- (1.) The appeal has been referred to a bench of three Judges because the two learned Judges who earlier heard it were of the opinion that the decision of this court in State of U. P. and Ors. v. Janta In. Udyog and Ors. 1991 Supp. (2 SCC 506 required reconsideration.
(2.) Under appeal is the order of a Division of the High court at Allahabad which, following an earlier judgment of the High court, quashed the provisions of the U. P. Coal Control Order, 1977 insofar as it applied to persons manufacturing bricks with the aid of slack coal and to brick kilns run by them for such manufacture of bricks. The order was passed on writ petitions filed by the manufacturers of bricks who used slack coal in their brick kilns.
(3.) The U. P. Coal Control Order ("the said Order") was issued in exercise of powers conferred by section 3 of the Essential Commodities Act, 1955. It defined 'bricks' to mean bricks or tiles produced with the aid of slack coal but did not include fire bricks or refractory bricks and tiles. A 'brick kiln' meant any kiln in which bricks were manufactured with the aid of coal and the premises appurtenant thereto. Paragraph 4 of the said Order dealt with licensing thereunder; it said that no person could import coal or carry on business as a coal agent or coal depot-holder or run a brick kiln with coal except under and in accordance with the terms and conditions of a licence issued under the said Order. Paragraph 5 dealt with the issue of licences and sub-paragraph (b) thereof said that every licence granted or renewed under the said Order, inter alia, in Form D for running a brick kiln with slack coal would be subject to the conditions specified therein and such other conditions as the State Coal Controller or District Magistrate might prescribe from time to time. Paragraph 8 of the said Order dealt the directions regarding import, purchase, sale, storage and distribution; it required the licencee of a brick kiln under the said Order to comply with any direction that might be issued to him from time to time by the State Coal Controller or the District Magistrate, inter alia, in respect of the sale and distribution of bricks. Sub-para (iv) of paragraph 8 and the Note thereunder read thus: " (iv) A licensee in Form 'd' or a person running a brick kiln with coal - (a) shall not utilise or cause to be utilised coat allotted to him or in stock with him for a purpose other than burning bricks and shall not divert or transfer any such coal to any other person or any other brick kiln, even though owned by him, except under a written authority from the District Magistrate; (b) shall sell the whole or a specified part of his stock of bricks produced with the aid of slack coal to a person as may be specified in a permit issued in that behalf of the District Magistrate and addressed to him; (c) shall manufacture with the aid of slack coal bricks of such sizes as may be fixed by the District Magistrate and shall further sell them at such prices as may be fixed by the District Magistrate for different sizes and classes of bricks. Note.- For the purpose of this sub- clause, the District Magistrate may, subject to any direction of the State government by general or special order fix - (a) the sizes of which bricks with the aid of slack coal are to be manufactured; and (b) the maximum price at which different classes of such bricks may be sold to the public in general and in bulk to construction agencies in the public section particular by any person, such price, being based on the estimated cost of, manufacture of such bricks plus reasonable margin of profit thereon : Provided that different prices may be fixed in respect of different classes and sizes of such bricks for different localities in the district having regard to different circumstances pertaining thereto. " Para 12 of the said Order dealt with the export of coal and bricks and stated that no person could export, cause to be exported or offer for export coal or bricks produced with the aid of slack coal from within the State without obtaining the prior written permission of the State Coal Controller. Form D in the said Order prescribed the form of the licence for running a brick kiln. Clause (4 of the conditions thereof required the licencee to comply with general or special directions issued by the State Coal Controller or the licensing authority from time to time with regard to, inter alia, the disposal and sale of any stock of bricks.;