- (1.) The ninety-one writ petitions before us for delivery of our reasons in support of our order dated 23 Nov. 1977 dismissing them, raised a common question of the validity of an order (hereinafter referred to as the Control Order), passed on 30th September, 1977 by the Ministry of Civil Supplies and Co-operation of the Government of India, which runs as follows. "ORDER New Delhi, the 30th September, 1977 S. O. WHEREAS the Central Government is of opinion that it is necessary and expedient so to do for securing equitable distribution and availability at fair prices, of mustard oil. NOW, THEREFORE, in exercise of the powers conferred by S.3 of the Essential Commodities Act. 1955 (10 of 1955), the Central Government hereby makes the following orders namely; 1. Short title, extent and commencement -(1) This order may be called the Mustard Oil (Price Control) Order, 1977. (2). It extends to the whole of India. (3) It shall come into force at once.
(2.) Definition : - In this Order, "dealer" means a person engaged in the business of the purchase, sale or storage for sale of mustard oil.
(3.) Price at which a dealer may sell. No dealer shall, either by himself or by any person on his behalf, sell or offer to sell any mustard oil at a retail price exceeding Rupees 10/- per kilogram, exclusive of the cost of container but inclusive of taxes. Sd/- (T. Balakrishnan), Joint Secretary to the Govt. of India. (File No. 206 (16)/77 ECR)". 2. The Control Order was passed in exercise of the powers conferred upon the Central Government by S. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act'). This provision lays down: "S. 3 (1) 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, or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide. a) xxx xxx xxx b) xxx xxx xxx c) for controlling the price of which any essential commodity may be bought or sold d) for regulating by licences, permits or otherwise the storage, transport, distribution. disposal, acquisition, use or consumption of, any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; (f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity"; (a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or. (b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the matter. Explanation 1.- An order made under this clause in relation to foodgrains, edible oil - seeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of the, producers. Explanation 2 - For the purpose of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;" We are not concerned here with other provisions of Section 3 (2). 3. Section 3 (3), which will be relevant for the purposes of interpretation, runs as follows: "3 (3) Where any person sells any essential commodity in compliance with an order made with reference to cl. (f) of sub-sec. (2), there shall be paid to him the price therefor as hereinafter provided : - (a) Where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price; (b) Where no such agreement can be reached, the price calculated with reference to the controlled price, if any; (c) Where neither Cl. (a) nor Cl. (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale." Again, sub-section (3-A) lays down : "(3A) (i) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices, or preventing the boarding, of any foodstuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with an order made with reference to Cl. (f) of sub-section (2) shall be regulated in accordance with the provisions of the sub-section. (ii) Any notification issued under this sub-section shall remain in force for such period not exceeding three months as may be specified in the notification. (iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to Cl. (f) of sub- section (2), there shall be paid to the seller as the price therefor- (a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price; (b) where no such agreement can he reached, the price calculated with reference to the controlled price, if any; (c) Where neither clause (a) nor cl. (b) applies, the price calculated with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification. (iv) For the purpose of sub-cl. (c) of Cl. (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighboring locality, and the average market rate so determined shall be final and shall not be called in question in any court".;