clause 4 (1) of the U. P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 was amended and a stock limit for wheat was reintroduced which for a manufacturer became "a quantity corresponding to seven days manufacturing capacity". U. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989 was also amended by Twentyninth Amendment Order, 1996 on 16.12.96 and in Clause 11 with regard to wheat the words "no limit" were substituted by--"stock limit according to the provisions of Clause 4 (1) of U. P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 as amended from time to time."
The position of the Control Orders described above would show that after 26.6.93 a manufacturer could have an unlimited quantity of wheat in his stock and the law did not impose any kind of restriction at all for keeping only a limited stock. The position completely changed with the promulgation of Fifteenth Amendment Order on 10.12.96 and a limit of seven days manufacturing capacity was imposed with regard to a manufacturer.
Sub-section (2) of Section 5 of the U. P. General Clauses Act provides that unless the contrary is expressed, an Uttar Pradesh Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. This provision is similar to Section 5 (3) of the General Clauses Act, 1897. In Commissioner of Income Tax, Punjab, Patiala Vs. R.B. Jodha Mal Kuthiala, , it has been held that Amending Act which was brought into force on April 1, 1939 must be deemed to have come into operation at a point of time immediately on the expiration of March 31, 1939. By virtue of Section 6 of E. C. Act a Control Order has an overriding effect and, therefore, its position is similar to that of an enactment made by the Legislature. The U. P. Foodgrains (Procurement and Regulation of Trade) (Fifteenth Amendment) Order, 1996 by which the Control Order, 1982 was amended was issued on 10.12.96 and, therefore, it shall be deemed to have come into operation at a point of time immediately on the expiration of 9.12.96. The moment the day 9th December ended, the day 10th December started as the time does not stop running. There is no interregnum, not even a millionth or a billionth of a second between the expiration of 9th December and commencement of 10th December. If a manufacturer had wheat in his stock in excess of seven days manufacturing capacity on 9th December, 1996 he was not contravening any provision of the Control Order and it was perfectly lawful. But the moment 10th December, 1996 commenced it amounted to contravention of the Control Order and became an offence not on account of any act or omission on his part but by operation of law. The Control Order has the effect of making a wholly lawful act or state of affairs, unlawful. On a practical plain, all such manufacturers who had a stock of wheat in excess of seven days manufacturing capacity at the close of business hours on 9.12.96 were landed in situation where they became guilty of an offence under the E. C. Act when they reopened their unit at the commencement of the business hours on 10.12.96. A manufacturer may have been admitted in a hospital with a serious ailment fighting for life or may have gone to a place far away from his manufacturing unit in connection with some work or pilgrimage but by operation of a law made by the Government he became a criminal on 10.12.96.
It may be noticed that for making an enactment by the Parliament the procedure is contained in Articles 107 to 111 of the Constitution. A bill has to be introduced in either houses of Parliament (except for money and financial bills) and after it has been passed by both the houses it has to be presented to the President who has to give his assent thereon. Similar provision is contained in Articles 196 to 200 with regard to enactments made by State Legislature. The whole process take some time and, therefore, a person may get advance notice of an enactment which is in the offing and he may adjust his affairs accordingly. But a Control Order is issued in no time as it is not presented in either houses of Parliament or Legislatures of the State and thus a person who is likely to be affected by such Control Order can get absolutely no advance notice of the same.
Sri S. P. Gupta learned senior counsel and Sri Ramendra Asthana have submitted that the provisions of the Control Order violate the guarantee enshrined under Article 20(1) of the Constitution and, therefore, they are liable to be struck down. Sri Yatindra Singh learned Addl. Advocate General and Sri Mahendra Pratap learned A.G.A. have, on the other hand, submitted that Article 20(1) can have no application at this stage as the Petitioners have neither been convicted nor have been subjected to any penalty. In order to examine the contentions advanced, it is necessary to understand the nature of the conditions imposed by the Control Order, contravention of which amounts to an offence u/s 7 of the E. C. Act. Clause 4 of the Control Order after its amendment on 10.12.96 provides that no manufacturer shall at a time have in his stock wheat in excess of a quantity corresponding to seven days manufacturing capacity.
