Skip to content


Sitaram and Sons and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Writ Petn. Nos. 1979 to 1982 of 1973
Judge
Reported inAIR1975Raj78; 1974(7)WLN774
ActsRajasthan (Display of Prices and Stocks of Essential Commodities) Order, 1966; Iron and Steel (Control) Order, 1956; Constitution of India - Article 245; Essential Commodities Act - Sections 3
AppellantSitaram and Sons and ors.
RespondentState of Rajasthan and ors.
Appellant Advocate Hastimal Parekh, Adv.
Respondent Advocate M.L. Shrimal, Addl. Adv. General
DispositionPetition allowed
Cases ReferredC. Lingam v. Government of India
Excerpt:
essential commodities act - section 3 & iron & steel (control) order and rajasthan (display of prices and stocks of essential commodities) order, 1966--state government is not empowered to legislate on the matters already covered by the central order.;the iron and steel (control) order contains exhaustive code in regard to the matters specified in sub-section (1) of section 3 of the act.; there can be on scope left for the state government to legislate on the provisions which are already covered by the provisiones of the iron and steel (control) order.;the state govt. is not competent to make any provisions in the face of those made by the central government as they will be deemed to be inconsistent. the inconsistency need not be direct. in the presence of the iron and steel.....orderm.l. joshi, j.1. these four writ petitions challenge the validity of the rajas-than (display of prices & stocks of essential commodities) order, 1966 on various grounds to be stated hereinafter. there is no material difference in the facts of these four writ petitions and so it will be sufficient to state facts from one of the writ petitions, viz. s. b. civil miscellaneous writ petition no. 1979 of 1973, (m/s. sitaram and sons v. state of raiasthan) with reference to which all the writ petitions have been argued bv the learned counsel for the parties. the contentions raised in all these four writ petitions are common and. therefore, the petitions are being disposed of bv a common iudff-ment.2. to resume the facts from the writ petition no. 1979 of 1973, (m/s. sitaram and sons v......
Judgment:
ORDER

M.L. Joshi, J.

1. These four writ petitions challenge the validity of the Rajas-than (Display of Prices & Stocks of Essential Commodities) Order, 1966 on various grounds to be stated hereinafter. There is no material difference in the facts of these four writ petitions and so it will be sufficient to state facts from one of the writ petitions, viz. S. B. Civil Miscellaneous Writ Petition No. 1979 of 1973, (M/s. Sitaram and Sons v. State of Raiasthan) with reference to which all the writ petitions have been argued bv the learned counsel for the parties. The contentions raised in all these four writ petitions are common and. therefore, the petitions are being disposed of bv a common iudff-ment.

2. To resume the facts from the writ petition No. 1979 of 1973, (M/s. Sitaram and Sons v. State of Raiasthan) it may be stated that the petitioner is a dealer in iron and steel materials at Jaipur. The Raiasthan Government issued an order known as Raiasthan (Displav of Prices and Stocks of Essential Commodities) Order. 1966 which shall be hereinafter referred as the impugned order, in the exercise of powers conferred bv Section 3 of the Essential Commodities Act read with the notifications of the Government of India, Ministry of Food, Agriculture. Community, Development 'and Cooperation, Department of Food, dated June 9. 1966 and June 18, 1966. This impugned order sought to impose restriction on the dealer in the matter of exhibition of list of prices in regard to the articles listed in the schedule to the impugned order and also enjoined upon to dealer to sell the articles subject to the terms and conditions mentioned in Clause (4) of the impugned order. Certain more restrictions have been placed under the impugned order, which shall be adverted to hereinafter at appropriate places. Originally the schedule to the impugned order contained the list of articles in which iron and steel did not find place, but later on iron and steel were also came to be added in the schedule to the impugned order prior to the filing of the writ, which fact is not disputed before mp bv either side. It may also be stated here that prior to the issuance of the impugned order the Government of India promulgated Iron and Steel (Control) Order. 1956 in exercise of its powers under Section 3 of the Essential Commodities Act, 1955. hereinafter called the Act. The Iron and Steel (Control) Order. 1956, which contains the provisions for the regulation and maintenance of the price and distribution of the goods and their availability at fair prices deals with the various matters in regard to acquisition, disposal, distribution of such articles, fixation of the prices and other ancillary matters governing the sale and purchase of iron and steel and regulating their distribution and also maintaining the increased supplv and fair distribution thereof amongst the consumers. These provisions will be referred to at an appropriate place when I shall proceed to deal with the various contentions of the learned counsel for the petitioner.

