Full Judgment Text
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CASE NO.:
Appeal (civil) 3959-3960 of 2001
PETITIONER:
SAGUURJAASRHATTRA OIL MILLS ASSOCIATION,
Vs.
RESPONDENT:
STATE OF GUJARAT & ANOTHER
DATE OF JUDGMENT: 19/02/2002
BENCH:
V.N. Khare & Ashok Bhan
JUDGMENT:
BHAN,J.
1. The appellants herein filed a writ petition in the High Court of
Gujarat challenging the constitutional validity of an order made on
26th July, 2000 in pursuance of sub-clause (1) of clause 24 of the
Gujarat Essential Articles (Licensing, Control Stock Declaration)
Order, 1981 (for short ’the State Order of 1981’) amending an earlier
order dated 14th August, 1998 by substituting the storage limits in
respect of dealers and thereby providing that no dealer shall either by
himself or by any person on his behalf store or have in his possession
at any time any edible Oilseeds or edible oils in excess of the
quantities specified thereunder, which were 1000 quintals for
wholesaler of edible Oilseeds including groundnut in shell, and 100
quintals for retailer (all edible Oilseeds taken together); and 300
quintals for the wholesaler of edible Oilseeds including groundnut in
shell, and 100 quintals for retailer (all edible Oilseeds taken together);
and 300 quintals for the wholesaler and 20 quintals for the retailers
(all edible oils including hydrogenated vegetable oils). The order
dated 14th August, 1998 in which the amendment was made by the
impugned order of 26th July, 2000 provided the stock limits for the
aforesaid items which were 2000 quintals for edible Oilseeds
including groundnut in shell for the wholesaler and 100 quintals for
the retailer. It provided the stock limits of 600 quintals in respect of
edible oils for the wholesaler and 20 quintals for the retailer.
2. Before adverting to the grounds of challenge, it is necessary to
trace the history of various orders issued by the Central Government
and the State of Gujarat under Section 3 of the Essential Commodities
Act, 1955 (hereinafter referred to as ’the Act’).
3. By virtue of its powers under Section 3 of the Act the Central
Government issued the Pulses, Edible Oils (Storage Control) Order,
1977, which contained provisions regarding licence to be obtained by
the dealers and the stock limits that will have to be observed by them.
The Government of the State of Gujarat issued "Gujarat Pulses and
Edible Oils Dealers Licensing Order, 1977" in exercise of its
delegated powers and with express reference to the control order
already issued by the Central Government in the year 1977. The
Central Government repealed the Pulses and Edible Oils (Storage
Control) Order of 1977 and issued another Order known as Pulses,
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Edible Oilseeds and Edible Oils (Storage Control) Order, 1977 which
contained the provisions relating to the licensing of dealers and stock
limits. The only difference between this order and the earlier order of
1977 is that this Order included Edible Oilseeds also within its
purview.
4. The Central Government issued GSR 800 dated 9.6.1978
whereby it delegated its power under section 3 of the Act to the State
Governments in exercise of its powers under section 5 of the said Act,
which reads as under:
"GOVERNMENT OF INDIA
MINISTRY OF AGRICULTURE AND
IRRIGATION
(DEPARTMENT OF FOOD)
ORDER
New Delhi, the 9th June, 1978
G.S.R. 800 In exercise of the powers conferred
by Section 5 of the Essential Commodities Act,
1955 (10 of 1955) and in supersession of the Order
of the Government of India in the late Ministry of
Agriculture (Department of Food) No. G.S.R. 316
(B), dated the 20th June, 1972, the Central
Government hereby directs that the powers
conferred on it by sub-Section (1) of Section 3 of
the said Act to make orders to provide for the
matters specified in clauses (a),
(b),(c),(d),(e),(f),(h),(i), (ii) and (j) and sub-section
(2) thereof shall, in relation to foodstuffs be
exercisable also by a State Government subject to
the Conditions:-
(1) that such powers shall be exercised by a
State Government subject to such directions,
if any, as may be issued by the Central
Government in this behalf;
(2) that before making an order relating to any
matter specified in the said clauses (a),(c) or
(f) or in regard to distribution or disposal of
foodstuffs to places outside the State or in
regard to regulation of transport of any
foodstuff under the said clause (d), the State
Government shall also obtain the prior
concurrence of the Central Government and
(3) that in making an order relating to any of the
matters specified in the said clause (j) the
State Government shall authorise only an
officer of the Government.
