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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No 330 of 2001
in
SPECIAL CIVIL APPLICATIONNo 9764 of 2000
WITH
LETTERS PATENT APPEAL NO. 331 OF 2001
IN
SPECIAL CIVIL APPLICATION NO. 9446 OF 2000
For Approval and Signature:
Hon'ble MR.JUSTICE R.K.ABICHANDANI
and
Hon'ble MR.JUSTICE M.C.PATEL
============================================================
1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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STATE OF GUJARAT
Versus
SAURASHTRA OIL MILLS ASSO.
--------------------------------------------------------------
Appearance:
LETTERS PATENT APPEAL NO. 330 OF 2001
AND LETTERS PATENT APPEAL NO. 331 of 2001
MR. SN SHELAT, Advocate General with
MR. AD OZA, Government Pleader with
MR. UA TRIVEDI, AGP for Appellant
MR. V. SRINIVASAN for MR HARDIK RAVAL for
Respondent No.1
MR AKSHAY MEHTA, Sr. Central Govt. Standing
Counsel for Union of India
--------------------------------------------------------------
CORAM : MR.JUSTICE R.K.ABICHANDANI
and
MR.JUSTICE M.C.PATEL
Date of decision: 19/04/2001
ORAL JUDGEMENT
(Per : MR.JUSTICE R.K.ABICHANDANI)
1. These two appeals are directed against the common
judgement and order dated 11th April 2001 passed by the
learned Single Judge in Special Civil Applications Nos.
9446 of 2000 (Letters Patent Appeal No. 331 of 2001) and
9764 of 2000 (Letters Patent Appeal No. 330 of 2001), by
which these two Special Civil Applications were allowed
by setting aside the impugned Order dated 26th July 2000
at Annexure `A' to the petitions, prescribing stock limit
of edible oilseeds and edible oils under clause 24(1) of
the Gujarat Essential Articles (Licencing, Control &
Stock Declaration) Order, 1981 (hereinafter referred to
as `the State Order of 1981'), and by ordering that the
words `edible oilseeds and edible oils' wherever
occurring in the State Order of 1981 stand deleted
hereafter.
1.2 Both these appeals have been fully and finally
heard at the request of learned counsel appearing for
both the sides.
2. In Special Civil Application No. 9764 of 2000,
the petitioner (Shri Saurashtra Oil Mills Association)
had challenged the order made by the respondent No.1
State on 26-7-2000 at Annexure `A' to the petition, by
which in pursuance of sub-clause (1) of clause 24 of the
State Order of 1981, the Government of Gujarat amended
the 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 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 was made under
clause 24(1) of the State Order of 1981 providing 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.
2.1 Invoking the provisions of Articles 14, 19(1)(g),
226, 251, 254 and 256 of the Constitution of India, the
petitioner 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. According to the petitioner, the
directions issued in the impugned Order dated 26-7-2000
were illegal and void. An amendment was effected on
10-11-1997 in the Pulses, Edible Oilseeds and Edible Oils
(Storage Control) Order, 1977 (hereinafter referred to as
`the Central Order of 1977') by virtue of which, from the
clauses including clause 3 for licencing of dealers,
`edible oilseeds and edible oils' were deleted. The
Central Order of 1977 was issued by the Central
Government under section 3 of the Essential Commodities
Act, 1955 (hereinafter referred to as `the said Act'),
and Clause 3 thereof related to licencing of dealers (and
not licencing of dealers and producers as mentioned in
paragraph 2 of the petition). According to the
petitioner, a communication was sent on 13-11-1997 from
the Central Government to the Secretaries of all States
requiring them to comply with the Amendment Order dated
10-11-1997 deleting certain clauses of the Central Order
of 1977 so far as they related to `edible oilseeds and
edible oils'. The Amendment Order dated 10th November
1997 was issued by the Central Government under section 3
of the said Act for amending the Central Order of 1977 by
deleting the words `edible oilseeds and edible oils' from
the preamble and various clauses of the Central Order of
1977, the effect of which was that the Central Order no
longer applied to `edible oilseeds and edible oils' after
the omission of these words. The petitioner also
referred to a letter written by the Joint Secretary to
the Government of India on 23-12-1997 as per annexure `B'
to the petition, stating that the State Governments /
Union Territories had been requested to ensure compliance
with the amendment to the Central Order of 1977. [That
letter at Annexure `B' dated 23rd December 1997 appears
to have been written by the Joint Secretary to one Mr.
Shyam Bihari Mishra, Ex-M.P. in response to his letter
dated 10-12-1997 and does not appear to be any circular
to the State Governments, as has been assumed in his
judgement by the learned Single Judge.] The petitioner
has further stated that, on 21st August 2000, the Central
Organization for Oil Industry & Trade had written a
letter to the petitioner that action of not deleting
`edible oilseeds and edible oils' from the A.P. Schedule
Commodities Dealers (Licencing & Distributing) Order,
1982 was challenged by the A.P. Oil Millers Association
Ltd. before the Andhra Pradesh High Court in Writ
Petitions Nos. 3816 and 7753 of 1998, which were allowed
on 8-1-1998, and that the judgement of the learned Single
Judge was confirmed by a Division Bench in Writ Petitions
Nos. 1546 and 1549 of 1998, which were dismissed.