3. The learned counsel for the petitioner has attacked the validity of the impugned order on the various grounds which mav 'be summarised as under:--

(1) The Central Government bv promulgating the Iron and Steel (Control) Order had exercised its whole power under Section 3 of the Act in regard to the iron and steel. It was, therefore, contended that no scope or room was left with the State Government to make any regulation, order or provision in respect of iron and steel. Accordingly the State Government was not competent to make any provision in regard to the exhibition of the prices of iron and steel Or for the sale of them as provided in clauses (3) and (5) of the impugned order respectively.

(2) The provisions as to display of list of prices under Clause (3) and so also the provision regarding the purchase and sale thereof are inconsistent with the provisions of the Iron and Steel (Control) Order and. therefore, they being repugnant to the Iron and Steel Control Order are illegal.

(3) The provisions contained in Clauses (3) and (5) of the impugned order in fact and in substance result in the control of prices and distribution of the same but no such power under Section 3(2)(c) of the Act was ever conferred uoon the State Government and consequently the said Cls. (3) and (5) of the impugned order are beyond the legislative competence of the State Government. In any event the powers of the State Government flow from the directions issued bv the Central Government under Section 3 of the Act. The Central Government has plenary powers, whereas the State Government's powers flow from the direction and delegation issued and made from time to time bv the Central Government and thev are subiect to the conditions and terms laid down in the directions so made and. therefore, as delegate it could not issue anv order which directly or indirectly leads to inconsistency between the provisions made by the Central Government and those made bv the State Government.

(4) That the requisite opinion, which is an essential condition precedent for exercising the powers under Section 3, was never formed bv the State Government, before promulgating the impugned order.

4. Before I pronounce on the contentions advanced before me I may first state the relevant law governing cases of this type.

5. It is well .to remember that the State Government while exercising powers conferred upon it bv the Central Government, acts as a delegate of the Central Government and its powers flow from the directions issued by the Central Government from time to time under Section 3 read with Section 5 of the Act. It cannot be gainsaid that the Central Government having plenary powers is statute making body of superior efficacy, whereas the State Government's powers being subject to the terms and conditions laid down bv the Central Government by its delegation are of inferior efficacy vis-avis the Central Government. Therefore, if powers in respect of a matter which have been exercised bv the principal then delegate has no power to make further provisions in respect of that matter. As a natural corollary, if the delegate exercises the Dowers in regard to matters which have already been covered bv the order of the Central Government then the law of the State Government will be taken to be inconsistent with' the provisions made bv the Central Government.

6. In order to see whether there is any inconsistency between the legislative provisions of the Central and the State Government, we have to remember the settled principles of law laid down by Nicholas in his Australian Constitution, 2nd Edition, page 303. which summarised as follows:--

'(1) There may be inconsistency in the actual terms of the competing statutes;

(2) Though there mav be no direct conflict, State law may be inoperative because the Commonwealth law or the award of the Commonwealth Court is intended to be a complete exhaustive Code; and

(3) Even in the absence of intention, a conflict mav arise when both State and the Commonwealth seek to exercise their powers over the same subject-matter.'

7. The above passage has been cited with approval (sic) (by the Supreme Court in Deep Chand v. State of U. P., AIR 1959 SC 648 and) in Tata Iron and Steel Co. Ltd. v. The State of Kerala, AIR 1972 Ker 97. The Supreme Court relying upon the above mentioned dictum laid down the following principles to test whether there is any inconsistency between the two legislative provisions.--

'(1) Whether there is direct conflict between the two provisions:

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State legislature; and

(3) Whether the law made bv Parliament and the law made by the State legislature occupy the same field.'

