- (1.) THE petitioners in this and the connected writ petitions are carrying on the business of manufacturing bricks using slack coal as fuel in their brick-kilns. Under the provisions of the U. P. Coal Control Order, 1977 (hereinafter referred to as the Coal Control Order) issued under section 3 of the Essential Commodities Act they are required to obtain a licence for running brick-kilns. THE petitioners had been obtaining such licences in the past and in some cases they have also sought renewal of their licences. Some of the petitioners, however, applied for the grant or renewal of the licence but their applications had not been disposed of by the time they filed these petitions. THE Supply Inspector attached to the office of the District Supply Officer who was responsible for administering the provisions of the aforesaid Coal Control Order made inspection of certain brick-kilns belonging to the petitioners and found various irregularities being committed. In most cases the irregularity committed was that the petitioners had started fining bricks in their brick-kilns with the help of slack coal but had not obtained or renewed ther licences. Some stocks of slack coal were also found at the site of the brick-kilns and accordingly they were sought to be prosecuted far contravention of the provisions of the Coal Control Order read with sections 3/7 of the Essential Commodities Act. First Information reports had been lodged against the petitioners and in some cases arrests were also made and further arrests were apprehended when these petitioners came to the court.
(2.) THEY have challenged the validity of the Coal Control Order and the competence of the State Government to issue any such Order in exercise of the powers delegated to it by the Central Government under the Essential Commodities Act in so far as it was applicable to persons carrying on the business of manufacturing bricks with slack coal. The provisions were said to be ultra vires and powers of the State Government on the ground that bricks had not been notified as an essential commodity under the relevant provisions of the Essential Commodities Act nor were bricks otherwise enumerated as an essential commodity within the meaning of the term. It has been prayed that the first information reports lodged against the petitioners and the consequent proceedings started thereon be also quashed and so also be quashed the Coal Control Order itself. In some of the petitions a further prayer was added for issue of a directions in the nature of mandamus directing the opposite parties not to prosecute the petitioners and not to confiscate the bricks, coal or other property lying at the brick-kilns. As common questions of law and fact are involved in all these petitions, they have been heard as a bunch of petitions and we propose to dispose them of by this common judgment. Factual averments apart and which will be noticed later at the appro- priate stage, the common questions that have been raised in these petitions relate to the competence of the State Government to issue such an Order for regulating the trade of manufacturing bricks in the brick-kilns on the ground that brick is not an essential commodity as defined in section 2 (a) of the Essential Commodities Act and even under the residuary clause (xi) this commodity has not been notified as an essential commodity by the Central Government. The contention was that even the Central Government could not have made an Order regulating the trade in bricks and consequently the State Government in exercise of the delegated powers also could not issue such an Order. Before referring to the various averments made on behalf of the State in the counter- affidavit it may be mentioned at this stage that the main ground on which these petitions were opposed by the State is that the Coal Control Order is directed to regulate the distribution, supply and trade in coal rather than bricks as such and that it is incidentally that the bricks and the brick-kilns have also become the subject-matter of this Order because these kilns use slack coal in the manufacture of bricks. In order, therefore, to securing the maintenance of supply of coal and its equitable distribution and availability that the Coal Control Order has been promulgated. Since the petitioners had either not obtained the licence or had merely made application for the purpose but licences were not issued or renewed and yet they had started manufacturing bricks, they were, according to the opposite parties, rightly being prosecuted for contravention of the provisions of the aforesaid Order. In order to appreciate the real controversy it would be appropriate to refer to certain provisions of the Coal Control Order. The preamble of the Order runs like this (Emphasis at relevant places has been supplied by us). " WHEREAS, the State Government is of opinion that it is necessary and expedient so to do for securing the maintenance of supplies and services essential to the life of the community and for securing the equitable distribution and availability of coal and bricks produced with the aid of slack coal at fair prices. The terms 'bricks', 'brick-kiln,' 'coal,' 'dealer' and 'licencee' have been defined in clause 2 of the Coal Control Order as below : "(a) " Bricks" means any bricks or tiles produced with the aid of slack coal but does not include fire-bricks or refractory brick and tiles. (b) "Brick-Kiln" means any kiln at which; bricks are manufactured with coal and the premises appurtenant thereto. (c) " Coal" means coal, coke and other derivatives and includes slack coal, steam coal, soft coke, hard coke or dust coal of various grades but does not include cinder and ashes and products and by-products of coal. (d) "Dealer" means a person carrying on as a principal or agent, whether separately or in conjuction with some other business, the business of import, purchase or storage for sale and sale of coal, in whole-sale and granted a licence in From 'B' and commonly known and herein referred to as "Coal agent" or in retail and granted a licence in Form 'C and commonly called and referred to herein as 'Coal Depot Holder' but does not include a consumer who imports, purchases or stores coal for his own use. (i) " Licence" means a person holding a licence under the provisions of this Order in Form 'B' or Form 'C or Form 'D' appended to this Order. "