Thereupon, the Government of Andhra Pradesh had issued a
circular dated 7-8-2000 stating that there was no need
for the dealers and traders to obtain any licence for
doing business in `edible oilseeds and edible oils' under
the Andhra Order of 1982. It is contended in paragraph 5
of the petition that whenever there is a conflict between
the Central Act and the local Orders, 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 petitioner, 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 pulses. It is
stated 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, 254 and 256 in detail, in
paragraph 13 of the petition, it has been contended that
the executive power of the State is to be exercised so as
to ensure compliance with the laws and directions of the
Union of India and therefore, the impugned order at
Annexure `A' is required to be quashed and set aside
being void ab-initio and in violation of these
constitutional provisions. It is stated that the Central
Government has 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 has 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 the harassment to the dealers / traders
/ producers from the Government officers.
2.2 The respondents in their affidavits-in-reply
filed in the petition have contested the petition by
contending that there is no conflict between the Central
Act and the local Orders, because, the State Government
had passed the Orders in exercise of its powers 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 is 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.
2.3 In the affidavit in reply filed on behalf of the
original respondent No.2 - Union of India, it was 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 Government. Such orders were notified in the years
1972, 1974 and 1978. By virtue of these orders, the
respective State Governments were duly empowered to take
appropriate measures to achieve the purposes mentioned in
section 3 of the said Act, subject to the conditions
specified therein. It is 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. It is pointed out that considering the local
situation in respect of prices in respect of edible oils,
especially groundnut oil in Gujarat, the then Minister
for Food, Civil Supplies and Consumer Affairs of the
State of Gujarat, by his letter dated June 19, 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
brought to the notice of the Union Minister that ever
since the amendment in the Central Stock Control Order of
1977, the oil traders and millers had absolutely 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'.
It was mentioned that the State Government would be the
appropriate authority to take decision regarding
permissible stock limits and the turnover period within
the area of its jurisdiction. Thereafter, the State
Government issued Order dated 14th August 1998 in
pursuance of clause 24(1) of the State Order of 1981. It
is stated that the Union of India has been aware of and
vigilant about the situation prevailing in the State of
Gujarat in respect of essential commodities and the Union
Minister had addressed the letter to the Chief Minister
on 16th July 1998 and the concerned Secretary of the
Union Ministry had also written a letter to the Chief
Secretary of the State on 24th July 1998, by which the
State was advised to take appropriate measures by issuing
orders pursuant to the delegation of powers under section
5 of the said Act. It was stated in paragraph 8 of the
affidavit in reply that the State Government was duly
empowered to issue orders in respect of `edible oilseeds
and edible oils' irrespective of the fact that the
Central Government had deleted the words `edible oilseeds
and edible oils' from the Central Order of 1977.
3. In Special Civil Application No. 9446 of 2000
(filed by the petitioner - Rajmoti Industries), the
impugned Order passed by the State Government on
26-7-2000 at Annexure `A' to that petition has been
challenged on the same grounds as are narrated above, and
a declaration is also sought that the words `edible
oilseeds and edible oils' wherever occurring in the State
Order of 1981 stand deleted forthwith. Even the
respondents have taken up identical contentions in the
affidavits in reply filed by them in that petition and
these have already been referred to hereinabove.
4. The learned Single Judge held that there was no
substance in the contention raised on behalf of the State
Government that the impugned orders could be made by the
State Government under the State Order of 1981, because,
the State Government is not empowered to pass any orders
inconsistent with the orders passed by the Central
Government, and that the powers delegated to the State
Government were subject to further directions of the
Central Government. It was held that, by the government
letters dated 13th November 1997 and 23rd December 1997,
all the State Governments were required to make amendment
in the existing State Government Orders to delete the
words `edible oilseeds and edible oils' by making law to
give effect to the directions of the Central Government,
and that the State Government was not entitled to act as
a delegate when the delegated powers in respect of
`edible oilseeds and edible oils' had already been taken
away by the Central Government vide its Amendment Order
of 1997. It was also held that the impugned Order of the
State Government was contrary to the order of the Central
Government. Relying upon the decision of the Supreme
Court in the case of District Collector, Chittoor v.
Chittoor District Groundnut Traders' Association,
reported in 1989 (2) SCC 58, the learned Single Judge
held that the impugned Order passed by the State
Government was made without any prior concurrence of the
Central Government, and was therefore illegal and not
sustainable in the eye of law. The learned Single Judge
reproduced the contents of the correspondence between the
State Minister and the Union Minister and the Government
officials and came to the conclusion in paragraph 23 of
the judgement that the extracts of the letters which were
examined showed that the letters dated 27-7-1998 and
24-4-1998 of the Union Minister and the Secretary of the
Central Government contained their personal opinion that
the State Government had power under the delegation made
under section 5 of the said Act to issue the orders in
respect of `edible oilseeds and edible oils'. It was
held that it was wrongly assumed that the delegated
powers had not been taken back by the Central Government
and that the State Order of 1981 was therefore still in
operation in respect of `edible oilseeds and edible
oils'. According to the learned Single Judge, the
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. The contents of the so called
circular dated 23-12-1997, which, as pointed by us
hereinabove, was only a letter written by the Joint
Secretary of the Central Government to one Ex-M.P. Mr.
