Skip to content


Deep Chand Gupta Vs. the Union of India - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 250 of 1969
Judge
Reported in6(1970)DLT154
ActsConstitution of India - Article 19(1)
AppellantDeep Chand Gupta
RespondentThe Union of India
Advocates: A.K. Sen,; B. Dutt,; C.B. Aggarwal and;
Cases ReferredManohar Lal v. The State of Punjab
Excerpt:
.....302 - subordinate legislation validly made--effect of--delhi, meerut and bulandshahar milk & milk products control order, 1969--validity of--law as contemplated by article 3 02--article 19(1) (g), nto contravened.; that when parliament enacts a law and under the provisions of the enactment an order is validly issued, such an order for all intents and purposes becomes a part of the enactment and can be enforced in the same manner as the provisions of the parent enactment it acquires the attributes of the said enactment and has as much binding force as the provisions of the enactment. due to complexity of modern times and to meet different situations, the legislature can make provision in an enactment for the promulgation of an order for specific purposes and to meet contingencies..........have impugned the constitutional validity of the delhi, meerut and buland shahr milk and milk products control order, 1969 (hereinafter referred to as the order). the respondents named in the petitions are the union of india through the secretary, ministry of food, agriculture, community development, co-operation and panchayat raj (department of agriculture), and the delhi administration through the under secretary (civil supplies).(2) the impunged order was issued by the central government on february 27, 1969. the preamble of the order reads as under :- 'whereas the central government is of opinion that it is necessary so to do for maintaining and increasing supplies of milk and for securing its equitable distribution in the areas comprising the union territory of delhi and.....
Judgment:

H.R. Khanna, J.

(1) This judgment would dispose of Civil Writs Nos. 250 and 251 of 1969 wherein the petitioners have impugned the constitutional validity of the Delhi, Meerut and Buland shahr Milk and Milk Products Control Order, 1969 (hereinafter referred to as the order). The respondents named in the petitions are the Union of India through the Secretary, Ministry of Food, Agriculture, Community Development, Co-operation and Panchayat Raj (Department of Agriculture), and the Delhi Administration through the Under Secretary (Civil Supplies).

(2) The impunged Order was issued by the Central Government on February 27, 1969. The preamble of the order reads as under :-

'Whereas the Central Government is of opinion that it is necessary so to do for maintaining and increasing supplies of milk and for securing its equitable distribution in the areas comprising the Union Territory of Delhi and the Districts of Meerut and Bulandshahar in the State of Uttar Pradesh:

'NOW, thereforee, in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (No. 10 of 1955), the Central Government hereby makes the the following orders:'

(3) According to clause I of the Order, it extends to the areas comprising the Union Territory of Delhi and the districts of Meerut and Bulandshahar in the State of Uttar Pradesh. The order came into force on April 15, 1969 and shall cease to operate on July 15. 1969 except as respects things done or omitted to be done before such cease of operation. Clause 2 gives the definitions, while clause 3 of the Order reads as under:-

'PROHIBITION of manufacture, sale, service, supply or export of milk and milk products, No person shall-

(A)use milk of any kind for the manufacture of cream, casein, skimmed milk, khoya, rubree, pander or any kind of sweets in the preparation of which milk or any of its products except ghee is an ingredient; or

(B)Export milk of any kind; or

(C)sell, serve, supply or export, or cause to be sold, served, supplied or exported cream, casein, skimmed milk, rubree, pander of any kind of sweets in the preparation of which milk or any of its products except ghee is an ingredient;

PROVIDED that nothing in this clause shall apply-

(I)To the use of milk for the manufacture of and to the sale, service supply or export of ice-cream, kulfi or kulfa, in the preparation of which no khoya, rubree or cream is used.

(II)To the export of milk of any kind by a person engaged in the manufacture of infant milk food.