The dictionary meaning of the word "stock" is as under:
The New Lexicon Webster''s Dictionary:
An accumulation of things which is maintained as a constant source of supply esp. as the basis of a store keepers or manufacturer''s business.
Black''s Law Dictionary:
The goods and wares of a merchant or tradesman, kept for sale and traffic.
Oxford English Reference Dictionary:
A store of goods etc. ready for sale or distribution etc. ; a supply or quantity of anything for use ; equipment or raw material for manufacture or trade etc.
Websters Third New International Dictionary:
Used or employed for constant service or application as if constituting, portion of a stock or supply, kept regularly in stock or ready for sale or for immediate use ; suggesting something regularly kept in as if in stock or ready for use.
"Stock", therefore, signifies some quantity of goods which is kept in readiness for business or use. In reality it is a state of affairs which comes into being by some positive act or acts of acquisition. Unless some act of physically acquiring goods is performed, there can be no accumulation of goods and consequently there can be no stock. In order to have a stock, it is also necessary that there should be an omission to part with the goods after they have been acquired. If the goods are acquired and simultaneously or subsequent thereto, they are parted with, there can be no building of stock. A stock is, therefore, built up by some positive acts of acquisition and omission to part with the same. No stock can be made or created without some positive acts of acquisition.
Sub-clause (1) of Article 20, which finds place in Chapter III of the Constitution, provides that no person shall be convicted of any offence except for violation of a law in force at the time of commission of the Act charged as an offence. While drafting Chapter III relating to fundamental rights, the framers of our Constitution borrowed heavily from the American Constitution. Section 9, Article 1 of U. S. Constitution, as adopted on July 4, 1776, provides that no Bill of attainder or ex-post facto law shall be passed and Section 10 of the same Article lays down that no State shall pass any Bill of attainder or ex-post facto law. As early as 1798, the U. S. Supreme Court explained different facets of this constitutional guarantee in Calder v. Bull 1 L Ed 648, and one of the important facet is that a statute which punishes as a crime a previous act that was innocent when committed violates the constitutional prescription against ex-post facto law. This view has been reiterated in Fletcher v. Peck 3 L Ed 162; Beazell v. Ohio 269 US 167 and Dobbert v. Florida (1977) 432 US 282. Recognising that the constitutional prohibition of ex-post facto laws and the judicial interpretation of it, rest upon the notion that laws which purport to make innocent acts criminal after the event, are harsh and oppressive, the U. S. Supreme Court in Beazell v. Ohio has stated that the criminal quality attributable to an act, either by the legal definition of the offence or by the nature or amount of the punishment imposed for its commission, cannot be altered by legislative enactment, after the fact, to the disadvantage of the accused. This legal position has also been stated in 16 American Jurisprudence 2d para 396 and 16A Corpus Juris Secundum para 435.
The Courts in England also lean against the retrospective operation of laws. In Philips v. Eyre (1870) L.R 6 : it was held as under :
Retrospective laws are no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time deal with future acts, and ought not to change the character, of past transaction carried on upon faith of the then existing law.
In R. v. Kirk (1985) 1 All ER 453, the Court of Justice of the European Economic Community observed as follows :
The principle that penal provisions may not have retrospective effect is one which is common to all the legal orders of the member states and is enshrined in Article 7 of the European Convention for the protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950 TS 71 (1953) ; Cmd 8969, as a fundamental right ; it takes its place among the general principles of law whose observance is ensured by the Court of Justice.