Mishra are reproduced and relied upon by the learned
Single Judge as if it was a Circular issued to all the
State Governments. The other circular - letter dated
13-11-1997 which is reproduced in the judgement, is a
letter which was written by the Chief Director, Ministry
of Food and Consumer Affairs to the Secretary, Food and
Civil Supplies Department of all States as well as Union
Territories. It was under this letter that the Amendment
Order dated 10-11-1997 was forwarded to all State
Governments and Union Territories for information and
compliance. This letter has been construed by the
learned Single Judge as issuance of a mandate to the
State Governments to amend their State Orders, by making
similar deletion in respect of `edible oilseeds and
edible oils' from them. The word compliance used in this
letter is held by the learned Single Judge to mean making
necessary corrections, modifications or amendments
relating to storage and control of `edible oilseeds and
edible oils' in the State Order of 1981 as were made by
some State Governments by deleting `edible oilseeds and
edible oils' from their respective Orders. The learned
Single Judge concluded that once the `edible oilseeds and
edible oils' were deleted from the Central Storage Order
of 1977 by virtue of the Amendment Order of 1997 by the
Central Government, the State Order of 1981 stood
repealed in respect of licencing and stock declaration of
edible oilseeds and edible oils. It was held that the
impugned Order dated 26-7-2000 issued under clause 24(1)
of the State Order of 1981 was without authority. The
learned Single Judge therefore set aside that Order and
declared that the words `edible oilseeds and edible
oils', wherever occurring in the Gujarat Essential
Articles (Licencing, Control and Stock Declaration)
Order, 1981, stand deleted hereafter.
5. The learned Advocate General appearing for the
appellant - State of Gujarat in these two appeals
contended that, in view of the powers delegated to the
State Government under section 5 of the said Act, the
State Government was empowered to issue the State Order
of 1981, which was independent of the Central Order of
1977, and therefore, the validity of the provisions of
the State Order of 1981 did not depend upon the
provisions of the Central Order of 1977. It was
contended that the directions that may be issued under
clause 24 of the State Order of 1981 did not require any
concurrence under the conditions imposed in the
Notification dated 9-6-1978 delegating powers to the
State Government under section 5 of the said Act. It was
pointed out that, in the preamble of the State Order of
1981, it was recorded that the order was made with prior
concurrence of the Central Government. It was therefore
argued that even clause 24 of the State Order of 1981 was
issued after obtaining prior concurrence, meaning thereby
that the Central Government had agreed to the State
Government issuing the directions which were contemplated
by section 24. It was submitted that there were no
directions of the Central Government to the effect that
the State Government should not impose any stock limit
under clause 24 of the State Order and 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 order by the State
Government, and that the order dated 14th August 1998 was
justified. It was therefore futile to issue a writ
directing deletion of the entries notwithstanding the
concurrence of the Central Government also expressed
before this Court, even though no concurrence was
required under the order delegating the powers in matters
which were within the scope of clause (d) of section 3(2)
of the said Act. The learned Advocate General then
referred to the correspondence between the Union and the
State Government and submitted that there was no question
of any personal opinion being expressed in such official
correspondence and the State Government had impressed
upon the Central Government about the need to control the
stocks of `edible oilseeds and edible oils' in the State
having regard to the escalation of prices and to prevent
hoarding. It was pointed out that the Central Government
had readily agreed that the State Government may go ahead
with the stock restrictions in respect of these
commodities and it is only thereafter that the order
dated 14th August 1998 was issued by the State Government
under clause 24(1) of the State Order of 1981. It was
submitted that even the Central Government never
considered that by amending the Central Control Order of
1977, the powers of the State Government were being taken
away. The State Government was in fact asked to go ahead
with such restrictions under the provisions of the State
Order of 1981, which was made by the State Government
under section 3(1) of the said Act read with section 5
thereof. It was also submitted that this was not a case
where the State Government did not have its own powers in
respect of such commodities pointing out that the subject
matter fell within entry 33 of the Concurrent List. It
was submitted that even the State Government on its own
could have made a law on the subject and controlled these
essential commodities and that the executive power of the
State Government was coextensive with its legislative
powers under Article 162 of the Constitution. Therefore,
even the State Government on its own could have exercised
these powers within the limits of the constitutional
provisions which had a bearing on the aspect of
repugnancy. He submitted that the Central Legislature
enabled the State Government to exercise the statutory
powers under section 3(1) in respect of a matter which
was falling in the Concurrent List and this should be
therefore viewed from the angle that the central
legislature thought it proper to take States into
confidence by empowering their governments to make orders
under section 3(1) whenever the powers were delegated so
that the State Government may harmoniously act.
5.1 The learned Advocate General relied upon the
following decisions in support of his contentions :-
[a] He referred to the judgement in Roop Chand v.
State of Punjab, reported in AIR 1963 SC 1503, in
which it was held by the Supreme Court that a
power when delegated under the Act remains the
power of the Government. The Government can only
delegate the powers given to it by the statute
and cannot create an independent power in the
officer. It was held that when the delegate
exercises the powers, he does so for the
government. Therefore, an order made by an
officer, on delegation to him of the powers of
the government for the purposes of the Act, would
be an order of the government.
[b] The decision of the Supreme Court in K.
Ramanathan v. State of Tamil Nadu, reported in
AIR 1985 SC 660 was cited for the proposition
that the general power to issue the orders flows
from the provisions of sub-section (1) of section
3 of the said Act which stands delegated to the
State Government by virtue of the notification
issued under section 5 of the said Act.
[c] The decision of the Supreme Court in State of
Andhra Pradesh v. Potta Sanyasi Rao, reported in
AIR 1975 SC 2030 was cited for the proposition
that delegation under section 5 of the said Act
was a general delegation and that it would enure
for all exercise of powers by the State
Government with respect to commodities declared
essential by the Central Government even
subsequent to the order of delegation.
[d] The decision in Sarkari Sasta Anaj Vikreta Sangh
v. State of Madhya Pradesh, reported in AIR 1981
SC 2030 was pointed out to show that it was held
by the Supreme Court that concurrence of Central
Government was necessary under the delegation
Order GSR 800 dated June 9, 1978 made under
section 5 of the said Act only when the orders
related to matters specified in clauses (a), (c)
and (f) of section 3(2) of the said Act or in
respect to distribution or disposal of foodstuffs
to places outside the State or in respect to
regulation of transport of any foodstuff under
clause (d). It was submitted that, for the
Control Order which did not relate to any of
these matters, no concurrence of the Central
Government was necessary, as held by the Supreme
Court. Even if the concurrence is needlessly
obtained on earlier occasion, the State
Government was not obliged to obtain it whenever
again there was an amendment in the Control
Order.