No.3(Genl)(I)/78-D&R(I)-59
(Signed) K. Balkrishnan
Deputy Secretary to the Government
of India"
5. The "Pulses, Edible Oilseeds and Edible Oils (Storage Control)
Order of 1977" issued by the Central Government and the "Gujarat
Pulses and Edible Oils Dealers Licensing Order of 1977", which was
issued with specific reference to the Central Control Order, were in
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operation from 1977 to 1981 governing the licensing of the dealers in
Edible Oils and Edible Oilseeds and prescribing the storage controls.
6. In the year 1981, the State Government of Gujarat passed State
Order of 1981 wherein clause 3 required a licence to be taken for
dealing in edible Oilseeds and edible oils. Clause 24 of this order
provided for imposition of limits on stocks for Pulses, Edible Oilseeds
and Edible Oils. This Control Order was issued by repealing the
various existing Control Orders covering various essential
commodities including the Gujarat Pulses and Edible Oil Dealers
Licensing Order of 1977. The State Order was issued with the prior
concurrence of the Central Government.
7. The Central Government after reviewing the situation
prevailing in the entire country with regard to the availability of the
edible Oilseeds and edible oils decided to remove these commodities
from the requirements of licensing and storage controls. On 10th
November, 1997 the Central Government decided to amend its
"Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order of
1977" and accordingly deleted the items ’Edible Oilseeds and Edible
Oils’ in exercise of its powers under section 3 of the Act. A letter was
addressed on 13th November, 1997 by the Directorate of Vanaspati,
Vegetable Oils & Fats to the Secretaries, Food & Civil Supplies
Department of all the States for compliance with the central
amendment order dated 10.11.1977.
8. The point raised in the writ petition was whether the
Government of Gujarat was justified in issuance of a notification
under clause 24 of the State Order of 1981 requiring compliance
regarding stock limits from the dealers of Edible Oil and Edible
Oilseeds despite the fact that the Central Government by its order
dated 10.11.1997 had directed omission of edible Oilseeds and edible
oils from the purview of the Pulses and Edible Oils (Storage Control)
Order of 1977.
9. Invoking the provisions of Articles 14, 19(1)(g), 226, 251, 254
and 256 of the Constitution of India, the appellants challenged the
"inaction" on the part of the State Government in not deleting "Edible
Oilseeds and Edible Oils" from the list of essential articles in the State
Order of 1981 and sought for a declaration that the State Order of
1981 shall not apply to Edible Oilseeds and Edible Oils. That the
directions issued in the impugned order dated 26.7.2000 were illegal
and void. According to the appellants, the effect of the deleting of the
words "Edible Oilseeds and Edible Oils" by the Central Government
from the preamble and various clauses of the Central Order of 1977,
required the State Government to delete these words from the State
Order of 1981. The "inaction" on their part in not deleting the words
Edible Oilseeds and Edible Oils from the State Order of 1981 was not
permissible. It was contended that whenever there was a conflict
between the Central and the State Acts, Rules or Notifications issued
thereunder, the conflicting rules, policies, orders or notifications
would be illegal and void ab-initio to the extent of inconsistency with
the Central Act. According to the appellants, the effect of the
amendment in the Central Order of 1977 was that no licence was
necessary for "Edible Oilseeds and Edible Oils" as earlier required by
clause 3 of the Central Order which was now confined only to the
pulses. That whenever Central Control Order is amended, such
amendment is deemed to be applicable to the Control Order of the
State Government, and that the directions issued by the Central
Government are binding upon all the State Governments. Any
direction issued by the State Government in disregard of the directions
of the Central Government would frustrate the very purpose of the
amendment in the Central Order of 1977. Referring to the provisions
of Articles 251, 255 and 256, it was contended that the executive
power of the State is to be exercised so as to ensure compliance with
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the laws and directions of the Union of India and therefore the
impugned order was required to be quashed and set aside being void
ab-initio and in violation of the constitutional provisions. It was
stated that since Central Government had now permitted import of all
types of edible oils such as cotton seed oil, sunflower oil, palmoline,
soyabean oil etc. by lifting all the restrictions on their import and as a
result thereof it appears that the Central Government had thought it fit
to delete "Edible Oilseeds and Edible Oils" from the Central Order of
1977, with a view to ensure smooth business operation without
harassment to the dealers, traders and producers from the Government
Officers.