This doctrine was recognised even in ancient times will be clear from the following passage on the topic of legislation in "Jurisprudence--The Philosophy and Method of the Law" by Edger Bodenheimer (First Indian Reprint 1996) at page 327 :
Another typical feature of a legislative act, as distinguished from a judicial pronouncement, was brought out in Mr. Justice Helmes''s opinion in Prentis v. Atlantic Coastline Co., 211 US 210, at 226. As he pointed out in this opinion, while a "judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist," it is an important characteristic of legislation that it "looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." These passages must be understood as elucidating certain normal and typical aspects of legislation rather than stating a condition sine qua non, as essential condition, of all legislative activity. The large majority of enactments passed by legislatures take effect ex nunc. that is, they are applied to situations and controversies that arise subsequent to the promulgation of the enactment. It is a fundamental requirement of fairness and justice that the relevant facts underlying a legal dispute should be judged by the law which was in existence when these facts arose and not by a law which was made post factum (after the fact) and was therefore, necessarily unknown to the parties when the transactions or events giving rise to the dispute occurred. The Greeks frowned upon ex post facto laws, laws which are applied retrospectively to past-fact situations. See Paul Vinograd off, Outlines of Historical Jurisprudence, II, 139-140 ; of Elmer E. Smead, "The Rule Against Retrospective Legislation ; A Basic Principle of Jurisprudence," 20 Minnesota Law Review 775 (1936). The Corpus Civilis of Justinian proclaimed a strong presumption against the retrospective application of laws. Code 1, 14, 7: "It is certain that the laws and constitutions regulate further matters, and have no reference to such as are past, unless express provision is made for past time, and for matters which are pending." S. P. Scott, The Civil Laws (Cincinnati, 1932). Bracton introduced the principle into English law. Henry de Bracton, De Legibus ; et Consuetudinibus Angliae, ed. G. E. Woodbine. Coke and Blackstone gave currency to it ; Edward Coke, The Institutes, 4th ed. (London, 1671), P. 292 ; William Blackstone, Commentaries on the Laws of England, ed. W. C. Jones (San Francisco, 1916), Vol. I, Section 46. and the principle is recognized today in England as a basic rule of statutory construction. In the United States, ex post facto laws in criminal cases and retrospective state laws impairing the obligation of contracts are expressly forbidden by the terms of the federal Constitution ; in other types of situations, a retrospective legislative infringement of vested rights may present a problem of constitutional validity under the due process clause of the Constitution.
Article 11 (2) of the Declaration Human Rights of the United Nations lays down that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law at a time when it was committed. Similarly Article 7 of the Convention for the protection of Human Rights and Fundamental Freedoms lays down that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at a time when it was committed. India is a member of the United Nations Organisation and is also signatory to the aforesaid Conventions. In His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, (at page 333), Sikri C. J. held that in view of Article 51 of the directive principles, the Court must interpret the language of the Constitution, if not intractable, in the light of the United Nation Charter and Solemn declaration subscribed to by India. Following this in Peoples Union for Civil Liberty v. Union of India, (1977) 1 SCC 301, the Court held that it is almost accepted proposition of law that rules of customary International Law shall be deemed to be incorporated in the domestic law. Applying the said principle, Sub-clause (1) of Article 20 should also be interpreted in conformity with the United Nations Charter and Conventions and a liberal construction has to be given to the language used therein. We have taken similar view in Phoolan Devi v. State of U. P. and others, Criminal Misc. Writ Petition No. 359 of 1997, decided on 31.3.1997 and it is not necessary to reiterate the different aspects of constitutional guarantee enshrined in Sub-clause (1) of Article 20 considered there.
Offence has not been defined in the Constitution but it has been defined in Section 3(38) of the General Clauses Act and it means any act or omission made punishable by any law for the time being in force. By virtue of Article 367, the same definition will apply for interpreting Clause (1) of Article 20. It is only certain type of acts or omissions by a person which may amount to an offence if the law so enjoins. In absence of any positive act or omission, there can be no offence. The real import of Sub-clause (1) of Article 20 is that those acts or omission which were not punishable under law when they were committed cannot be made punishable by law made subsequent to those acts or omissions. The protection afforded is against converting innocent acts or omissions into a criminal act by operation of law. As shown earlier, a stock is created or maintained by some positive acts of acquisition and omission to part with the same. These are the necessary ingredients for creation of a stock and they are antecedent to a point of time when a stock comes into existence. The effect of the Control Order is that the acts and omissions done prior to the date of its issuance, which resulted in building up the stock, have been rendered culpable. The Control Order, therefore, clearly violates the guarantee enshrined in Clause (1) of Article 20.