6. The learned counsel appearing for the contesting
respondent No.1 in these two appeals strongly supported
the judgement and order of the learned Single Judge. He
argued that the State Order of 1981 was not an
independent order, but it was made in implementation of
the Central Order of 1977. Therefore, when by the
Amendment Order of 1997 made by the Central Government,
the words `edible oilseeds and edible oils' were deleted
from the Central Order of 1977, the State Order of 1981
ceased to operate as regards these essential commodities.
It was contended that prior to the State Order of 1981,
there was State Order of 1977 dealing with `edible
oilseeds and edible oils' made by the State Government in
aid of the Central Order of 1977. He submitted that
clause 3 of the Central Order of 1977 required the dealer
to get a licence under the State Control Order and the
State Control Order was expected only to provide for the
modalities regarding issuance and terms and conditions of
such licence. It was submitted that the basic
requirement of licence was in clause 3 of the Central
Order of 1977 and all other things fell within the
purview of the State Control Order, and therefore, when
the basic requirement of obtaining a licence in respect
of `edible oilseeds and edible oils' was taken away from
the Central Order of 1977, the State Government cannot
insist upon licences under its Control Order which were
meant to be only procedural in nature. The counsel
submitted that, when substantive provision was withdrawn
from the Central Order, the procedural provisions in the
State Order have to follow suit especially when the
licence was to be one and the same and no separate
licences were to be issued under the Central and State
Orders. It was submitted that the State Order had no
independent object to achieve and it was only in the aid
of the Central Storage Order of 1977 to provide for the
efficacy of clause 3 of the Central Order which required
a licence to be obtained under the State Order and
prescribed the stock limits. It was submitted that
Central Order continued to operate for nearly 22 years
which shows that it was regulating the field and the
State Orders were meant only to assist the Central
Government in implementation of its orders. The learned
counsel argued that, in 1997, the Central Government
reviewed the whole position, sought opinion of the State
Governments before issuing the Amendment Order on
10-11-1997 deleting `edible oilseeds and edible oils'
from the Central Order. The Central Order of 1977 came
to an end on 10-11-1997 in respect of `edible oilseeds
and edible oils' and consequently, the State Order of
1981 also came to an end so far these two commodities
were concerned. Therefore, clauses 15 and 24 of the
State Order cannot operate in respect of these two items
and hence, concurrence question would not arise. It was
submitted that no separate control order for these two
commodities had been issued by the State Government.
6.1 The learned counsel relied upon the following
decisions in support of his contentions :
[a] The decision of the Supreme Court in The District
Collector, Chittor v. The Chitoor District
Groundnut Traders' Association, reported in AIR
1989 SC 989 was cited for the proposition that a
delegate is not entitled to exercise powers in
respect of or in contravention of the delegated
powers. The Supreme Court was concerned with the
provisions of the Andhra Pradesh Scheduled
Commodities Dealers (Licencing and Distribution)
Order, 1982 and the question about 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 of the judgement, the
Supreme Court noted that the 1982 A.P. Order
which was framed by the State Government in
exercise of the delegated powers did not contain
any provision placing any restriction on the
transport or movement of the edible oil or oil
seeds nor did it provide for imposition of
compulsory levy, and that it did not fix any
price. 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.
Those directions had no sanction of law. It was
held that if the State Government was facing any
problem, it could have made amendments in the
1982 Order regulating matters specified in
clauses (d) and (f) of section 3(2) of the Act
after obtaining the prior concurrence of the
Central Government, but no such course was
followed. This is why, 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.
[b] Reliance was placed on the decision of the
Division Bench of the Andhra Pradesh High Court
which confirmed the decision of the learned
single Judge of the Andhra Pradesh High Court,
copies of which decisions are placed in the paper
book. In the Writ Appeals Nos. 1546 to 1549 of
1998, the Division Bench while confirming the
decision of the learned Single Judge observed
that if the Central Order of 1977 was to deal
only with storage limits of `edible oilseeds and
edible oils', then it would not have contained
clause 3. It was held that, a reading of clauses
3 and 4 of the Central Order of 1977 made it
clear that they operated in different fields and
that clause 3 dealt with requirement of obtaining
a licence, while clause 4 placed restriction on
dealer on its possession and the quantum of
`edible oilseeds and edible oils' by specifying
the maximum limits. It was held that the State
Government was labouring under a misconception
that it had power to fix prices, regulate
distribution and also movement of `edible
oilseeds and edible oils' and for exercise of
such power, it depended on clause 12 of the A.P.