10. The State of Gujarat in its affidavit in reply filed in the writ
petition contested the petition by contending that there was no conflict
between the Central and the State Orders, because the State
Government had passed the orders in exercise of its power under
section 3 read with Section 5 of the said Act read with the Orders of
the Government of India made on 3.11.1974 and 9.6.1978 under
Section 5. According to the State Government, it was empowered to
pass the impugned order under clause 24(1) of the State Order of 1981
and that these measures were required to be taken for controlling the
regular supply and prices of the essential commodities. It was
pointed out that the State Order of 1981 was issued after prior
concurrence of the Central Government with a view to maintain
supplies of essential commodities and securing their equitable
distribution and availability at fair prices.
11. Union of India in its reply supported the action of the State
Government in entirety. It stated that considering the fact that the
State Governments would be the proper authorities to assess the
situation prevailing in their respective states in respect of certain
essential commodities including "Edible Oilseeds and Edible Oils" the
Central Government had notified several orders under section 5 of the
said Act delegating powers conferred by section 3(1) of the said Act
to the State Governments. Such orders were notified in the years
1972, 1974 and 1978. The State Governments were duly empowered
to take appropriate measures to achieve the purposes mentioned in
Section 3 of the said Act subject to the condition specified therein. It
was stated that, in the earlier orders of 1972 and 1974 there was a
condition to the effect that no Order should be issued in pursuance of
the powers delegated if it was inconsistent with any of the Orders
issued by the Central Government under the Act. However, this
condition was deleted in the Order of 1978, while retaining the
condition of prior concurrence of the Central Government before
issuing an Order, as stated therein. That the Minister for Food, Civil
Supplies and Consumer Affairs of the State of Gujarat by his letter
dated 19th June, 1998 brought to the notice of the Minister for Food
and Consumer Affairs Department of Sugar and Edible Oil,
Government of India, the unabated rise in prices of edible oil and in
light thereof, he expressed his view that it was absolutely imperative
that the State Government must have the power to enforce strict
control over the unscrupulous oil traders and millers. It was stated
that after the amendment in the Central Stock Control Order of 1977
the oil traders and millers had a free hand, resulting in unprecedented
price rise. The Government of India was therefore requested to
reintroduce stock control at the earliest. In response to that letter, the
Minister for Food and Consumer Affairs, Government of India, sent a
reply on 27th July, 1998 drawing the attention of the State Minister to
the Central Government’s Order dated 9.6.1978 whereby the powers
under sub-section (1) of Section 3 of the said Act were already
delegated to the State Government under Section 5. The State
Government was advised that, if it found appropriate, it could regulate
the storage, distribution etc. of "Edible Oilseeds and Edible Oils".
12. The Single Judge allowed the writ petition holding that the
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provisions of the State Order of 1981 could not operate because the
powers delegated earlier stood withdrawn in view of the amendment
by the Central Government in its own Central Order of 1977.
13 Aggrieved against the order of the Single Judge the State of
Gujarat filed the letters patent appeals, which were accepted by the
Division Bench. Aggrieved by the order passed by the Division
Bench the present appeals have been filed.
14. Relying upon a judgment of the High Court of Andhra Pradesh
in Writ Appeal Nos. 1546 to 1549 of 1998 decided on 30th June 1999
(copy of which has been placed on the record) wherein a similar
action of the Government of Andhra Pradesh relating to the similar
provision was struck down and against which Special leave Petition
(C) No.CC 3461-3464 of 2000 was dismissed by this Court,
counsel appearing for the appellants contended that to maintain
consistency in the orders passed by this Court these appeals should be
accepted and the impugned judgment of the Gujarat High Court be set
aside otherwise different laws declared by different High Courts in
different States would prevail leading to uncertainty and confusion.