Learned Counsel for the Petitioners have placed reliance on Mohammad Shafique Vs. The State, , in support of their submission that the Control Order violates Article 20(1). The case required interpretation of Influx from West Pakistan (Control) Ordinance (No. 17) of 1948 which was enacted by the Central Government on 19.7.48 and subsequent legislation on the subject. The accused was granted temporary permit by the High Commissioner for India in Pakistan authorising him to stay in India from 25.7.48 to 25.9.48. However, even after expiry of the permit the accused continued to stay on. On 10.11.48 the influx from Pakistan (Control) Ordinance (No. 34) of 1948 was made and on 23.4.49 influx from Pakistan (Control) Act, 1949 was enacted. The accused was charged with committing an offence punishable u/s 4 of the Ordinance No. 17 read with Rule 12 of the Permit System Rules, 1948, Section 9 (2) of Ordinance No. 34 and Section 9 (2) of Act No. 1949 for not returning to Pakistan on or before 25.9.48 and was convicted u/s 5 of the Act No. 1949. The Court ruled as follows :
...the applicant overstaying in India did not commit an offence against Ordinance No. 17, that Ordinance No. 34 was prospective and not retrospective and applied to persons who entered into India after its enactment, that the act of overstaying was not a continuous act, that Article 20 of the Constitution prevented retrospective effect being given to Clause (5) of Ordinance No. 34 and that the position was not altered by the influx from Pakistan (Control) Act, 1949 and that the applicant was not guilty. ....
The learned Addl. Advocate General has, however, referred to State v. Hyder Ali AIR 1955 Hyd 128 where a contrary view was taken while considering the same provisions. The Full Bench by a majority held that Article 20(1) had not been violated as the accused was not charged for any act committed by him before Amending Ordinance No. 22 of 1950 came into force and that after the Ordinance was introduced, any stay after the period fixed in the permit came within the mischief of Rule 19 and the omission to leave India constituted an offence. These decisions have been considered by Shri H. M. Seervai in his book ''Constitutional Law of India'' and the eminent author has expressed his view as under :
.... That the view taken by Allahabad High Court is correct on the ground that when the permit was granted, it was not an offence to overstay on the expiry of the permit and the overstaying was complete as soon as permit expired. If it was not punishable at that time, it could not, without violating Article 20(1), be made punishable by a law or a rule subsequently enacted.
See para 11.106 page 759 Vol. I, Third Edition 1983.
It may be pointed out here that the case in hand stands on better footing as the accused in the above cited cases were foreigners who had come to India under a permit granted for a fixed period and, therefore, at least they knew before hand that after expiry of the permit, their stay in India would be unauthorised and consequently illegal.