Order, 1982. However, as held by the Supreme
Court in District Collector, Chittoor (supra),
there was no concurrence from the Central
Government for fixation of any price or placing
restrictions on movement or distribution of
`edible oilseeds and edible oils'. It was held
that since the `edible oilseeds and edible oils'
are now deleted from the purview of the Central
Order of 1977, as a necessary corollary, the
State Government is bound to obey the same and
now cannot insist upon obtaining of licence by
dealers or producers relating to edible oilseeds
and edible oils. The learned Single Judge of the
Andhra Pradesh High Court who had decided Writ
Petitions Nos. 3816 of 1998 and 7753 of 1998,
had held that the Andhra Pradesh Order of 1982
issued by the State Government was only the
product of the delegated authority to enable the
State Government to effectively implement the
orders already issued by the Central Government
in 1977. In paragraph 15 of that judgement, it
was held that the earlier State Order of 1978 was
a sequel to the order issued by the Central
Government in 1977 as the licences and other
terms and conditions were to be covered by the
State Order. It was held that, as on 1982, there
were two orders holding the field in respect of
`edible oilseeds and edible oils', but the order
made by the Central Government in 1977 was the
Parent Order issued under section 3 of the said
Act and only the licencing aspect was to be taken
care of by the State Government. It was held
that the Central Order will prevail over the
State Order in case of any conflict between the
two, and that the State cannot issue any order
disregarding the direction of the Central
Government. The learned Single Judge held that,
in view of the Amendment Order dated 10th
November 1997 deleting the words `edible oilseeds
and edible oils' wherever occurring in the
Central Storage Order, the State was required to
delete them, in compliance of such amendment,
from its order. It was held that the effect of
the direction of the Central Government was that
the existing State Order was required to be
properly amended and that the State ought to have
deleted the words `edible oilseeds and edible
oils' completely from the A.P. Order of 1982.
The learned Single Judge, therefore, ordered that
the commodities `edible oilseeds and edible oils'
wherever occurring in the A.P. Scheduled
Commodities Dealers (Licencing and Distribution)
Order, 1982 stand deleted and ordered that not
only the restriction on stock limits, but also
the licensing of dealer and all other
requirements stood dispensed with.
7. It has been contended 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 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 that 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 items stood repealed by the central law as
soon as these essential commodities were deleted from it
and the control thereon stood lifted. Continuing these
items in the State Order of 1981 was in conflict with the
lifting of control in the Central Order. The contention
was that the State is 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.
8. Let us therefore examine whether there is any
repugnancy between the Central Order of 1977 and the
State Order of 1981, which was issued under section 3(1)
of the said Act, so as to bring about any implied repeal
of the State Order of 1981 to the extent it relates to
`edible oilseeds and edible oils' which were deleted from
the Central Order of 1977, as contended on behalf of the
original petitioners. The State Order of 1981 was issued
by the State Government with prior concurrence of the
Central Government under section 3 read with section 5 of
the said Act. It provided for licencing, control and
stock declaration and was issued, because, the State
Government was of the opinion that it was necessary and
expedient so to do for maintaining supplies of the
essential commodities dealt with therein and for securing
their equitable distribution and availability at fair
prices. Essential articles to which the State Order of
1981 applies are enumerated in Schedule I thereof. Under
clause 3(1)(a) of the State Order of 1981, no person
shall carry on business as a dealer [as defined in clause
2(c)] in edible oilseeds including groundnut in shell;
edible oils including hydrogenated vegetable oils, food
grains, pulses, khandsari and sugar, if the stock of such
essential articles in his possession at any time exceeded
the quantities specified against them. A licence is also
required for carrying on business as a producer [as
defined in clause 2(17)] in essential articles under
clause 3(2). Prior to this State Order of 1981, there
existed various State Orders which were repealed by
clause 29 of the State Order of 1981 including the
Gujarat Pulses, Edible Oilseeds and Edible Oils Dealers,
Licence) Order, 1977 which contained similar licencing
provision in clause 3.
8.1 The Central Order of 1977 was issued for
maintaining supplies and for securing equitable
distribution and availability at fair prices of pulses,
edible oilseeds and edible oils. It extended to whole of
India and by clause 3 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 exceeded the tabulated
quantities. Thus, both the Central Government and the
State Government had issued orders in respect of `edible
oilseeds and edible oils'. Clause 3 of the Central Order
required licencing of dealers as per the State Order,
while clause 3 of the State Order required licencing of
dealers and producers of the essential articles including
`edible oilseeds and edible oils'. The Central
Government issued the order under section 3(1) of the
said Act and even the State Government had issued it
under the same provision by virtue of delegation of
powers to issue such orders made under section 5 of the
Central Government. By virtue of such delegation, both
the Central Government and the State Government had
powers to make such orders under section 3(1) of the said
Act. Even apart from the provisions of the Essential
Commodities Act and the delegation provision of section 5
thereof, the State Legislature had 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 powers coextensive with its legislative
power in respect of those items. The simultaneous
exercise of legislative powers in respect of the matters
entrusted to both the Union and the States and their
corresponding executive powers have to be viewed in
harmony with each other. The concept of concurrent
legislative powers to the Centre and the State is a
unique example of cooperative federalism and is meant to
accommodate and balance the perceptions of both the Union
and the State in the field of legislation.
8.2 Under Entry 33(b) and (c) of the Concurrent list,
both the Parliament and the State Legislatures have
legislative competence to make laws with respect to
foodstuff including `edible oilseeds and edible oils' and
price control. The said Act is enacted by the Parliament
under entry 33. The executive power of a State is
coextensive with its legislative power, but in any matter
with respect to which the legislature of a State and
Parliament both have powers to make laws, the executive
power of the State shall be subject to, and limited by,
the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the
Union or authorities thereof. The executive power
conferred by the Constitution on the Union is reflected
in Chapter II of Part 11 which requires the executive
power of every State to be so exercised as to ensure
compliance with the laws made by Parliament and so as not
to impede or prejudice the exercise of executive power of
the Union. When there is any inconsistency between the
laws made by Parliament and by the State Legislature, the
law made by Parliament shall prevail and to the extent of
repugnancy, the State law will be void. When law is made
by the Legislature of a State with respect to a matter
enumerated in the Concurrent List and if the State law
has received Presidential assent, it will prevail in that
State, notwithstanding its being inconsistent with the
law made by the Parliament. The State can make law where
there is no central legislation or with a view to
supplement the central legislation. Both, the Centre and
the State, must be presumed to be conscious of the need
for accord and need for accommodating each other in the
common interest, as was held by the Supreme court in Ram
Chandra v. A Lal and others, reported in AIR 1987 SC
1837. One of the test for ascertaining whether the
inconsistency is irreconcilable is to pose a question:
Can the State law be obeyed or respected without flouting
or violating the Central law in letter and spirit? If
the answer is in the affirmative, the State law cannot be
invalidated.