The submission is misconceived. Repeatedly, it has been held that
dismissal of special leave petition without a speaking order would
only mean that the Court was not inclined to exercise its discretion in
granting leave to file the appeal. It does not attract the doctrine of
merger and the view expressed in the impugned order does not
become the view of this Court. The dismissal of the special leave
petition by a non-speaking order would remain a dismissal simplicitor
in which permission to file the appeal to this Court is not granted.
This may be because of various reasons. It would not mean to be the
declaration of law by this Court. In a recent judgment of three-
member Bench in Kunhayammed & Ors. Vs. State of Kerala & Anr.,
2000 (6) SCC 359, after exhaustive consideration of the entire case
law this Court has reaffirmed this position. Summing up the
conclusion in Clause (iv) of para 44, it was held:
"(iv) An order refusing special leave to appeal may
be a non-speaking order or a speaking one. In
either case it does not attract the doctrine of
merger. An order refusing special leave to appeal
does not stand substituted in place of the order
under challenge. All that it means is that the Court
was not inclined to exercise its discretion so as to
allow the appeal being filed."
Thus, the dismissal of the special leave petition in limine against the
judgment of the High Court of Andhra Pradesh would not operate as a
binding precedent taking away the jurisdiction of a co-equal Bench to
adjudicate on the same point on merits in a case where the leave to file
the appeal has been granted. Submission that different laws would be
prevalent in different States because of the different views expressed
by different High Courts thus creating uncertainty and confusion
cannot be accepted as the law declared by this Court would be the law
prevalent in the country.
15. It was then contended on behalf of the appellants that the State
order of 1981 to the extent that it retains the essential commodities
"Edible Oilseeds and Edible Oils" is repugnant to the Central Order of
1977 from which these items were removed. Analogy was drawn
from the legislative repugnancy between the laws of the Parliament
and the State Legislature on the same subject contained in the
Concurrent List and it was contended that in case of repugnancy the
Central Law will prevail and the State must obey the executive
directions of the Central Government in view of the constitutional
scheme. It was argued that the State order of 1981 to the extent that it
retains these food items which stood repealed by the Central Law after
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these were deleted from it creates conflict between the Central Order
and the State Order. The contention was that the State was duty
bound to obey the directions issued by the Union of India and delete
"Edible Oilseeds and Edible Oils" from the State Order of 1981.
16. The State Order of 1981 was issued by the State Government
with the prior concurrence of the Central Government under Section 3
read with Section 5 of the Essential Commodities Act. It provided for
the licensing, control and stock declaration of certain essential
commodities including "Edible Oilseeds and Edible Oils". It was
issued as the State Government was of the opinion that the same was
necessary and expedient for maintaining supplies of certain essential
commodities and for securing their equitable distribution and
availability at fair prices. Clause 3 (1) of the State Order of 1981
provided that no person shall carry on business as a dealer in certain
essential commodities including "Edible Oilseeds and Edible Oils" if
the stock of such essential articles in his possession at any time
exceeded the quantities specified in the table given below Clause 3.
Clause 24 of this order provided:
"p2r4o.duPcoewre:r- to issue directions to dealer or
(1) The State Government, the Director of Civil
Supplies, the Director of Food, the Collector
of a district or any licensing authority may
in accordance with the provisions of this
order and for ensuring fair and equitable
distribution of essential article by general or
special order, issue to any dealer or producer
or class of dealers or producers such
directions regarding maintenance of
accounts, maintenance of stocks, storage,
sale submission of returns furnishing
information, display of prices, issuance of
invoice or cash memo, weighment, disposal,
delivery or distribution of any essential
article as it or he may deem fit.
(2) Every dealer or producer to whom any
direction is issued under sub-clause (1) shall
comply with such direction."
17. The Central order of 1977, which extended to whole of India,
was issued for maintaining supplies and for securing equitable
distribution and availability at fair prices of pulses, edible oilseeds and
edible oils. The Clause 3 of the Central order of 1977 required a
person to obtain licence under the State Order for doing business as a
dealer in these items if the stocks of pulses or edible oilseeds or edible
oils in his possession exceeding the tabulated quantities.
18. Thus both the Central Government and the State Government
had issued orders in respect of "Edible Oilseeds and Edible Oils". By
virtue of delegation, both the Central Government and the State
Government had powers to make orders under Section 3 (1) of the
Act. The State had issued the orders by virtue of delegation of powers
under Section 5 by the Central Government to the State Government.