Learned Addl. Advocate General has referred to some English and American cases which may now be considered. In Waddington v. Miah (1974) 2 All ER 377, while examining the provisions of Section 34(1) (a) of the Immigration Act, 1971 which lays down that the Act, as from its coming into force, shall apply in relation to entrants or other arriving in the U. K. at whatever date before or after it comes into force, Lord Reid with whom all other Law Lords agreed, observed as follows :
I cannot see how Section 34 (1) (a) can be construed as having any reference to what any entrant may have done in this country before the Act came into force. All that it does is to subject to the provisions of the Act for the future, any one who entered in the past." (Emphasis supplied) We do not see how the observation "what any entrant may have done in this country before the Act came into force" be of any assistance to the State. The view taken in this case rather than supporting the contention of the learned Addl. Advocate General supports the Petitioners. Strong reliance is also placed on Chicago and A. R. Co. v. Transbarger (1914) US 66. It is necessary to quote the relevant part of judgment which is as under :
...The argument that in respect of its penalty feature the statute is invalid as an ex post facto law is sufficiently answered by pointing out that Plaintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the Act of 1907, but because after that time it maintained the embankment in a manner prohibited by that act. The argument to the contrary is based upon a reading of the section that applied the limiting clause "within three months after the completion of the same" to railroads already in existence as well as to those to be constructed thereafter. The result is, according to the argument, that as the road of Plaintiff in error was constructed upon a solid embankment at least as early as the year 1895, the act was violated as soon as enacted. This construction is so unreasonable that we should not adopt it unless required to do so by a decision of the State court of last resort. The language of the section as it now stands: "It shall be the duty of every corporation..............owning or operating any railroad or branch thereof in this state, and of any corporation.............. constructing any railroad in this State, within three months after the completion of the same through any country in this state, to cause to be constructed and maintained suitable openings." etc., seems to us to be more reasonably construed as prescribing the express limit of three months only with respect to railroads afterwards constructed, and as allowing to railroads already in existence a reasonable time after the passage of the enactment within which to construct the openings. In adopting this meaning, we have regard not merely to the phrases employed, but to the previous course of legislation, which is set forth in the briefs, but need not be here repeated. Whether we are right or wrong about this, the duty to construct transverse outlets having originated with the Act of 1907, the statute is of course to be construed as allowing some time--either three months, or a reasonable time more or less than that period--for their construction by railroads already in existence....
It is important to note that the statute was interpreted in a manner which allowed three months'' time to already existing railroads to construct the opening. Harisiades v. Shaughnessy 342 US 580, relates to deportation of an alien and has no bearing on the controversy in hand. In Samuels v. McGurdy 267 US 188, the majority no doubt held that a statute, making possession of liquor lawfully acquired unlawful, is not ex post facto so far as it affects continued possession in the future. But the case arose out of a plea of injunction for restraining the destruction of seized liquor and did not relate to criminal prosecution. Even here Justice Butler in his minority opinion held that the law was arbitrary and oppressive.
Learned Addl. Advocate General has raised an alternative submission that even if the Petitioners are protected by the constitutional guarantee under Clause (1) of Article 20 for their hoarding a stock in excess of the prescribed limit on 10.12.96, the said provision cannot afford any immunity to the Petitioners on 4.1.97 when the F.I.R. was lodged. It is urged that it is a continuing offence which was recurring every day and as the Petitioners had not taken any steps to reduce the stock and continued to hold excess stock even on 4.1.97, they are clearly quality of having contravened the provision of law. The contention raised has no substance. What is a continuing offence has been explained in Commissioner of Wealth-tax v. Suresh Seth, AIR 1981 1106:
.... Section 18 of the Act however, does not require the Assessee to file a return during every month after the last day to file it is over. Non-performance of any of the acts mentioned in Section 18 (1) (a) of the Act gives rise to a single default and to a single penalty, the measure of which, however, is geared up to the time lag between the last date on which the return has to be filed and the date on which it is filed. The default, if any committed is committed on the last date allowed to file the return. The default cannot be one committed every month thereafter.... Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. .... The offence was complete at a point of time when the day 10th December, 1996 commenced and it cannot be said to be a continuing offence. Even if the Petitioner had reduced their stock and brought it within the prescribed limit subsequently, it could not mitigate or wipe out the offence committed at the time of commencement of the day 10th December. The Control Order makes no provision for reducing the stock within a time limit and consequently the inaction on the part of the Petitioners in not bringing the stock within the prescribed limit by 4.1.97 can be of no consequence.