(3.) THE relevant portions of Clauses 3, 4, 5 and 6 may also be noticed in this connection. THEy are like this ; " 3. (B). THE provisions of clauses 4 to 10, 14 and 16 hereof, shall not apply to steam coal and hard coke for industrial consumption." " 4. No person shall import coal and carry on business as a coal agent, carry on business as a coal depot holder or run brick kiln with coal except under and in accordance with the terms and conditions of a licence issued under this Order." " 5. (a) Every application for the grant or renewal of a wholesale or retail licence or for running a brick kiln with slack coal shall be made to the licensing authority in Form 'A' appended to this Order. (b) Every licence granted or renewed under this Order shall be in Form 'B' in the case of Coal agent, in From 'C' in case of Coal Depot Holder, and in Form 'D' for running a brick-kiln with slack coal and shall be subject to tie conditions specified therein and such other conditions as the State Coal Controller or District Magistrate may prescribe from time to time. (e) THE Licencing Authority may, for reasons to be recorded in writing, refuse to grant or renew or issue a duplicate licence. (g) A separate licence shall be obtained by a Coal Agent for each district and by a Coal Depot Holder or brick kiln owner for each separate place of business or brick-kiln. "8. (i). A. Licencee under this Order (b) shall comply with any direction that may be issued to him from time to time by the State Cod Controller or the District Magistrate in regard to import, purchase, sale, storage or distribution of coal or for running a brick kiln with coal and sale and distribution of bricks as applicable to him. (iv) A licensee in Form 'D' or person running a brick kiln with coal. (a) shall not utilise or cause to be utilised coal 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 by 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 constructions agencies in the public sector in 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. There is no dispute on the point that bricks as such has not been specified as an essential commodity nor has it been declared as such by a notified order by the Central Government under clause (xi) of section 2 (a) of the Essential Commodities Act. The stand taken by the State is that with a view to regulate the distribution, supply and availability of coal at fair price the Coal Control Order also brings within its fold the manufacture of bricks with coal at the brick-kilns. A reference to the preamble of the Coal Control Order as reproduced above will indicate; that it was issued not only for maintenance of supplies and securing equitable distribution and availability at fair price of coal but also of bricks produced with the aid of slack coal. Thus even in respect of bricks the purpose behind the issuance of the Coal Control Order was maintenance of supplies and securing equitable distribution and availability of bricks at fair price. Obviously, this could not be done in exercise of the powers under section 3 of the Essential Commodities Act. The State cannot be heard to say that the provisions of the Coal Control Order are directed merely to regulate equitable distribution etc. of coal because all these provisions regarding distribution and restrictions on import, export, and even on the fixation of prices of bricks have been made applicable to bricks as they are applicable to coal. Bricks in the context means those prepared with the aid of slack coal. The brick-kiln owners are required to obtain licence in Form D after making applications in Form A. Clause 4 indicates that no person can carry on the business of running a brick-kiln with coal except under and in accordance with, the terms and conditions of a licence issued in Form D. Now the Form D appended to the Coal Control Order lay down certain conditions of licence which have to be observed and the contravention whereof will render a person liable for prosecution and penalty under clause 15. Condition (A) of the licence prescribes that the licences shall comply with any general or special directions issued by the State Coal Controller or the Licensing Authority from time to time under that order in regard to the disposal or sale of any, stock of coal or bricks held by him. Condition (5) of the licence lays down that contravention of any of the conditions thereof shall render the licence liable to cancellation besides any other action being taken against the licensee. The power to issue directions is available to the State Coal Controller and the Licensing Authority under clause 8 of the Coal Control Order. Then clause 8 as already extracted above will indicate that this power is available for issuing directions in regard to import, purchase, sale, storage or distribution of coal or for running a brick-kiln with coal and sale and distribution of bricks. Clause 8 also provides that a licensee of brick-kiln in Form D shall be liable to 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 by the District Magistrate. Directions can also be issued with regard to the size of the bricks and fixation of price at which bricks can be sold. It will therefore, appear from the provisions aforesaid that almost full control over the trade of brides made with the aid of slack coal has been contemplated under the Coal Control Order. The contention of the State that the trade of manufacturing bricks was not sought to be regulated by the aforesaid Order cannot be accepted because even if a full- fledged separate Order was to be issued in respect of the bricks, if the same had been declared an essential commodity, possibly no more provisions were needed to regulate the distribution sale and price etc. of the bricks. Obviously such provisions could not be made in exercise of the powers under section 3 of the Essential Commodities Act as bricks had not been declared as an essential commodity. What could not done directly by the State Government cannot also be allowed to be done indirectly under the garb of Coal Control Order.;