8.3 The question of repugnancy between the Order made
by the central Government and the Order made by the State
Government would arise in case both the Orders occupy the
same field with respect to the same matter and there is a
direct conflict between the two provisions. If both the
provisions occupying the same field do not deal with the
same matter, but distinct, though cognate or allied
matter, there is no repeal by implication as held by the
Supreme Court in K.S. Hegde v. State of Karnataka,
reported in (1990) 2 SCC 562. In context of the
concurrent legislative powers conferred by entry 33 of
the Concurrent List, the Supreme Court in Ch. Tika Ramji
v. The State of Uttar Pradesh, reported in AIR 1956 SC
676 held that the provincial legislatures as well as
central legislature would be competent to enact laws on
the same subject and the exercise of concurrent
jurisdiction by the central legislature would not deprive
provincial legislature of similar powers. Both would be
competent to enact such pieces of legislation and no
question of legislative competence would arise. 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 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. The Supreme
Court 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.
9. The State could have made legislation on all the
matters falling under entry 33 of the Concurrent List
including foodstuffs, edible oilseeds and edible oils in
exercise of its own concurrent powers within the bounds
of the constitutional mandate and by obtaining
Presidential assent even its laws in conflict with the
parliamentary legislation would have operated in the
State. Instead, the Parliament in exercise of its
concurrent powers, while legislating on this subject
provided for delegation of the powers by the Central
Government to the State Government to issue orders under
section 3(1) of the said Act. The power statutorily
delegated under section 5 retains its quality and level
and the orders issued by the State Government have the
same efficacy as that of the orders issued by the Central
Government. By the notified order dated 9th June 1978
made under section 5 of the said Act, it was directed
that the power to issue orders or notifications under
section 3 be also exercisable by the State Government or
other officer or authority, as may be specified in the
direction. The delegation of powers is made subject to
conditions, if any, as may be specified in the Order.
The conditions subject to which the powers under section
3(1) of the said Act to make orders in relation to
foodstuffs to provide for the matters specified in
clauses (a) to (g) were stated in the said Order GSR 800
dated 9th June 1998 as under :
"[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."
The exercise of powers to issue orders was made
subject to directions that may be issued by the Central
Government. It will be seen 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 other matters.
10. By order dated 10th November 1997 issued under
section 3 of the said Act, the Central Government amended
its Storage Control Order of 1997 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 pre-amended Central Order of 1977,
however continued to operate. The Central Amendment
Order of 1997 did not even purport to amend the State
Order of 1981. The question is whether there was any
implied repeal of the provisions relating to `edible
oilseeds and edible oils' in the State Order of 1981
merely because the provisions of the Central Order of
1977 were amended by omitting `edible oilseeds and edible
oils' therefrom or whether the omission of these items
from the Central Order brought about any repugnancy in
the State Order of 1981. There can arise no question of
repugnancy when the field is not governed by both the
Central and State Orders in respect of the same subject
matter. The power under section 3(1) conferred by a
valid delegation under section 5 of the said Act did not
depend upon any prior exercise of any power under section
3(1) by the Central Government. In other words, efficacy
of the State Order of 1981 under section 3(1) or its
legitimacy did not depend on existence of an Order in the
same field by the Central Government. The State
Government can make orders independently of the fact
whether the Central Government has made an order in the
same field. There will not be much sense in delegating
power to make orders to the State Government if the said
orders are meant to be only mirror reflections of the
Central Orders. In fact, the purpose of delegation, in
such cases, would be to let the State Government deal
with the situation, of course, subject to the conditions
on which the power is delegated to it. 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, and there can never arise any question of
conflict or repugnancy after those items were removed
from the Central Order. When no question of conflict or
repugnancy can arise, because, the Central Order of 1977
ceases to govern the field as regards the `edible
oilseeds and edible oils' and only the provisions of the
State Order of 1981 remain in the field, there can be no
implied repeal of the provisions of the State Order of
1981 relating to `edible oilseeds and edible oils'. We
hold that the omission of `edible oilseeds and edible
oils' from the Central Order of 1977 had 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 said Act.
