- (1.) THIS order will dispose of four civil writ petitions, Nos. 2385, 2386, 2396 and 2514 of 1978, involving a similar point.
(2.) THE petitioners in all these petitions are dealers in milk in the State of Haryana. They have challenged the legality of Notification NO. G. S. R. 57/c. A. 10/55/s. 3/78, dated May 24, 1978, (hereinafter referred to as the Notification), issued by the Government of Haryana under S. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act), prohibiting the use of milk for the manufacture of cream etc. , as also its manufacture of cream etc. , as also its export from the State of Haryana, as detailed 1978, to July 14, 1978. According to the petitioners, the Notification is ultra vires the authority of the State government and further liable to be struck down because it offends their fundamental rights under Arts. 14 and 19 of the Constitution of India. The Notification is also claimed to be bad being violative of Art. 301 of the Constitution. The State of Haryana, in their written statement, denied that the Notification was ultra vires their authority inasmuch as the Central Government had made appropriate delegation to them for that purpose under S. 5 of the Act. It was also denied that the Notification conflicts with the fundamental rights of the petitioners under Arts. 14 and 19 of the Constitution or is violative of Art. 301.
(3.) THE Act was enacted by Parliament and S. 3 thereof reads:- " 3. Powers to control production, supply, distribution etc. of essential commodities. (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 operation 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* (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity; (g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs or cotton textiles which, in the opinion of the authority making the order, are, or if unregulated are likely to be, detrimental to the public interest; . " Section 5 of the Act deals with the delegation of powers and it reads:- "5. Delegation of powers. The Central Government may, by notified order, direct that the power to make orders or issue notification under S. 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-- (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government, as may be specified in the direction. " It is evident that apart from the Central Government, who is competent to issue orders under S. 3 of the Act, it can delegate its powers for that purpose to the State Government. The Notification dated May 24, 1978, has been issued by the Government of Haryana under S. 3 of the Act, exercising delegated powers from the Central Government. As the main attack is against the Notification dated May 24, 1978, it will be advantageous to reproduce below its relevant parts:- "no. G. S. R. 57/c. A. 10/55/s. 3/78;--Whereas the Governor of Haryana is of the opinion that it is necessary so to do for the maintenance and increase of supplies and distribution in the State of Haryana of milk in fluid form, a commodity essential to the life of community. Now, therefore, in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1955 (Parliament Act 10 of 1955), read with Government of India, Ministry of Food and Agriculture, Order No. G. S. R. 1111, dated the 24th July, 1967, and all other powers enabling him in this behalf the Governor of Haryana, with the prior concurrence of the Central Government, hereby makes the following order, namely:- 1. "short title, extent and commencement:- (1) This order may be called the Haryana Milk and Milk Products Control Order, 1978. (2) It extends to the whole of the State of Haryana. (3) It shall come into force at once and shall cease to be operative at the expiry of the 14th day of July, 1978, except as regards, things done or omitted to be done before such cessation of operation; 2. * * * * 3. Prohibition of manufacture, sale, service, supply and export of milk and milk productsno person shall (a) use milk of any kind for the manufacture of cream, casein, skimmed milk, khoa, rubree or any kind of sweets, in the preparation of which milk or any of its products except ghee is an ingredient; or (b) sell, serve, supply or export or cause to be sold, served, supplied or exported any cream, casein, skimmed milk, khoa, rubree or any kind of sweets in the preparation of which milk or any of its products except ghee, is an ingredient; (c) export milk from the State of Haryana, to any other State or Union Territory, and (d) export Paneer from the State of Haryana to any other State of Union Territory; provided that nothing in this clause shall apply to the use of milk (i) for the manufacture, sale, service or supply of ice cream, kulfi, kulfa, or paneer in the preparation of which no khoa, rubree or cream is used. (ii) for the manufacture, sale service or supply of such milk and milk products as the State Government may, having regard to the needs of the Defence Forces, by an order permit; (iii) by such milk factories engaged in the processing of milk for consumption in fluid form or factories registered or licensed under the Industrial (Development and Regulation) Act, 1951, for the manufacture of condensed milk, milk powder, baby food or any other such products; (iv) by the National Dairy Research Institute, Karnal, for the manufacture and sale of any milk products for the purposes of training and research; Provided further that nothing in this clause shall apply to the export of milk (i) in any quantity by Delhi Milk Scheme, Mother Dairy Delhi through their well identified tankers and officers; (ii) in a quantity up to one quintal by any one vendor to Delhi; (iii) to Himachal Pradesh on permit issued by the Milk Commissioner, Haryana. * * * * *" The Notification clearly prohibits the export of milk by the petitioners from the State of Haryana for the period May 24, 1978, to July 14, 1978.;