8. The position of law again came to be examined in State of Orissa v. Tul-loch and Co.. AIR 1964 SC 1284 wherein the Supreme Court has summarised the position thus:--

'The best of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy; for, if a competent legislature with a superior efficacy expressly or impliedly evinces bv its legislation an intention to cover the whole field, the enactment of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not bv a detailed comoarison of provisions of the two statutes but bv the mere existence of the two pieces of legislation.'

9. The provisions of the impugned order are, therefore, to be examined in the light of the oroposjtions of law settled bv the Supreme Court. For this purpose it will be necessary to have a glimpse at the provisions of the Iron and Steel (Control) Order and so also the provisions of the impugned order. I first of all venture to deal with the import, effect and the scope of the various provisions of the Iron and Steel (Control) Order. Clause (4) of the Iron and Steel Control Order provides for a quota certificate or permit to acquire any iron or steel. Clause (5) makes provisions for special or general order of the Controller for disposal of iron and steel. Clause (7) provides that iron or steel accmired under Clause (4) is not to be used except in accordance with the conditions subject to which it was acquired. Clause (8) enjoins upon the person disposing of iron and steel to obtain from the acquirer the authority under which it was disposed of. Then comes Clause (10) vhich confers powers on the Controller to issue directions for sale. Clause (11) in its turn prohibits removal without written permission from the Controller, whereas Clause (12) empowers the Controller (sic) require dealers to maintain such boo(sic) accounts and records as he mav dee(sic) necessary, and to call for their production and filing of returns. Clause (13) deals with the .powers of the Controller to issue directions in the matter of production. Clause (14) is an important one and consists of four sub-clauses. Sub-clause (1) of Clause (14) provides that the Controller may issue directions to maintain and exhibit a list of godowns in which the iron and steel is stocked. Sub-clause (2) authorises the Controller to issue directions to the purchaser or stock-holder that every purchaser or stock-holder when selling iron or steel would give the purchaser a memorandum containing specified particulars. Clause (14) (3) enjoins upon the dealer not to refuse to sell iron or steel without sufficient reason which he is authorised to sell. Sub-clause (4) of Clause (14) confers residuary powers on the Controller to issue general directions to such persons and Clause (15) empowers the Controller to fix prices. Further, Clause (16) empowers the Controller to control production and Clause (17) empowers the Central Government to give directions to the Controller and other authorities. Clauses (17-A) and (17-B) need also reference as, they had come to be added by the notification dated 29th March, 1971 of the Central Government. Under Clause (17-A) the Central Government is empowered to give directions to producers or stockists of anv category of iron and steel or to such other persons, as it considers necessary in regard to the matters referred to therein. Then comes Clause (17-B), a perusal of which will show that the Central Government is empowered to set UP from time to time such committees, bodies or authorities, as it may consider necessary for the purpose of giving effect to the provisions of Iron and Steel (Control) Order with respect to any category of iron or steel, whether such category is subject to or exempt from the operation of all or any such provisions. In regard to Clause (17-A) a pointed reference may be made that the Central Government is empowered under that clause to exempt any category of iron or steel from the operation of all or any of the provisions of the order. There are many other provisions in regard to the disposal of acquisition of iron or scrap of any category of iron and also ancillary miscellaneous provisions which need not be taken note of, as to my mind they are not necessary for the purpose of the disposal of the contentions raised before me.

