K.B.Srivastava, J. - (1.) THIS spe cial appeal arises out of the fallowing facts:- Under sub-section (1) of Section 3 of the Essential Commodities Act. 1955 hereinafter referred to as the Act), 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. Under sub-sec tion (2) of this section without prejudice, to the generality of the powers confer red by sub-section (1) an order made there under may provide: (a) ............; (b) ............; (c) ............; (d) for regulating by licences, per mits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption, of any essential commodity; (e) ............; (f) ............; (g) ............; (h) ............; (i) ............; (ii) ............; (.1) ............; Under clause (b) of Section 5, the Cen tral 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 direc tion, be exercisable also by such State Government as may be specified in the direction. The Central Government acted under Section 5 (b) and on November 15, 1958, issued the following notification:- "In exercise of the powers conferred by Section 5 of the Essential Commodi ties Act. 1955 (10 of 1955) the Central Government hereby directs- (a) that the powers conferred on It by sub-section (1) of Section 3 of the said Act to make orders to provide for the matters specified in clauses (a), (b). (c), (d). (e), (f). (h), (i). (ii), and (.i) of subsection (2) thereof shall. In relation M food-stuffs, be exercisable also by a State Government ............"
(2.) UNDER this delegated power, the State Government of U. P. issued the U. P. Food-grains (Restrictions on Hoarding) Order. 1966 whereby a licen see in Form B under the U. P. Food-grains Dealers Licensing Order, 196 could hold in stock up to 1000 quintals o one kind of grain and up to a total quan tity of 2500 quintals of all kinds of grain, This order was modified by the U. P Foodgrains (Restrictions on Hoarding (Amendment) Order. 1967 which came into force on February 1, 1967. Under the amended order, a licensee in Form B could hold in stock up to 250 quintals only of a particular kind of grain and up to a total quantity of 1000 quintals only oi all kinds of grain. The respondent Suraibhan Pandey has whole-sale grain business at Katarniya Ghat in the district of Bah-raich and holds a licence in Form B unde) the U. P. Foodgrains Dealers Licensing Order, 1964. The Sub-Divisional Officer-cum-Food Officer, Nanpara, appellan; No. 3, raided the business premises of the respondent on March 15. 1967 and find ing the stock of all kinds of grains in ex cess of 1000 quintals, seized the same and made a first information report at P. S. Sujauli which ultimately resulted in the prosecution of the respondent be fore the Sub-Divisional Magistrate, Nan-para, appellant No. 2, under Section 7 of the Act for contravention of the U. P. Foodgrains (Restrictions on Hoarding) Order. 1967 passed under Section 3 of the Act. It is in these circumstances that he instituted writ petition No. 631 of 1966 against the aforesaid two officers and the State of U. P. (appellant No. 1) praying for the issue of a writ of certiorari quash ing the U. P. Foodgrains (Restrictions on Hoarding) Order, 1966. as amended in 1967 (hereinafter referred to as the im pugned order), and the charges under Sections 3/7 of the Act and for the issue of a writ of prohibition forbidding ap pellant No. 2 to continue the criminal' prosecution, and for a writ of mand_a-mus commanding him to release the seiz ed stock, inter alia, on the ground that the impugned order was beyond the scope of the delegated authority of the State Government and as such was illegal and void.
(3.) THE appellants joined issues by a counter-affidavit wherein they took the plea that the impugned order falls fairly and squarely within the ambit and scope of the authority delegated under clause (d) of sub-section (2) of Section 3 of the Act. The alternative case taken by them was that if for any reason it be found that the order is not covered by clause (d). it would be covered by sub-section (11 of Section 3 and the Central Govern ment had not only had the power to de legate its powers under sub-section (1) but it had also actually delegated it and. therefore, the impugned order is not open to challenge.;