(1) The petitioner is the proprietor of the Karaikal Castings and Rolling Mills and the Karaikal Metal Industries at Karaikal, in the Union territory of Pondicherry. He obtained a licence under the Non-Ferrous Metals Control Order 1958, an order issued by the Central Government in exercise of the powers conferred upon it under S. 3 of the Essential Commodities Act, 1955. Under the terms of the licence, he had to comply with certain conditions regarding the stocking and disposal of several non-ferrous metals which are specified in the Non-Ferrous Metals Control Order, 1958. The authorities had reason to believe that he had not disposed of surplus stocks in the manner required under the licence. So the Government of Pondicherry through its Secretary, Planning and Development department., issued a notice to the petitioner on 17-4-1964 as to why action should not be taken against him for violation of the terms of the licence issued under the Non-Ferrous Metals Control Order and why the licence issued to him should not be cancelled.
The petitioner has filed the present writ petition praying for the issue of a writ of prohibition directing the respondent, the Government of Pondicherry, through its Secretary, Planning and Development Department not to take further proceedings under the show cause notice aforesaid. The grounds on which the petitioner seeks reliefs are:
1. The provision of the Non-Ferrous Metals Control Order has not been extended to the territory of Pondicherry in accordance with the S. 4(2) clause (a) of the Foreign Jurisdiction Act;
2. Sec. 4(A) of the Non-Ferrous Metals Control Order 198 even assuming that it applies to the territory of Pondicherry envisages action to be taken only against an importer. But the petitioner is not such an importer.
(3) The Non-Ferrous Metals Control Order now in force applies only to copper and does not extend to other Metals like Aluminium, tin, lead and zinc. Consequently the inclusion of the aforesaid metals in the action proposed to be taken against the petitioner under the notice is not proper.
(2) The respondent filed a counter affidavit alleging that investigation disclosed that the petitioner had pledged surplus stocks of the various metals specified in the notice with a banker at Madras and when the banker was contacted, some of these articles were found to have been disposed of. It is that circumstance that led to the notice issued to the petitioner. The allegations in the petition regarding want of jurisdiction were denied.
(3) Taking up first, the last of the grounds mentioned above, namely, that the Non-Ferrous Metals Control Order will not apply to metals other than copper, a reference may be made to the definitions of the Non-Ferrous Metals Control Order 1958 (Central Rules & Notifications 1958). Sub-section 2 of S. 1 states that it shall apply in the first instance to imported copper, but the Central Government may be notification, in the Official Gazette, direct that it shall apply to any other imported non-ferrous metal. Learned Government Pleader appearing for the Pondicherry Government does not dispute the contention of the petitioner that such extension has not been made to the case of metals other than copper. To this extent, the contention of the petitioner is correct and the enquiry will have to be confined to the alleged contravention of the terms of the licence only in regard to the metal copper.
(4) Taking up next the first ground, the contention of the learned Counsel for the petitioner is that while the Essential Commodities Act of 1955 (hereinafter called the Act) has been extended to Pondicherry by a Notification under S. 4(2)(a) of the Foreign Jurisdiction Act, no similar order had been passed under the aforesaid Act extending in terms the provisions of the Non-Ferrous Metals Control Order, 1958 issued under S. 3 of the Act. According to the learned counsel for the petitioner, every time an order is passed or a rule is framed under the appropriate provisions of the Act, a separate order or notification should be issued simultaneously to make such orders applicable to Pondicherry territory which, at the relevant period, was administered by the Central Government under the Foreign Jurisdiction Act. With this proposition it is not possible to agree. The learned Government Pleader has submitted, and in my view rightly, that the orders issued under the Essential Supplies Act have got the same force as the Act itself, and forms part of the Act. Therefore, it will be unnecessary to require separate Notification under the Foreign Jurisdiction Act every time such orders are promulgated or issued by the Central Government under the powers conterred upon it under the Essential Supplies Commodities Act of 1955. This contention has got the support of authority in Ramananda v. State : AIR1951Cal120 (FB). Therein Harris C. J., dealt with a case which arose under the Essential Supplies (Temporary Powers) Act 1946 and at page 125 he observed:
'These orders made under powers given in S. 3 will override existing law because they are orders validly made under S. 3 of the Act. They are really part of the enactment' and impliedly repeal any existing law to the contrary (italics (here in ' ') mine)'.
Likewise a later decision reported in Mustafa v. State of Mysore 1963 1 Cri. LJ 372 (Madras), the Mysore High Court dealt with a prosecution under the Sugar Control Order. At page 376 of the report, the judgment contains, the observation:
'It cannot be disputed that an order or rule made by virtue of the power conferred on such authority has to be considered as an integral part of such enactment'.
It is clear that the orders issued under the Essential Commodities Act are part of the Act itself and, in my opinion, no fresh notification will be necessary every time such an order is issued to make them applicable to the Pondicherry territory to which the Act itself has been extended. The learned Government Pleader submits that the appellant is a licencee under the aforesaid order, that he had received supplies of the various metals from the concerned authorities by virtue of the licence, and that having agreed to abide by the terms of the licence it is not open to him to contend that the order under which he was granted a licence was passed without jurisdiction. However, I do not rely on this submission for giving my finding under the first point, because even assuming that the appellant is a licence under the order, it will be open to him to contend that the order is one passed without jurisdiction, as there cannot be any estoppel in such a case.
(5) The final contention of the petitioner is that the Act will apply to importers. This contention overlooks the amendment of the Non-Ferrous Metals Control Order introduced on 4-12-1959 whereby the word 'Importer' has been deleted in the several provisions of the the earlier orders and the word 'A person' is substituted. After such amendment, it will not be open to the petitioner to contend that the order applies only to importers. The petitioner got his licence in 1961 when the amended section was in force. This contention therefore has no substance.
(6) In the result, the writ petition is allowed, in part in so far as the enquiry is directed to be confined to the alleged contravention of the order in regard to copper. There will be a prohibition by a writ for proceeding with the proposed enquiry in regard to other Non-ferrous Metals mentioned in the notice, for the reason that the control order has been extended only to copper and not to the other non-ferrous metals. The petition is ordered to the extent mentioned above. No costs.
(7) Order accordingly.