10. It will be appropriate to advert here to the provisions of Sections 3. 4 and 5 of the Act. Section 3 is a very important section which empowers the Central Government to make provisions for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing anv essential commodity for the defence of India or the efficient conduct of military operations bv issuing order if it is of opinion that it is necessary or expedient so to do for achieving the objects specified in Section 3 of the Act. Section 3 of the Act comprises of six sub-sections wherein detailed provisions have been made for achieving the objects laid down in sub-sections (1) and (2) of Section 3 of the Act, Section 4 in its turn provides that an order made under Section 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions in regard to exercise of any such Dowers or the discharge of any such duties. Under Section 5 of the Act the Central Government may by notified order direct that the power to make orders under Section 3, shall in relation to such matters, and subject to such conditions, if any as may be specified in the direction, be exer-cisable also by,--

(a) such officer or authority subordinate to the Central Government; or

(b) such State Government or such officer or authority subordinate to a State Government:

as may be specified in the direction. Looking to the scope of Section 3 and objects specified in Section 3 and also the provisions of the Iron and Steel (Control) Order, one thing is evident that the Iron and Steel (Control) Order covers the Whole sphere of the legislative field delineated in sub-section (1) of Section 3 of the Act and the other provisions thereof. The Iron and Steel (Control) Order contains the provisions in regard to the maintenance or increase of supplies of iron and steel. It also embraces in it the provisions relating to equitable distribution and its availability at fair prices and other matters relevant to the objects specified in sub-section (1) of Section 3 of the Act. It is true that the Central Government has issued three notifications dated June 9, 1966, June 18. 1'966. and July 30, 1966. delegating its powers under Section 5 of the Act to the respective State Government Copies of the Notifications dated June 9. 1966, and June 18, 1966, have 'been placed on the record as Schedules B and C, but the copy of the Notification dated July 30, 1966. has not been referred either in its writ petition nor its copy has been placed on the record but the same is reproduced for ready reference.

'S. O. No. 2314. dated July 30. 1966.--In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 10 of 1955, the Central Government hereby directs--

(a) that the powers conferred on it bv Sub-section (1) of Section 3 of the said Act to make orders to pro-vide for the matters specified in Clause (c) of Sub-section (2) thereof shall, in relation to all commodities other than food stuffs and fertilisers (whether inorganic, organic or mixed), be exercisable also bv a State Government or, in relation to a Union Territory, bv the Administrator thereof, subject to the following conditions, name-ly.--

(i) that where the price at which any essential commodity mav be bought or sold is controlled bv or under any other law for the time being in force, no order shall be made in pursuance of the powers hereby delegated:

(ii) that where the price is not so controlled, no order shall be made in pursuance of the powers hereby delegated in respect of any essential commodity,--

(a) if the wholesale prices, or retail prices, or both, of such commodity have been fixed bv the manufacturers or producers thereof with the approval of the Central Government, except on the basis of such urices;

(b) in any other case, except with the prior concurrence of the Central Government;

(iii) that no order shall be issued in Pursuance of the powers hereby delegated if it is inconsistent with any order issued by the Central Government under the said Act.

(b) that all previous orders issued under Section 5 of the Essential Commodities Act in so far as thev relate to delegation of Powers under the provisions of Sections 3(1) and (2) (c) referred to in clause fa) above, except orders under the said Section 5 relating to fertilisers and the order (relating to food stuffs) of the Government of India in the Ministry of Food. Agriculture, Community Development and Co-operation fDepartment of Food) No. G. S. Rule 906. dated the 9th June, 1966 shall stand rescinded:-- ... ... ... ... ... ...'