This apart, the State Legislature had the power to make laws
concurrently with the Parliament, under Entry 33 of the Concurrent
List in respect of foodstuffs, Edible Oilseeds and Edible Oils. The
State Government, therefore, also had the executive power co-
extensive with its legislative power in respect of these items.
19. The Constitution Bench of this Court in Ch. Tika Ramji & Ors.
etc. Vs. The State of Uttar Pradesh & Ors., 1956 SCR 393, held that
the provincial legislatures as well as central legislature would be
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competent to enact laws on the same subject mentioned in the
concurrent list and the exercise of concurrent jurisdiction by the
central legislature, [Parliament] would not deprive State legislature of
similar powers. Both would be competent to enact such pieces of
legislation and no question of legislative competence would arise.
The test of repugnancy would be whether the Parliament and the State
Legislature, in legislating under an Entry in the Concurrent List,
exercise their powers over the same subject matter or whether the
laws enacted by Parliament were intended to be exhaustive so as to
cover the entire field. The question of repugnancy under Article 254
of the Constitution would not arise where Parliamentary Legislation
and State Legislation occupied different fields and dealt with separate
and distinct matters even though of a cognate and allied character.
After laying down the above principle it was held that none of the
provisions of the U.P. Sugarcane (Regulation of Supply and Purchase)
Act, 1953 or the Orders issued under the Essential Commodities Act,
overlapped, the Centre Act/Order, being silent with regard to some of
the provisions which were enacted by the State and the State being
silent with regard to some of the provisions which were enacted by the
Centre. It was held that there being no repugnancy at all, the U.P.
Sugarcane (Regulation, Supply and Purchase) Order, 1954 could not
be validly repealed by the Central Act, as was purported to be done by
Clause 7 of the Sugarcane Control Order, 1955.
20. Notification issued by Central Government dated 9th June, 1978
delegated powers to the State Government under Section 5 of the said
Act (the contents of which have been reproduced in para 4 above).
The exercise of powers to issue orders was made subject to directions
that may be issued by the Central Government. A perusal of the
notification shows that prior concurrence of the Central Government
was required only before making an order relating to any matters
specified in clause (a), (c) or (f) or in regard to distribution or disposal
of foodstuffs to places outside the State or in regard to regulation of
transport of any foodstuff under clause (d). There was no requirement
of prior concurrence imposed in respect of orders on matters which
relate to intrastate. The State Order of 1981 was enacted with the
prior concurrence of the Central Government. Clause 24 of the State
Order conferring powers on the State Government to issue directions
would therefore be deemed to have been issued after obtaining prior
concurrence. Directions, which were issued under Clause 24 of the
State Order of 1981 did not require any concurrence under the
conditions imposed in the Notification dated 9th June, 1978 delegating
powers to the State Government under Section 5 of the Act. There
was no direction of the Central Government to the effect that the State
Government should not impose any stock limit under Clause 24 of the
State Order. In fact, the Central Government had concurred with the
State Government in issuance of the directions under the Order dated
14th August, 1998 made under Clause 24 of the State Order of 1981.
Even before the Court the Central Government had filed an affidavit
showing that it was agreeable to the issuance of such directions by the
State Government and the Order dated 14th August, 1998 was
justified.
21. By an Order dated 10th November, 1997 issued under Section 3
of the Act the Central Government amended its Storage Control
Order, 1977 by deleting the words "Edible Oilseeds and Edible Oils"
from its preamble, title and from all other clauses so as to confine the
Order to pulses only. Therefore, on and from 10th November, 1997
there remained no Central Order under Section 3 in respect of "Edible
Oilseeds and Edible Oils". The State Order of 1981 which also
contained stock limit provisions for licensing purposes similar to
those tabulated in the Central order, 1977 however continued to
operate. The point is whether the omission of the "Edible Oilseeds and
Edible Oils" from the Central Order would impliedly repeal the
provisions relating to "Edible Oilseeds and Edible Oils" from the
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State Order or would it cause any repugnancy between the two orders.