(A)Whose undertaking has been registered or licensed under the Industries (Development and Regulation) Act, 1951 (65 of 1951) and

(B)who has been exporting milk of any kind for the purpose of the manufacture of infant milk food for a period of six months immediately preceding the commencement of this Order, if he has obtained a permit to that effect from the controlling officer:'

(4) Clause 4 of the Order gives powers of entry, search and seizure to a police-officer with a view to ensure compliance with the provisions of the Order. The petitioners claim that they have been dealing in and carrying on trade of selling and supplying Mawa (Khoya) in the Union Territory of Delhi since a long time. The impunged Order is stated to have resulted in a complete ban on the business and trade of the petitioners. The petitioners have prayed for declaring the impugned Order to the ultra virus of the Constitution. Prayer has also been made for restraining the respondents and their subordinates from taking any action in furtherance of the impugned Order.

(5) Although a number of grounds were set up by the petitioners in the petitions for assailing the validity of the impugned Order, Mr. Sen on behalf of the petitioners at the hearing has confined himself to two main grounds. The first ground relates to the validity of the order vis-a-vis article 302 of the Constitution which reads as under:-

'PARLIAMENT may be law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.'

(6) It is urged that the restriction contemplated by the above Order could be imposed by an Act of Parliament and nto by an Order issued by the Central Government under an Act of the Parliament. The impugned Order is stated to be nto law as contemplated by Article 302. The second contention advanced on behalf of the petitioners is that the impugned Order places unreasonable restriction on the right of the petitioners to carry on the trade and business, and is nto in public interest. The Order is thus stated to have contravened sub-clause (g) of clause (1) of Article 19 as well as Article 302 of the Constitution.

(7) The petition has been resisted by the respondents and the affidavits of Shri Santokh Singh, Under Secretary to the Government of India, Ministry of Food, Agriculture, Community Development and Co-operation (Department of Agriculture) have been filed in opposition.

(8) We have heard Mr. Sen on behalf of the petitioners and Mr. Aggarwal on behalf of the respondents; and are of the view that there is no substance in either of the contentions advanced on behalf of the petitioners and that the petitions are liable to be dismissed.

(9) So far as the first contention is concerned that the impugned order does nto answer to the description of law contemplated by Article 302, we find that the impugned Order was issued by the Central Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (No. 10 of 1955). According to sub-section (1) of that section if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. According to clause (g) of sub-section (2) of that section, an order made under that section may provide for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs or cotton textile which, in the opinion of the authority making the order, are, or, if unregulated, are .likely to be detrimental to the public interest. Sub-section (6) of section 3 reads as under:-

'EVERY order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.'

(10) It is nto disputed that the impugned Order falls within the ambit of the powers conferred upon the Central Government by section 3 of the Essential Commodities Act. But What is contended on behalf of the petitioners is, as stated earlier, that as the impugned Order was issued by the Central Government and was nto enacted by the Parliament, it does nto constitute law for the purpose of Article 302. In this respect we are of the view that as the impugned Order was issued by the Central Government in exercise of the powers conferred upon it by the Essential Commodities Act, It should be held to constitute law as contemplated by Article 302. When Parliament enacts a law and under the provisions of the enactment an order is validly issued, such an order for all intents and purposes becomes a part of the enactment and can be enforced in the same manner as the provisions of the parent enactment. It acquires the attributes of the said enactment and .has as much binding force as the provisions of the enactment. Due to complexity of modern times and to meet different situations the Legislature can make provision in an enactment for the promulgation of an order for specific purposes and to meet contingencies clearly indicated. An order so promulgated would constitute law nto only as defined in Article 12 but also as contemplated by Article 302 of the Constitution. As stated in Halsbury's Laws of England on page 484, Volume 36, Third Edition, subordinate legislation has, if validly made, the full force and effect of a statute, and this is so whether or nto the statute under which it is made provides expressly that it is to have effect as if enacted therein. The observations on page 50-51 of the Interpretation of Statutes by Maxwell, 10th Edition, are still more to the point. It is stated therein:

'INSTRUMENTS made under an Act which prescribes that they shall be laid before Parliament for a prescribed number of days; during which period they may be annulled by a resolution of either House, but that if nto so annulled they are to be of the same effect as if contained in the Act, and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act.'