Obviously June 9, 1966. notification has no relevance. Under it, powers are conferred upon the State Government in regard to Clauses (a), (b), (c), (d), (e), (f). (g), (h), (i). (ii) and (i) of Sub-section (2) of Section 3 in relation to foodstuffs only and. therefore, it is not relevant for my purpose. Under the notification dated June 9. 1966. powers have been conferred by the Central Government on the State Government to make order to provide for the matters specified in clauses (a), (b), (d), (e), ff). (g), (h), (i), fii) and (1) of Subsection (2) of Section 3. but no powers have been delegated for controlling the price, which is covered by Section 3(2)(c). Under Notification dated July 30, 1966, powers have been delegated in regard to Section 3(2)(c), which relates to the controlling the prices. There is in each of the notifications dated June 18, 1966. and July 30, 1966, a clause that no order shall be issued in pursuance of the power so delegated if it is in any wav inconsistent with any order issued bv the Central Government under the said Act. Looking to the provisions of the Iron and Steel (Control) Order, and Sections 3 and 5 of the Act and so also the relevant clauses of the notification dated 30-7-1966 forbidding the State Government to issue any inconsistent order, it has to be seen whether the validity of the impugned order can be sustained in face of the provisions referred to above. From the re'sume' of the provisions of the Iron and Steel Order, which I have earlier given, I am of the opinion that the Iron and Steel (Control) Order contains exhaustive code in regard to the matters specified in subsection (1) of Section 3 of the Act and, therefore, to my mind there can be no scope left for the State Government to legislate on the matters which are already covered by the provisions of the Iron, and Steel (Control) Order. Therefore, in view of the settled position of law, as stated earlier, the State Government is not competent to make any provisions in the face of those made bv the Central Government, as they will be deemed to be inconsistent. The inconsistency need not be direct. In the presence of the Iron and Steel (Control) Order, there is no room for the State Government to trench upon the field of law alreadv covered bv the Central Government. Viewed in this light, the validity of the provisions of the impugned order cannot be sustained in law and the impugned order deserves to be auashed on this score alone.

11. Mr. Shrimal, learned Additional Advocate General, argued that there is no specific provision made in regard to display of prices of iron and steel in the Iron and Steel (Control) Order and, therefore, despite the fact that the whole sphere of law in theorv mav be taken to be covered by the Iron and Steel (Control) Order, but in substance and in fact it has not been exploited. It is said that there may be powers under the Iron and Steel fControl) Order for fixation and regulation of the prices and also for the regulation and supply and also of the equitable distribution thereof, but that power had not been in fact exercised and until it is exercised there is always a room for the State Government to make the provisions for regulating in regard to that sphere of law which has not actually been exploited bv the orders of the Central Government. In support of his contention learned Additional Advocate General relied upon Deepchand v. State of U. P., AIR 1959 SC 648. This case has been noticed and distinguished in Ram Chandra Palai v. State of Orissa, AIR 1956 SC 298 and wherein the whree principles stated bv Nicholas have been reiterated. The same position of law appears to be endorsed bv the authority in AIR 1964 SC 1284. To my mind, therefore, there is no force in the contention of the learned Additional Advocate' General. The whole field of law relating to matters specified in Section 3 of the Act appears to be covered bv the Iron and Steel (Control) Order and even if it is taken for argument's sake that specific directions have not been issued in regard to the matters envisaged bv the Iron and Steel (Control) Order that would hardly make any difference. The power is there and is capable of being exercised at anv time as and when the Central Government so desires. I am, therefore, of opinion that no room or scope was left with the State Government to legislate in the sphere covered bv the Iron and Steel (Control) Order.

12. The matter does not rest here. The provisions of the impugned order are also in direct conflict in some respect with the provisions of the Iron and Steel (Control) Order itself. Learned Additional Advocate General has placed before me the notification dated April 29. 1967 in which all categories (including defectives and scrap of these categories) of iron and steel contained in the schedule to the Iron and Steel (Control) Order, - are exempted. This notification mav be extracted here--

'THE GAZETTE OF INDIA EXTRAORDINARYPART II-Section 3-sub-section (ii) Published byauthority.No. 267New Delhi, Monday.May, 1. 1967/Vaisakha.MINISTRY OF STEEL MINES ANDMETALS (DEPARTMENT OF IRON AND STEEL).NOTIFICATIONNEW DELHI, the 29th April, 1967. S. O. 1552/Ess. Comrn./Iron & Steel-2A--In exercise of the powers conferred bv clause 2-A of the Iron and Steel (Control) Order, 1956, as amended from time to time, the Central Government hereby exempts the categories of steel specified in the schedule annexed hereto from the provision contained in Clauses 4. 5, 15. 18, 20 and 27 of the said Order provided that all acquisitions, disposals and sales are made within India.