The question of repugnancy would not arise when the field is not
governed by both the Central and the State Orders in respect of the
same subject matter. There was no conflict between the provisions of
the Central Government Order of 1977 relating to "Edible Oilseeds
and Edible Oils" and those covering the same field in the State Order
of 1981. In any case question of conflict or repugnancy would not
arise after these items were removed from the Central Order. The
question of conflict or repugnancy would not arise as the Central
Order of 1977 ceased to govern the field as regards the "Edible
Oilseeds and Edible Oils". Only the provisions of the State Order of
1981 remained in the field. The Order dated 10th November, 1997 did
not purport to amend the State Order of 1981. The question of
implied repeal of the provisions of the State Order of 1981 relating to
"Edible Oilseeds and Edible Oils" would not arise. The omission of
"Edible Oilseeds and Edible Oils" from the Central Government order
of 1977 would have no effect on the efficacy of the State Order of
1981 which continued to operate having been framed by the State
Government under Section 3 (1) read with Section 5 of the Essential
Commodities Act.
22. Referring to the letter dated 13th November, 1977 issued by the
Central Government through Ministry of Food and Consumer Affairs,
Department of Sugar and Edible Oil Seeds and Edible Oils Directorate
of Vanaspat Vegetable Oils and Fats addressed to the Secretary, Food
and Civil Supplies Department of all the States and Union Territories
to comply with the directions omitting the words "Edible Oilseeds and
Edible Oils" from the Central Order of 1977, it was contended by Shri
M.L. Verma, senior counsel appearing for the appellants that it was
the duty of the State Government to carry out the directions issued by
the Central Government and delete the words "Edible Oilseeds and
Edible Oils" from the State Order of 1981. We do not find any
substance in this submission as well. By this letter the State
Governments and the Union Territories were told that since from the
Clauses of Central Order the words "Edible Oilseeds and Edible Oils"
had been deleted, the State Governments and the Union Territories
should ensure compliance with the amendment in so far as the Central
Order of 1997 was concerned in relation to "Edible Oilseeds and
Edible Oils". No direction had been issued to the State Government
to delete the words "Edible Oilseeds and Edible Oils" from the State
Order of 1981 which was in operation. The compliance of the circular
letter dated 13th November, 1997 would in the context mean that the
State should take into account the deletion made in various clauses of
the Central Order of 1977 so that it may not insist upon the
compliance of the Central order as it stood prior to its amendment
which imposed a duty on the dealers to give intimation regarding
stocks of the "Edible Oilseeds and Edible Oils" to the Collector
(Clause 4 (2) of the Central Order) in respect of the stocks held by
him. The letter dated 13trh November, 1997 cannot be construed to
be a direction to the State Government to amend the State Order, as
the State Order of 1981 did not derive its life from the Central Order
of 1977. The State Order of 1981 had been issued by the State
Government under Section 3 (1) read with Section 5 of the Essential
Commodities Act coupled with the delegation of powers to the State
to issue such orders and the same continued to operate in the absence
of any direction to delete these items from the State Order by
withdrawal or by delegation.
23. That the Central Government concurred with the State
Government to issue directions for putting the stock limit of Edible
Oilseeds and Edible Oils can be gathered from the communications
exchanged between State Minister for Food, Civil Supplies and
Consumer Affairs of the State of Gujarat and the Minister for Food
and Consumer Affairs Department of Sugar and Edible Oil,
Government of India. The State Minister in his letter dated 19th June,
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1998 had brought to the notice to the Central Minister that in view of
the unabated rise in prices of edible oils it was necessary that the State
Government must have the powers to enforce strict control over the
unscrupulous oil traders and millers. It was stated that after the
amendment in the Central Stock Control Order of 1977 the oil traders
and millers had a free hand resulting in unprecedented price rise. The
Government of India was, therefore, requested to reintroduce stock
control at the earliest. In response to that letter, the Central Minister
sent a reply on 26th July, 1998 drawing the attention of the State
Minister to the Central Government’s Order dated 9.6.1978 whereby
the powers under sub-section (1) of Section 3 of the said Act were
already delegated to the State Government under Section 5. The State
Government was advised that, if it found appropriate, it could regulate
the storage, distribution etc. of "Edible Oilseeds and Edible Oils". It
was stated that the State Government would be the appropriate
authority to take decision regarding the permissible stock limits and
the turnover period within the area of its jurisdiction. Only thereafter
the State Government issued the letter dated 14th August, 1998 in
exercise of its power under Clause 24 (1) of the State Order of 1981
which was later on amended by the impugned order dated 26th July,
2000.