11. The question then remains whether there were
executive directions issued by the Central Government to
the State Government to amend the provisions of the State
Order of 1981 in so far as they related to `edible
oilseeds and edible oils'. The communication dated
13-11-1997 has been heavily relied upon on behalf of the
respondents as containing such a direction. In para 20
of the judgement, the learned Single Judge observed that,
by the Central Government letters dated 13-11-1997 and
23-12-1997 all the State Governments were required to
make amendment in the existing State Government Orders to
delete the words `edible oilseeds and edible oils' or to
make law to give effect to the direction of the Central
Government. In paragraph 23 of the judgement, the
learned Judge refers to `circular' dated 23-12-1997, a
copy of which is on record. This communication is
nothing but a letter addressed by a Joint Secretary of
the Union Ministry to one Ex-M.P. (named Shri Shyam
Bihari Mishra) in response to some query which was made
in a letter written by him, which is not produced on
record. This communication only narrates that the
Central Order of 1977 was amended by the Amendment Order
dated 10-11-1997 and the corregendum dated 11-12-1997
deleting `edible oilseeds and edible oils' from the
clauses of the Central Order. It was mentioned therein
that the State Government and the Union Territories were
requested by the office letter dated 13-11-1997 to ensure
compliance with the amendments "to the said Order of
1997". The letter dated 13-11-1997 was written by the
Chief Director of the Ministry of Food and Consumers
Affairs to Secretaries of all States and Union
Territories forwarding the Amendment Order dated
10-11-1997 relating to deletion of certain clauses of the
Central Order of 1977 in so far as they related to
`edible oilseeds and edible oils' "for information and
compliance." The learned Single Judge held that the
meaning of the word `compliance' in this letter was not
just re-notifying Central Amendment Order of 1997, but
its meaning was to make necessary corrections,
modifications or amendments in the State Order of 1981
relating to storage and control of edible oilseeds and
edible oils. It has been held that it was wrongly
assumed by the State Government that the delegated powers
have not been taken back by the Central Government, and
that the State Order of 1981 is still in operation in
respect of `edible oilseeds and edible oils'. In other
words, the learned Single Judge held that the State Order
of 1981 stood repealed as regards these items and the
delegation under section 5 stood withdrawn. Delegation
under section 5 was of general nature and not confined to
any particular foodstuff. The withdrawal of delegation
could not have been effected except by modifying the
notified order of 9-6-1998. If at all the Central
Government wanted to withdraw the delegation, it would
have made necessary modifications in that order or issued
directions to the State Government to delete these items
also from its Order of 1981. The Amendment Order dated
10-11-1997 deleting these items from the Central Order of
1977 was not intended to amend the State Order of 1981
and there is no provision in the Amendment Order of
10-11-1997, which would justify taking away or
restricting the powers of the State Government, in
respect of these commodities, which were delegated to it
under section 5 of the said Act. In fact, in absence of
the Central Order of 1977 governing the field by reason
of deletion of these items, the question of any possible
conflict of the State Order with the Central Order
vanished and the field was now left to the State
Government as a delegate and its Order would continue to
operate in the field in absence of any direction to
delete these items from the State Order. There is no
provision in the Amendment Order of the Central
Government which by necessary implication can be said to
be repealing any provision of the State Order of 1981.
The meaning given to the word `compliance' occuring in
the letter dated 13-11-1997 under which a copy of the
Amendment Order of 10-11-1997 was forwarded "for
information and compliance", by the learned Single Judge,
is not at all warranted, since there was no express or
implied repeal of the provisions of the State Order of
1981, nor was the delegation of power made under the
notified Order dated 9th June 1998 under section 5 of the
said Act withdrawn or curtailed by any subsequent order.
The delegation continued to be valid for all foodstuffs
including `edible oilseeds and edible oils'. The power
delegated to the State Government under section 3(1) read
with section 5 of the Act never depended on the exercise
of power under section 3(1) by the Central Government and
it could be exercised irrespective of the fact whether
the Central Government made any Order or not on the same
subject. The Order of the State Government did not
derive its life from the Central Order of 1977, but from
its powers under section 3(1) read with section 5 of the
said Act and therefore, none of its provision will die by
deletion or omission of the provisions of the Central
Order of 1977.
11.1 The word `compliance' in the circular letter
dated 13-11-1997 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) to furnish a
fortnightly return to an authority specified by the State
Government (under clause 5 of the Second Order) in
respect of the stocks held by him. By no stretch of
imagination, can the word `compliance' in the letter
dated 13-11-1997 be construed to be a direction to amend
the State Order, because, the State Order of 1981 derived
its life not from the Central Order of 1977, but stood on
its own by virtue of the powers of the State Government
under section 3(1) read with section 5 of the said Act
and it continued to operate in absence of any direction
to delete these items from the State Order or by
withdrawal of delegation. In short, there was no
curtailment of the State Government's powers either by
any amendment of the notified order issued under section
5 or by issuing any directions as envisaged thereunder.
12. There is no warrant for holding that the views
that are reflected in the communication sent by the Union
Minister and the Secretary of the concerned Department to
the State, were an expression of any personal opinion of
the Minister and the Secretary as has been held by the
learned Single Judge. The letter dated 19th June 1998
was written by the State Minister to the Union Minister
for Food and Consumer Affairs and a copy thereof was
forwarded for urgent necessary action to the Secretary,
Government of India by him in the concerned Department.
In that letter, it was pointed out that there was a price
escalation of groundnut oil which rose from Rs.39=00 per
kg in June 1997 to Rs.50=00 per kg in June 1998. The
Union Minister's attention was drawn to the fact that
there was speculative rise in prices and poor farmers had
not been benefitted at all. It was mentioned that the
interested lobby in edible oils had started taking
advantage of hoarding the stock and had captured the
market of edible oil in Gujarat with the sole motive of
fetching exorbitant profits. The State Minister wrote
that it was therefore absolutely imperative that the
State Government must have the powers to enforce strict
control over the unscrupulous oil traders and millers,
but unfortunately, ever since the withdrawal of the
Central Stock Control Order, 1977 in respect of edible
oils and edible seeds, they had absolutely a free hand,
resulting in an unprecedented price rise which had put
the State Government in a very precarious situation. It
was stated that if this trend was not checked
immediately, there were all chances of breakdown of law
and order, and that, from all quarters, the State
Government was under a heavy pressure and that there
appeared a clear warning signal that if the prices were
not arrested forthwith, a serious situation would arise
in the State. The State Minister requested the Union
Minister to re-introduce stock control at the earliest so
that the State Government can control the situation. He
earnestly requested the Union Minister to issue necessary
concurrence in this regard at the earliest. It is clear
from this communication that it was not intended to be a
letter expressing private views, but it was written by
the Minister in charge of the concerned Department of the
State to the Union Minister of the Central Government who
had an authority to issue such concurrence.