(11) The above observations were followed by Subba Rao, J. (as he then was), speaking for the majority, in the case of State of Uttar Pradesh and others v. Babu Ram Mr. Sen on behalf of the petitioners has referred to the case of State of Mysore v. H. Sanjeeviah, The said case relates to rules framed under section 37 of the Madras Forest Act 11 of 1900. Section 37 of that Act gave power to the State Government to make rules regulating the transit of forest produce. Rule 2 framed there under prohibited the removal of forest produce without a permit. After the promulgation of the Constitution in 1950 two provisos were added to the said rule the first of which prohibited the issue of permits allowing forest produce to be removed between sun-set and sun-rise, while the second permitted such removal between sun-set and 10 p. m. on certain conditions. The respondent who was a forest contractor, challenged the validity of the two provisos on the ground that they were beyond the rule making power under section 37 of the Madras Forest Act and were restrictive of his freedom of trade and commerce declared by Article 301 of the Constitution. It was held that the power to impose restrictions of the nature contemplated by the two provisos to rule 2 was nto to be found in any of the clauses of section 37 of the Act. It was also observed that the two provisos did nto constitute law passed by the Legislature of a State as contemplated by Article 304 of the Constitution. The observations in that case have essentially to be taken in the context of the finding that the power to impose restrictions of the nature contemplated by the two provisos to rule 2 was nto to be found. in any of the clauses of section 37 of the Madras Forest Act. In the present case, as stated above, the impugned order falls within the ambit of the powers conferred by section 3 of the Essential Commodities Act on the Central Government. As such, the petitioners, in our opinion, cannto derive much assistance from the cited authority. We are fortified in the view, we have taken above, by a Bench decision of this Court (Om Parkash and Deshpande, JJ.) in Shri Ganpat Ram and others v. The Union of India and others, decided on June 7, 1968. In that writ petition the petitioners had challenged the validity of the Delhi, Meerut and Bulandshahr Milk and Milk Products Order, 1968. The learned Judges, while dismissing the petition, repelled the contention advanced on behalf of the petitioners that the restriction imposed by the order was nto legal as it had nto been imposed by Parliamentary legislation but by subordinate legislation. It was observed.

'THE order in question is a piece of subordinate legislation which is expressly authorised by the section 3 of the Essential Commodities Act. It is elementary that subordinate legislation is of the same nature as ordinary legislation in so far as both of them are legislative acts, as distinguished from an executive act.'

(12) Coming to the second contention advanced on behalf of the petitioners that the restriction on freedom of trade and business imposed by the impugned Order is unreasonable and nto in public interest, we find that the affidavit of Shri Santokh Singh shows that the impugned Order has been issued with a view to ensure sufficient supply of milk during summer months to the citizens of the area covered by the Order. It is stated in the affidavit that the restrictions on manufacture of Khoya or other luxury milk products under the Order would result directly in maintaining and increasing supplies of milk and securing its equitable distribution. But for the restriction imposed by the Order, according to the affidavit, the prices of milk in Delhi would shoto rocket high and there was every probability of acute scarcity of milk in the summer months. The prohibition imposed by the Order, it is added, would save large quantities of milk for consumption by the general public. The Order is thus stated to have been issued in larger public interest. Shri Santokh Singh has also given the figures of procurement of Delhi Milk Scheme of 1968 in order to show the necessity of the impugned Order. The ' figures are as under:-

'A.Procurement of buffalo milk by D.M.S. on 11th May 1968 (before promulgation of the Order 1968). 83655.72 Litres (as against daily average procurement of 142, 607 Litres of buffalo milk for April 1968)'.