24. Although, we are of the opinion that no prior concurrence was
required before issuing the order dated 14th August, 1998 and
followed by the Order dated 26th July, 2000 fixing the stock limits of
"Edible Oilseeds and Edible Oils" but even if there was required to be
prior concurrence there could never be a clearer concurrence to the
State Government’s request for applying the State Order of 1981
which was issued by the State with prior concurrence after the
delegation of the powers to it under the notified order dated 9th June,
1978. The concurrence of the Central Government on issuance of the
orders dated 14th August, 1998 and 26th July, 2000 though not strictly
required was writ large in the communications of the concerned Union
Minister and the Secretary of the concerned Department of the Central
Government. The Central Government in its affidavit filed in these
proceedings stood by the State Government in respect of issuance of
the directions under clause 24 (1) of the State Order of 1981
specifying the stock limits.
25. The State Order of 1981 already contained a stock limit in the
tabulated form in Clause 3 thereof in the context of obtaining a
licence. Under Clause 24 (1) of the State Order of 1981 the State
Government could issue directions to dealers or purchasers, inter alia,
regarding maintenance of stock, storage, display of prices etc. and
every dealer or producer to whom such direction was issued, was
required to comply with the same. By orders dated 14th August, 1998
and 26th July, 2000 the State Government only modified the stock
limits.
26. Reliance placed by the counsel for the appellants on District
Collector, Chittoor & Ors. Vs. Chittoor District Groundnut Traders
Ass. Chittor and Ors., 1989 (2) SCC 58, in support of his case is
misplaced. In the said case this Court was concerned with the
provisions of the Andhra Pradesh Scheduled Commodities Dealers
(Licencing and Distribution) Order, 1982 and the question regarding
the validity of imposition of restriction on export of groundnut seed
and oil to outside the State and directions for compulsory levy at
specified price. In paragraph 6 it was noted that:
"The 1982 Order which was framed by
the State Government in exercise of the delegated
powers does not contain any provision placing any
restriction on the transport or movement of the
edible oil or oil seeds nor it provides for
imposition of compulsory levy, further it does not
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fix any price. The directions issued by the
government placing restriction on the movement of
oil seeds and oil and imposing compulsory levy
and requiring millers and traders to sell oil seeds
and oil at a price fixed by it, are outside the
purview of the 1982 Order. Those directions have
no sanction of law."
27. On this finding it was held that the directions issued by the
Government placing restrictions on the movements of oilseeds and oil
and imposing compulsory levy and requiring millers and traders to
sell oil seeds and oil at a price fixed by it were outside the purview of
the 1982 order. The directions issued did not have the sanction of
law. It was observed that if the State Government was facing any
problem, it could have made amendments in the 1982 Order
regulating matter specified in Clauses (d) and (f) of Section 3 (2) of
the Act after obtaining the prior concurrence of the Central
Government. As no such course was followed it was held that the
directions contained in the Government Order were illegal and void as
they were in contravention of the powers delegated to the State
Government under notification dated 9.6.1998. The Order issued by
the State Government was held to be outside the purview of 1982
Order and thus struck down.
28. Facts situation in the present case is totally different. As has
been discussed in the foregoing paragraphs the State Order of 1981
had been issued after the delegation of the power to the State
Governments by the Central Government and with prior concurrence
of the Central Government. Stock limits were provided in the
tabulated form in Clause 3 and further State Government or its
officers were authorised under Clause 24 (1) of the State Order of
1981 to issue directions regarding maintenance of stock, storage,
display of prices etc.. Thus the State Government had the legislative
sanction to promulgate the State Order of 1981 as well as the authority
to issue directions to the dealers regarding maintenance of stock,
storage, display or prices etc. under the provisions of the State Order.
The impugned order of 26th July, 2000 had been issued in exercise of
the jurisdiction conferred under the State Order of 1981 and therefore
valid.
For the reasons stated above we do not find any merit in these
appeals. Accordingly, the appeals are dismissed with no order as to
costs.
J.
( V. N. Khare )
.J.
( Ashok Bhan)
February 19, 2002