SCHEDULE

All categories (including defectives and scrap of these categories) of iron and steel contained in the Schedule to the Iron and Steel (Control) Order, 1956 as amended from time to time.

N. SC(I)-5(2)/67

N. P. Mathur, JT. SECRETARY'

What is the import of this notification has to be seen. It is obvious that the Govern-ment, while exempting the iron, and steel articles from the purview of the provisions contained in clauses 4, 5. Ib, 18. 20 and 27. has at ie^st retained its control over the prices and supply of the articles of the iron and steel. But if we peruse the provisions of Clauses (3) and (5) of the impugned order the same cannot be said in regard to it. Clause (3) enjoins upon the dealer to exhihit the list of prices conspicuously near about the entrance of the business premises. Clause (5) puts restrictions in the matter of the sale and purchase and it seeks to regulate the supplies, disposal and acquisition. It is obviously, therefore, ia conflict with the provisions of the Iron and Steel (Control) Order. Under Clause (5) it is incumbent upon the seller to sell the articles which are in stock with him. But as stated before me by the counsel for both the sides that under Clause 17-B a Joint Plant Committee and Steel Priority Committee have been constituted by the Central Government and this committee has issued directions from time to time in the matter of priorities in regard to the production and supplies of the iron and steel. Now if the provisions of Clause (5) are to be complied with, they arc bound to clash with the priorities provided in the directions of the Joint Plant Committee and that is bound to lead to the inconsistency of the impugned order with the provisions of the Iron and Steel (Control) Order. The validity of the impugned order, therefore, cannot be sustained on this ground also.

13. It was next contended on behalf of the petitioner that the impugned order purports to have been issued in the exercise of powers under Section 3 of the Act read with notification dated 9th June, 1966 and 18th June, 1966 only. The contention of the learned counsel for the petitioner in this behalf is that the powers under Section 3(2)(c) regarding the regulation or control of prices were never delegated to the State Government under the notification referred to in the preamble to the impugned order. It is said that the provisions contained in Clauses (3) and (5) of the impugned order in substance and in fact seek to control prices as envisaged by Section 3(2)(c). Such a legislation is beyond the competence of the State Government which was merely taking its powers from the directions of the Central Government from time to time. It is true that none of the notifications referred to in the preamble to the impugned order relate to the conferring of the powers under Section 3(2)(c). The question, therefore, immediately arises for consideration is whether the provisions as to the display of prices and sale of articles according to the prices mentioned in Clauses (3) and (5) respectively of the impugned order can be taken to regulate or control prices of essential commodities or distribution thereof The question regarding the import of Clause (3) came to be considered by the Kersla High Court in some of the cases, but I used refer only A. K. Abdulla v. State, AIR 1973 Ker 242 where it has been held that these provisions tend to control or regulate the prices. I also do not see any other import of these two provisions except that they tend to regulate supply and control prices of the essential commodity.

14. The learned Additional Advocate General then took shelter under the notification dated July 30, 1966, whereunder the powers under Section 3 (2)(c) have been conferred upon the State Government. Clause (iii) of that notification specifically provides that the order of the State Government shall in no way be inconsistent with the order of the Central Government. As stated earlier the Central Government exempted the iron and steel from the purview of the price control and, therefore, it is difficult to accept the contention of the learned Additional Advocate General. The provisions of Clauses (3) and (5) in relation to iron and steel are sus-tainable in law under the notification dated July 30, 1966. The argument that the impugned order is only of a supplementary nature and does not trench upon the field covered by the Iron and Steel (Control) Order, as the latter has not made any provision in regard to display of prices is also not acceptable. It cannot be denied that the Controller of ths Iron and Steel is empowered to issue any directions general or special which he deems necessary in regard to iron and steel under clause 14 (4) of the Iron and Steel (Control) Order. The power to issue direction for exhibition of list of iron and steel prices is also included in the power conferred on the Controller under Clouse 14 (4). Moreover the iron and steel has been exempted from the control of prices by the Central Government and, therefore, the power will be deemed to have been exercised by the Central Government leaving no room for the State Government to enjoin on the dealers of the iron and steel to display the list of prices etc. under Clause (3) of the impugned order. Viewed from any angle I am of the opinion that the impugned order cannot be sustained as the entire field of law relating to the relevant matter envisaged by Section 3 of the Act is covered by the Iron and Steel (Control) Order and further the provisions of the impugned order which seeks to control prices and regulate the supply of iron and steel by controlling the prices is inconsistent with the provisions of Iron and Steel (Control) Order and the orders of the Central Government made thereunder and, therefore, the order is ultra vires the Iron and Steel (Control) Order and also beyond the competence of the State Government,