12.1 On 27th July 1998, the Union Minister for Food
and Consumer Affairs, Government of India responded to
the letter of the State Minister drawing his attention to
the notified order dated 9th June 1978, by which the
Central Government had delegated the powers conferred by
section 3(1) of the Act, to make necessary orders to
provide for matters specified in clauses (a) to (j) of
section 3(2), to the State Government under section 5 of
the said Act subject to certain conditions. It was
stated that if the State Government finds it appropriate,
it can regulate the storage, distribution etc. of
`edible oilseeds and edible oils'. It was also stated
that the State Governments would be the appropriate
authority to take decision regarding the permissible
stock limits and the turn over period within their area
of jurisdiction. The Union Minister also wrote that,
considering the widespread public perception that prices
of essential commodities have risen sharply in the recent
past, the State Government may like to take an emergent
decision for use of the said order dated 9th June 1978 in
respect of `edible oilseeds and edible oils'. There can
never be a clearer concurrence to the State Government's
request for applying the State Order of 1981 which was
issued with prior concurrence after the powers were
delegated under the notified order dated 9th June 1978
under section 5 of the said Act to edible oilseeds and
edible oils. This letter also cannot be said to be
expression of any private views of the Union Minister.
He had taken into consideration the situation that had
arisen in the State and the request of the State
Government for concurrence and indicated that the
delegation of the powers under the notified order dated
9th June 1978 stood good notwithstanding the amendment in
the Central Order of 1977 and that the State Government
can go ahead with the stock control measures in respect
of these essential articles. The communication by this
letter was not a private message, but was meant to be an
official response of the Central Government to the
request of the State Government asking it to restore the
stock control over these essential commodities in view of
the consequences that had arisen because of the amendment
in the Central Order of 1977, in this region. The
Secretary to the Government of India to whom the State
Minister had forwarded a copy of his letter dated 19th
June 1998 had also officially responded by writing a
letter to the Chief Secretary of the State on 24th July
1998, the contents of which are similar to those of the
communication of the Union Minister to the State Minister
sent on 27th July 1998. There is a reference to the fact
that some State Governments have represented that the
Storage Control Order pertaining to `edible oilseeds and
edible oils' should be reimposed by the Central
Government. In fact, this State was already having the
State Order of 1981 governing the field and that order
was issued with prior approval of the government in
exercise of the powers delegated to the State Government
and there was therefore no need to make a fresh order
after obtaining a fresh approval. As held by us
hereinabove, the State Order of 1981 continued to govern
the field notwithstanding the amendment in the Central
Order of 1977 and what could have earlier been done under
the State Order can be continued to be done under it with
more freedom, especially in view of the fact that these
items were deleted from the Central Order of 1977 and
there remained no possibility of any conflict between the
exercise of powers by the State Government and the
Central Government in respect of these essential articles
which the Central Order ceased to govern after its
amendment.
12.2 By the communication dated 1st August 1998 in
response to the letter of the Secretary, Government of
India, Ministry of Food and Consumer Affairs, the State
Government indicated that it will impose stock limits on
`edible oilseeds and edible oils'. The concurrence of
the Central Government on issuance of such specific
direction under section 24(1), 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 this
proceeding has stood by the State Government in respect
of issuance of the directions under clause 24(1)
specifying the stock limits. The State Order of 1981
already contained a stock limit in the tabulated form in
clause 3 thereof in context of obtaining a licence. The
State Government had after entering into correspondence
with the Central Government and obtaining the clearance
for issuing stock control directions, issued order dated
14th August 1998. Clause 24(1) of the Government Order
of 1981 empowered the State Government to issue
directions to dealers or producers, 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. Clause 24
already had prior concurrence of the Central Government
which is noted in the preamble of the Gujarat Order of
1981. Therefore, the issuance of the directions which
are in fact at the behest of the Central Government,
regarding maintenance of stocks under clause 24(1) at a
time when there were no directions governing the field
issued by the Central Government, was a matter
permissible under the Gujarat Order of 1981 and issuance
of such directions did not in any way conflict with any
provisions of the Central Order of 1977, which ceased to
contain any direction regarding maintenance of stock of
edible oilseeds and edible oils after the amendment made
on 10-11-1997.
12.3 In the above view of the matter, there was no
valid basis or reason for issuing a declaration that the
words `edible oilseeds and edible oils' should stand
deleted from the Gujarat Order of 1981 or for setting
aside the directions issued by the State Government
regarding maintenance of stock under clause 24(1) of the
State Order of 1981. We therefore find no justification
for granting any relief to the petitioners as has been
done in the impugned order. For the reasons that we have
given hereinabove, we are, with respect, unable to agree
with the opinion of the learned Single Judge and the
views expressed by the Andhra Pradesh High Court on the
subject. Since the Special Leave Petition was summarily
dismissed by the Supreme Court, we have found no
impediment in our considering the matter, and, in all
fairness to the learned counsel for the contesting
respondent, we may say that he did not contend that,
because the Special Leave Petition was summarily
dismissed against the decision of the Andhra Pradesh High
Court, we should treat that as a decision binding on us.
13. In the above view of the matter, both these
appeals are allowed and the impugned judgement and order
of the learned Single Judge is hereby set aside. Both
the petitions stand rejected. There shall be no orders
as to costs all through out.
APRIL 19, 2001 [ R.K.ABICHANDANI, J. ]
[ M.C.PATEL, J. ]
parmar*
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