A formidable challenge to the maintainability of the writ petition has been raised by the learned Addl. Advocate General. The Aligarh Roller Flour Mills had filed Writ Petition No. 41981 of 1996 through its Managing Director Ram Pal Juneja on 27.12.96 praying that a writ of mandamus be issued directing the Respondents not to prosecute the Petitioner u/s 7 of E. C. Act and not to interfere with the working of the Flour Mill for sixty days or for such time which the Court thought fit so as to enable the Petitioner to adjust its stock in conformity with the prescribed limits contained in Clause 4 of the Control Order as amended by Fifteenth Amendment Order, 1996 and the writ petition was dismissed on 17.1.97. It is urged that the present writ petition is barred by the doctrine of constructive res judicata as held in Sharadchandra Ganesh Muley Vs. State of Maharashtra and others, . Learned Counsel for the Petitioners has submitted that the principles of constructive res judicata would not apply where the constitutional validity of an enactment has been challenged in a subsequent petition and has placed reliance on Nand Kishore Vs. State of Punjab, . In this case, the Appellant was compulsorily retired from services in January, 1961 under Rule 5.32 of the Punjab Civil Services Rules and the retirement order was challenged by filing the writ petition which was dismissed in February, 1962. Subsequent thereto, Rule 148 (3) of the Railway Rules which was identical to Rule 5.32 of Punjab Civil Services Rules was held to be unconstitutional in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., . The Appellant thereafter filed a civil suit for declaration that the order of compulsorily retirement was invalid. A Full Bench of the Punjab High Court held that the suit was barred. In appeal, the Apex Court held that the principles of constructive res judicata could not apply as the writ petition had been filed on the footing that the rule was valid and its vires had not been challenged.
In Writ Petition No. 41981 of 1996, it was held that power had been delegated to the State Government u/s 5 of E. C. Act to make a Control Order, therefore, it was neither invalid nor violative of Article 19(1)(g) of the Constitution. The judgment shows that the question that the Control Order violated the provisions of Articles 14 and 20(1) of the Constitution was neither raised nor considered. We feel that there is a stronger reason for holding that present petition is not barred. This petition has been filed by four persons, namely, Bankey Lal Agarwal, Hazari Lal Vijai, Smt. Sunita Juneja and Tajwant Kalra and they have described themselves as Directors of M/s. Aligarh Roller Flour Mills (Pvt.) Ltd. They themselves in their own capacity had not filed any writ petition earlier and it is a first writ petition at their instance. There is a difference between a company and its shareholders. It has been held in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, that a company and the shareholders are in law separate entities. In para 43, it has been held that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligation separate from those of its individual members. Therefore, the earlier writ petition filed by Aligarh Roller Flour Mills cannot be said to have been filed by the Petitioners. Apart from this, the Petitioners seek quashing of the F.I.R. and in a criminal case principles of constructive res judicata as contained in Section 11, Code of CPC have no application. The doctrine applicable there is that of issue estoppel which cannot be pressed here as the writ Petitioners were not before the Court in the earlier case. Therefore, the present writ petition is not barred in so far as it seeks quashing of the F.I.R. which was lodged on 4.1.97. However, the second relief claimed in the present writ petition regarding quashing of the seizure of wheat cannot be granted as the same belonged to the company which had filed the earlier petition.
It is averred in paras 32 to 34 of the writ petition that the company had not purchased any wheat after the amendment of the Control Order and in the counter-affidavit, no specific reply to the same has been given. However, it is not possible to record a definite finding on this point in present proceedings under Article 226 of the Constitution and this factual aspect can only be examined by the authorities.
The writ petition is, accordingly, partly allowed. A writ of mandamus is issued to the Respondents not to prosecute the Petitioners u/s 3/7, E. C. Act in connection with the F.I.R. lodged on 4.1.97 on the basis of which Case Crime No. 2 of 1997 has been registered at P.S. Gabhana, District Aligarh, if the Mills have not acquired any further stock after the enforcement of U. P. Foodgrains (Procurement and Regulation of Trade) (Fifteenth Amendment). Order, 1996 which came into force on 10.12.96.