15. The last contention of the learned counsel for the petitioner is that necessary opinion in regard to the essential conditions for formation of such opinion was not formed by the State Govt. before issuing the impugned order. It was contended by the learned counsel for the petitioner that the preamble to the impugned order does not make any averment that the necessary opinion, which is condition precedent for issuing of the order under Section 3 read with Sec. 5 of the Act was formed by the Slate Government. Learned counsel for the petitioner proceeded to argue that although it is not necessary to make recital in regard to the formation of the opinion in the preamble itself but the same has to be established by the Government when a challenge in this regard is thrown by the aggrieved person in his affidavit. According to the learned counsel for the petitioner, formation of such opinion at the relevant time has not been established by the State Government despite the fact that the petitioners have on oath challenged this fact. Reliance has been placed in this regard on Hamdard Dawakhana v. Union of India, AIR 1965 SC 1167. It is true that in the absence of any specific averment in the impugned order that the State Government had formed the necessary opinion, no presumption can be drawn that such opinion had been formed at the relevant time. I am supported in this view of mine by the above referred case. It has, therefore, to be seen whether the State Government had shown that the necessary opinion had been formed at the relevant time. The learned Additional Advocate General had joined the controversy on this point by asserting that the requisite opinion as contemplated by Section 3 of the Act, had been formed by the State Government. He has placed before me the minutes of a committee, which has considered certain steps for introducing certain reforms in various spheres in relation to the supply of the essential articles and to check adulteration therein. This committee had also recommended the display of prices order on the lines of the Delhi Display and Prices Order. It is stated that on these recommendations the State Government had sent the impugned order to the Central Government and it should therefore be inferred that the committee's recommendation should have been submitted to the State Government who must have formed the requisite opinion on the basis of the recommendation of the committee and thereafter sent the order for the approval of the Central Government. Unfortunately the materials produced in this connection on the side of the State are not complete. There is no document to show that the Government had taken note of these recommendations although Mr. Shrimal says that there is such a document in the records of the Government which he could not place on the record as the Officer Incharge did not bring the complete record. There appears to be some lacuna somewhere as the order had been sent for the concurrence of the Central Government and before sending for its concurrence, the Government might have applied its mind but in the absence of relevant record it is difficult to give a categorical finding on this point. The learned Additional Advocate General contended that the fact of formation of opinion is implicit from the fact that the impugned order -was sent for the concurrence of the Central Government and the same had accorded its concurrence and, therefore, there is no reason to hold that the necessary opinion was not formed. He has relied on C. Lingam v. Government of India, AIR 1971 SC 474. Mr Hastimal Pareek tried to distinguish this authority on the ground that there no specific challenge was given on the ground that the requisite opinion was not formed and where no such challenge is given, the fact may be implied but once the challenge had been given then it cannot be said impliedly that the State Government had formed the opinion. Having given my earnest consideration, I think that the dictum of law laid down in AIR 1965 SC 1167 is directly in point. However, in view of laconic nature of materials placed before me, I am not inclined to give my firm opinion on the point.

16. In the result the writ petitions are accepted; the impugned order, so far as it relates to the iron and steel commodities, is quashed as being void. The seizure memo so far it relates to iron and steel articles is hereby quashed and such articles shall be released forthwith. Respondents are further directed not to take any action in pursuance of the impugned order against the petitioners in respective cases. There shall be no order as to costs.


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