Mohan Lal Singhal, J. - (1.) THIS is a writ petition under Article 226 of the Constitution of India for issuance of writ of mandamus directing the respondents not to compel the petitioners to obtain licence or comply with the provisions of the U.P. Coal Control Order, 1977. The petitioners twelve in number herein, are running brick -kiln in the district Aligarh. They bring coal by road from collieries in the State of Bihar and sometime they also purchase it locally. They are consumers of coal, and as such, they are not to obtain licence under the U.P. Coal Control Order, 1977. The petitioners have further alleged that respondent No. 1 State of U.P. enacted U.P. Coal Control Order, 1977 under the Essential Commodities Act, 1955, requiring the brick -kiln owners to obtain licence and to maintain stock etc. of the coal. The brick is not an essential commodity, the provisions of the U.P. Coal Control Order, 1977 are not applicable to the petitioners. Some of the brick -kiln owners having grievances against the enactment of the U.P. Coal Control Order, 1977, filed several writ petitions before the Lucknow Bench of the Court, the leading case was Writ Petition No. 532 of 1983: M/s. Soni Bricks Trading Company v. State of U.P. and others : 1984 (10) AWC 267. By the judgment dated 22.12.1983, rendered in the said writ petition, Division Bench of the Court allowed the petitions holding that the brick was not essential commodity, therefore, the provisions of the U.P. Coal Control Order, 1977 do not apply to the case of brick -kiln. Inspite of the verdict in the aforesaid writ petition, the respondents are coercing the petitioners to obtain licence under the U.P. Coal Control Order, 1977, to maintain stock etc. under the provisions of the Control Order on threat of prosecution under the provisions of Section 3/7 of the Essential Commodities Act, 1955. The petitioners are not coal depot holders, they consume slack coal and not steam coal, hence the provisions of U.P. Coal Control Order, 1977 are not applicable to the brick -kiln owners, including the petitioners. With these averments the petitioners prayed for the relief deluded above.
(2.) ON behalf of the respondents, counter affidavit has been filed resisting the petition and the relief claimed therein by the petitioners. The contention of the respondents is that the coal is an essential commodity, mentioned at Sl. No. 1(a)(ii) of the Essential Commodities Act, 1955, and as such, the provisions of the U.P. Coal Control Order, 1977 are fully applicable to the brick -kiln owners, including the petitioners. Clause 4 of the U.P. Coal Control Order, 1977 envisages "no person shall import coal or run a brick -kiln with coal except under and in accordance with the terms and conditions of the licence issued under this Order". Against the verdict of this Court, rendered in M/s. Soni Bricks Trading Company's case, respondents have preferred Special Leave Petition, which is pending for disposal before the Apex Court. The petitioners are not entitled to the relief prayed for. We have heard the learned counsel for the petitioners and the learned Standing Counsel for the State, and have gone through the record of the case.
(3.) THE present case is fully covered by the decision of the Division Bench of this Court in M/s. Soni Bricks Trading Company v. State of U.P. and others (supra), relied upon by the learned counsel for the petitioners. In that case the Division Bench of this Court held that the Coal Control Order is ultra vires the powers of the State Government in so far as it regulates the trade in bricks which is not an essential commodity. The Coal Control Order so far as it relates to dealers in coal and lays down provisions to regulate the distribution, import, export and price etc. of coal is severable as regards its applications to brick -kiln owners who manufacture bricks with the aid of slack coal. That being so the entire Coal Control Order cannot be struck down. It shall continue to apply to coal dealers and can also regulate other matters relating to supply and availability of coal but as regards its application to persons manufacturing bricks with slack coal at the brick -kilns, the Coal Control Order deserves to be struck down. Even if any matter relating to bricks required to be regulated, it could be done through an act of Legislature or an Ordinance but any such Order issued in exercise of the delegated powers could not travel beyond the limits of such powers which have to be confined, to the ambit of Essential Commodities Act and which power is not available in respect of bricks, it being not an essential commodity. That being so, the Coal Control Order in so far as it relates to regulating the manufacture, distribution, fixation of price etc. in respect of bricks cannot be upheld and deserves to be struck down to that extent.;