B.Procurement of buffalo milk by D.M.S. on 16th May (after the promulgation of the Order.) 1,18,377.83 Litres

C.Thereafter procurement went up and on 31st May, 1968, it was- 1,40,000 Litres.'

It is further stated by Shri Santokh Singh in his affidavit that when the ban was removed in the month of July 1968 the supply of milk to the citizen of Delhi was seriously affected. The facts brought out in the affidavit of Shri Santokh Singh, in our opinion, go to show that the restriction imposed by the impugned Order is reasonable and in public interest.

(13) Milk is one of the most wholesome articles of food with a high nutritious value. It plays an important part in body building and in a country like ours where large sections of population do nto take meat and eggs, the necessity to ensure supplies of milk is too obvious to need emphasis. It is also manifest that if milk is utilised for the preparation of Khoya and other luxury products of milk, the supply of milk is bound to get diminished, ft is well known that during the summer months, before the start of rains, the milk yield goes down and it results in reduced availability of milk. To ensure free supply of milk in the capital and surrounding areas, the Central Government has issued the impugned Order and, in our opinion, the restriction placed therein about the manufacture and sale of Khoya and other such milk products is reasonable and in public interest. The fact that the restriction results in increased availability of milk is clear from the figures of milk procurement of Delhi Milk Scheme which is one of the biggest suppliers of milk for the Capital. We have no doubt that what is true of the Delhi Milk Scheme is also true of other dairies and milk vendors.

(14) We may mention that their Lordships of the Supreme Court in the case of S. Ajit Singh v. State of Punjab and another, writ Petition No. 187 of 1966, decided on February 24, 1967 repelled the contention which was advanced on behalf of the petitioner that the Punjab Milk Products Control Order, which contained restrictions similar to those contained in the impugned Order in this case, infringed the fundamental freedom granted to the petitioner under Articles 19(1)(g) and 14 of the Constitution. Clause (v) of the proviso was, however, struck down, because no principles were laid down in that clause to guide the Milk Commissioner. We are, however, nto concerned with any clause similar to the clause struck down in the Punjab Milk Products Control Order.

(15) Apart from the above Supreme Court decision we find that challenge to the validity of the Delhi, Meerut and Bulandshahr Milk and Milk Products Order, 1968, was repelled in a Bench decision of this Court in the case of Shri Ganpat Ram and others v. The Union of India (supra).

(16) Lastly it has been argued that even if it was necessary to ban the manufacture of Khoya and other milk products in the areas covered by the Order, there was no justification for banning the sale of sweets prepared with Khoya after importing it from places like Jaipur, Alwar, Agra, Mathura, Aligarh, Muzaffarnagar and Muradabad. In this respect we find that the affidavit of Shri Santokh Singh shows that the districts of Meerut and Bulandshahr are the main sources of supply of Khoya for Delhi and that Jaipur, Alwar, Agra, Mathura, Aligarh, Muzaffarnagar and Muradabad supply only insignificant quantities of Khoya and that too occasionally. Be that as it may, there is one aspect of the matter which cannto be lost sight of. In case the sale of sweets manufactured with Khoya imported from places outside the area covered by the impugned Order was allowed, it would be difficult to enforce the provisions of the Order and is bound to result in large scale circumvention of its provisions. The reason for that is that the Khoya imported from outside places would nto have any special mark to distinguish it from the Khoya manufactured in Delhi. The restriction in those marginal cases would thus have to be upheld in order to ensure effective enforcement of the provisions of the impugned order. We may in this context refer to the case of Manohar Lal v. The State of Punjab, wherein it was observed while upholding the validity of the provisions of the Punjab Trade Employees Act:

'IT may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will nto stamp a law otherwise valid as within legislative competence with 'the character of unconstitutionality as being unreasonable. The provisions could, thereforee, be justified as for securing administrative convenience and for the proper enforcement of it without evasion.'

(17) We, thereforee, find no ground to quash the impugned Order. Both the petitions fail and are dismissed, but, in the circumstances, we make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //