JOSHI, J. - (1.) THESE four writ petitions challenge the validity of the Rajasthan (Display of Prices & Stocks of Essential Commodities) Order, 1966 on various grounds to be stated hereinafter. There is no material difference in the facts of these four writ petitions and so it will be sufficient to state facts from one of the writ petitions, viz. S. B. Civil Miscellaneous Writ Petition No. 1979 of 1973 (M/s Sitaram & Sons vs. State of Rajasthan) with reference to which all the writ petitions have been argued by the learned counsel for the parties. The contentions raised in all these four writ petitions are common and, therefore, the petitions are being disposed of by a common judgment.
(2.) TO resume the facts from the writ petition No. 1979 of 1973 (M/s Sitaram & Sons vs. State of Rajasthan) it may be stated that the petitioner is a dealer in iron andsteel materials at Jaipur. The Rajasthan Government issued an order known as Rajasthan (Display of Prices & Stocks of Essential Commodities ) Order 1966 which shall be hereinafter referred as the impugned order, in the exercise of powers conferred by sec. 3 of the Essential Commodities Act read with the notification of the Government of India, Ministry of Food Agricultural, Community Development and Co-operation, Department of Food, dated June 9, 1966 and June 18, 1966. This impugned order sought to impose restriction on the dealer in the matter of exhibition of list of prices in regard to the articles listed in the schedule to the impugned order and also enjoined upon to dealer to sell the articles subject to the terms and conditions mentioned in clause (4) of the impugned order. Certain more restrictions have been placed under the impugned order, which shall be adverted to hereinafter at appropriate places. Originally the schedule to the impugned order contained the list of articles in which the iron and steel did not find place, but later on iron and steel were also came to be added in the schedule to the impugned order prior to the filing of the writ, which fact is not disputed before me by either side. It may also be stated here that prior to the issuance of the impugned order the Government of India promulgated Iron & Steel (Control) Order, 1956 in exercise of its powers under section 3 of the Essential Commodities Act, 1955, hereinafter called the Act. The Iron & Steel ( Control) Order, 1956, which contains the provisions for the regulation and maintenance of the price and distribution of the goods and their availability at a fair prices and deals with the various matters in regard to acquisition, disposal, distribution of such articles, fixation of the prices and other ancillary matters governing the sale and purchase of the iron and steel and regulating their distribution and also maintaining the increased supply and fair distribution thereof amongst the consumers. These provisions will be referred to at an appropriate place when I shall proceed to deal with the various contentions of the learned counsel for the petitioner. The learned counsel for the petitioner has attacked the validity of the impugned order on the various grounds which may be summarised as under - (1) The Central Government by promulgating the Iron and Steel (Control) Order had exercised its whole power under section 3 of the Act in regard to the iron and steel. It was, therefore, contended that no scope or room was left with the State Government to make any regulation, order or provision in respect of iron and steel. Accordingly the State Government was not competent to make any provision in regard to the exhibition of the prices of iron and steel or for the sale of them as provided in clauses (3) and (5) of the impugned order respectively. (2) The provisions as to display of list of prices under clause (3) and so also the provision regarding the purchase and sale thereof are inconsistent with the provisions of the Iron and Steel ( Control) Order and, therefore, they being repugnant to the Iron and Steel Control Order are illegal. (3) The provisions contained in clauses 3 and 5 of the impugned order in fact and in substance result in the control of prices and distribution of the same but no such power under section 3 (2) (c) of the Act was ever conferred upon the State Government and consequently the said clauses (3) and (5) of the impugned order are beyond the legislative competence of the State Government In any event the powers of the State Government flow from the directions issued by the Central Government under section 3 of the Act. The Central Government has plenary powers, whereas the State Government's powers flow from the direction and delegation issued and made from time to time by the Central Government and they are subject to the conditions and terms laid down in the directions so made and, therefore, as delegate it could not issue any order which directly or indirectly leads to inconsistency between the provisions made by the Central Government and those made by the State Government. (4) That the requisite opinion, which is an essential condition precedent for exercising the powers under section 3, was never formed by the State Government before promulgating the impugned order. Before I pronounce on the contentions advanced before me I may first state the relevant law governing cases of this type. It is well to remember that the State Government while exercising powers conferred upon it by the Central Government acts as a delegate of the Central Government and its powers flow from the direction issued by the Central Government from time to time under section 3 read with section 5 of the Act. It cannot be gain said that the Central Government having plenary powers is statute making body of superior efficacy, whereas the State Government's powers being subject to the terms and conditions laid down by the Central Government by its delegation are of inferior efficacy vis-a-vis the Central Government. Therefore, if powers in respect of a matter which has been exercised by the principal then delegate has no power to make further provisions in respect of that matter As a natural corollary, if the delegate exercise the powers in regard to matters which have already been covered by the order of the Central Government then the law of the State Government will be taken to be inconsistent with the provisions made by the Central Government. In order to see whether there is any inconsistency between the legislative provisions of the Central and the State Government, we have to remember the settled principles of law laid down by Nicholas in his Australian Constitution, 2nd Edition, page 303, which summarised as follows - " (l) There may be inconsistency in the actual terms of the competing statutes : (2) Though there may be no direct conflict, State law may be inoperative because the Commonwealth law or the award of the Commonwealth Court is intended to be a complete exhaustive Code; and (3) Even in the absence of intention, a conflict may arise when both State and the Commonwealth seek to exercise their powers over the same subject matter. " The above passage has been cited with approval in Tata Iron & Steel Co. Ltd. vs. The State of Kerala (l ). The Supreme Court relying upon the above mentioned dictum laid down the following principles to test whether there is any inconsistency between the two legislative provisions - (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State legislature; and (3) Whether the law made by Parliament and the law made by the State legislature occupy the same field. The position of law again came to be examined in State of Orissa vs. Tulloch and Co. (2), wherein the Supreme Court has summarised the position thus : - "the best of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy; for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactment of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. " The provisions of the impugned order are, therefore, to be examined in the light of the propositions of law settled by the Supreme Court. For this purpose it will be necessary to have a glimpse at the provisions of the Iron and Steel (Control) Order and so also the provisions of the impugned order. I first of all venture to deal with the import effect and the scope of the various provisions of the Iron and Steel (Control) Order. Clause (4) of the Iron and Steel Control Order provides for a quota certificate or permit to acquire any iron or steel. Clause (5) make provisions for special or general order of the Controller for disposal of iron and steel. Clause (7) provides that iron or steel acquired under clause (4) is not to be used except in accordance with the conditions subject to which it was acquired. Clause (8) enjoins upon the person disposing of iron and steel to obtain from the acquirer the authority under which it was disposed of. Then comes clause (10) which confers powers on the Controller to issue directions for sale. Clause (11) in its turn prohibits removal without written permission from the Controller, whereas clause (12) empowers the Controller to require dealers to maintain such books, accounts and records as he may deem necessary, and to call for their production and filing of returns. Clause (13) deals with the powers of the Controller to issue directions in the matter of production. Clause (14) is an important one and consists of four subclauses. Sub-clause (l) of clause (14) provides that the Controller may issue directions to maintain and exhibit a list of godowns in which the iron and steel is stocked. Sub-clause (2) authorises the Controller to issue directions to the purchaser or stock-holder that every purchaser or stock-holder when selling iron or steel would give the purchaser a memorandum containing specified par iculars. Clause (14) (3) enjoins upon the dealer not to refuse to sell iron or steel without sufficient reason which he is authorise to sell. Sub-clause (4) of clause (14) confers residuary powers on the Controller to issue general directions to such persons and clause (15) empowers the Controller to fix prices. Further, clause (16) empowers the Controller to control production and clause (17) empowers the Central Government to give directions to the Controller and other authorities. Clauses (17a) and (17b) needs also reference as. they had come to be added by the notification dated 29th March, 1971 of the Central Government. Under clause (17a) the Central Government is empowered to give directions to producers or stockists of any category of iron and steel or to such other persons, as it considers necessary in regard to the matters referred to therein. Then comes clause (17b), a perusal of which will show that the Central Government is empowered to set up from time to time such committees, bodies or authorities, as it may consider necessary for the purpose of giving effect to the provisions of Iron and Steel (Control) Order with respect to any category of iron or steel, whether such category is subject to or exempt from the operation of all or any such provisions. In regard to clause (17a) a pointed reference may be made that the Central Government is empowered under that clause to exempt any category of iron or steel from the operation of all or any of the provisions of the order. There are many other provisions in regard to the disposal of acquisition of iron or scrap of any category of iron and also ancillary miscellaneous provisions which need not be taken note of, as to my mind they are not necessary for the purpose of the disposal of the contentions raised before me. It will be appropriate to advert here to the provisions of secs. 3, 4 and 5 of the Act. Sec. 3 is a very important section which empowers the Central Government to make provisions 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 operations by issuing order if it is of opinion that it is necessary or expedient so to do for achieving the objects specified in sec. 3 of the Act. Sec. 3 of the Act comprises of six sub-sections wherein detailed provisions have been made for achieving the objects laid down in sub-sec. (1) and (2) of sec. 3 of the Act. Sec 4 in its turn provides that an order made under sec. 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Govt. or State Government and may contain directions in regard to exercise of any such powers or the discharge of any such duties. Under sec. 5 of the Act the Central Government, may direct by its notified order under sec. 3, 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. Looking to the scope of sec. 3 and objects specified in sec. 3 and also the provisions of the Iron and Steel (Control) Order, one thing is evident that the Iron and Steel (Control) Order covers the whole sphere of the legislative field delineated in sub-sec. (1) of sec. 3 of the Act and the other provisions thereof. The Iron and Steel (Control) Order contains the provisions in regard to the maintenance or increase of supplies of iron and steel. It also embraces in it the provisions relating to equitable distribution and its availability at fair prices and other matters relevant to the objects specified in sub-sec. (1) of sec. 3 of the Act. It is true that the Central Government has issued three notifications dated June, 9 1966, June 18, 1966 and July 30, 1966, delegating its powers under sec. 5 of the Act to the respective State Government. Copies of the Notifications dated June 9, 1966, and June 18, 1966, have been placed on the record as schedule B and C, but the copy of the Notification dated July 30, 1966, has not been referred either in its writ petition nor its copy has been placed on the record but the same is reproduced for ready reference, - "s. O No. 2314, dated July 30, 1966: - In exercise of the powers conferred by Sec. 5 of the Eseential Commodities Act, 10 of 1955, the Central Government hereby directs - (a) that the powers conferred on it by subsec. (1) of Sec. 3 of the said Act to make orders to provide for the matters specified in clause (c) of sub-sec. (2) thereof shall, in relation to all commodities other than food stuffs and fertilisers (whether inorganic, organic or mixed), be exercisable also by a State Government or, in relation to a Union Territory, by the Administrator thereof, subject to the following conditions, namely: - (i) that whether the price at which any essential commodity may be brought or sold is controlled by or under any other law for the time being in force, no order shall be made in pursuance of the powers hereby delegated; (ii) that where the price is not so contorlled, no order shall be made in pursuance of the powers hereby delegated in respect of any essential commdity, - (a) if the wholesale prices, or retail prices, or both, of such commodity have been fixed by the manufacturers or producers thereof with the approval of the Central Government, except on the basis of such prices; (b) if any other case, except with the prior concurrence of the Central Government; (iii) that no order shall be issued in pursuance of the powers hereby delegated if it is inconsistent with any order issued by the Central Government under the said Act; (b) that all previous orders issued under sec. 5 of the Essential Commodities Act in so far as they relate to delegation of powers under the provi sions of Secs. 3 (1) and (2) (c) referred to in clause (a) above,except orders under the said sec. 5 relating to fertilizers and the order (relating to food stuffs) of the Govt. of India in the Ministry of Food, Agriculture, Community Development and Co-operation (Department of Food) No. G. S. R. 806, dated the 9th June, 1966 shall stand rescinded: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Obviously June 9, 1966, notification has no relevance. Under it, powers are conferred upon the State Government in regard to clauses (a), (b), (c), (d), (e), (f), (g), (h ). (i), (ii) and (j) of sub-sec. (2) of sec. 3 in relation to foodstuffs only and, therefore, it is not relevant for my purpose. Under the notification dated June 9, 1966. powers have been conferred by the Central Government on the State Government to make order to provide for the matters specified in clauses (a), (b), (d) (e), (f), (g), (h), (i), (ii) and (j) of sub-sec. (2) of sec. 3, but no powers have been delegated for controlling the price which is covered by sec. (3) (2) (c ). Under Notification dated July 30, 1966, powers have been delegated in regard to sec. 3 (2) (c), which relates to the controlling the prices. There is in each of the notifications dated June 18, 1966, and July 30, 1966, a clause that no order shall be issued in pursuance of the power so delegated if it is in any way inconsistent with any order issued by the Central Government under the said Act. Looking to the provisions of the Iron and Steel (Control) Order, and secs. 3 and 5 of the Act and so also the relevant clauses of the notification dated 30-7 66 forbidding the State Government to issue any inconsistent order, it has to be seen whether the validity of the impugned order can be sustained in face of the provisions referred to above. From the resume of the provisions of the Iron and Steel Order, which I have earlier given, I am of the opinion that the Iron and Steel (Control) Order contains exhaustive code in regard to the matters specified in sub sec. (l) of sec. 3 of the Act and, therefore, to my mind there can be no scope left for the State Government to legislate on the matters which are already covered by the provisions of the Iron and Steel (Control) Order. Therefore, in view of the settled position of law, as stated earlier, the State Govt. is not competent to make any provisions in the face of those made by the Central Govt. as they will be deemed to be inconsistent. The inconsistency need not be direct. In the presence of the Iron and Steel (Control) Order, there is no room for the State Government to trench upon the field of law already covered by the Central Government. Viewed in this light, the validity of the provisions of the impugned order cannot be sustained in law and the impugned order deserves to be quashed on this score alone.
(3.) MR. Shrimal, learned Additional Advocate General, argued that there is no specific provision made in regard to display of prices of Iron and steel in the Iron and Steel ( Control ) Order and, therefore, despite the fact that the whole sphere of law in theory may be taken to be covered by the Iron and Steel (Control) Order, but in substance and in fact it has not been exploited. It is said that there may be powers under the Iron and Steel (Control) Order for fixation and regulation of the prices and also for the regulation and supply and also of the equitable distribution thereof, but that power had not been in fact exercised and until it is exercised there is always a room for the State Government to make the provisions for regulating in regard to that sphere of law which has not actually been exploited by the orders of the Central Government. In support of his contention learned Additional Advocate General relied upon Deepchand vs. State of U. P. (3 ). This case has been noticed and distinguished in Ram Chandra Palai vs. State of Orissa (4) and wherein the three principles stated by Nicholas have been reiterated. The same position of law appears to be endorsed by the authority in State of Orissa vs. Tulloch and Co. (2 ). To my mind, therefore, there is no force in the contention of the learned Additional Advocate General. The whole field of law relating to matters specified in sec. 3 of the Act appears to be covered by the Iron and Steel (Control) Order and even if it is taken for argument's sake that specific directions have not been issued in regard to the matters envisaged by the Iron and Steel (Control) Order that would hardly make any difference. The power is there and is capable of being exercised at any time as and when the Central Government so desires. I am, therefore, of opinion that no room or scope was left with the State Government to legislate in the sphere covered by the Iron and Steel (Control) Order. The matter does not rest here. The provisions of the impugned order are also in direct conflict in some respect with the provisions of the Iron and Steel (Control) Order itself. Learned Additional Advocate General has placed before me the notifi-tion dated April 29, 1967 in which all categories (including defectives and scrap of these categoies) of. This iron and steel contained in the schedule to the Iron and Steel (Control) Order are exempted. This notification may be extracted here - "the GAZETTE OF INDIAEXTRAORDINARY PART II - Section 3 - Sub-section (ii) Published by authority No. 267 New Delhi, Monday, May 1, 1967/vaisakha. MINISTRY OF STEEL MINES & METALS (Department of Iron and Steel) NOTIFICATION NEW DELHI, the 29th April, 1967. S. O. 1552/ess. Comm [iron & Steel-2a - ln exercise of the powers conferred by clause 2a of the Iron and Steel (Control) Order, 1956, as amended from time to time, the Central Government hereby exempts the categories of steel specified in the schedule annexed hereto from the provision contained in Clauses 4, 5, 15, 18, 20 and 27 of the said Order provided that all acquisitions disposals and sales are made within India. SCHEDULE All categories (including defectives and scrap of these categories) or iron and steel contained in the Schedule to the Iron and Steel (Control) order, 1956 as amended from time to time No. SC. (I)-5 (2)/67 N. P. Mathur, JT. SECRETARY. " What is the import of this notification has to be seen. It is obvious that the Government while exempting the iron and steel articles from the purview of the provisions contained in clauses 4, 5, 15, 18, 20 and 27, has at least restrained its control over the prices and supply of the articles of the iron and steel. But if we peruse the provisions of clauses (3) and (5) of the impugned order the same cannot be said in regard to it Clause (3) enjoins upon the dealer to exhibit the list of prices conspicuously near about the entrance of the business premises Clause (5) puts restrictions in the matter of the sale and purchase and it seeks to regulate the supplies, disposal and acquisition. It is obviously, therefore, in conflict with the provisions of the Iron and Steel (Control) Order. Under clause (5) it is incumbent upon the seller to sell the articles which are in stock with him But as stated before me by the counsel for both the sides that under clause 17-B a Joint Plan Committee and Steel Priority Committee have been constituted by the Central Government and this committee has issued direcions from time to time in the matter of priorities in regard to the production and supplies of the iron and steel. Now if the provisions of clause (5) are to be complied with, they are bound to clash with the priorities provided in the directions of the Joint Plant Committee and that is bound to lead to the inconsistency of the impugned order with the provisions of the Iron and Steel (Control) Order. The validity of the impugned order, therefore, cannot be sustained on this ground also. It was next contended on behalf of the petitioner that the impugned order purports to have been issued in the exercise of powers under sec. 3 of the Act read with notification dated 9th June, 1966 and 18th June, 1966 only. The contention of the learned counsel for the petitioner in this behalf is that the powers under sec. 3 (2) (c) regarding the regulation or control of prices were never delegated to the State Government under the notification referred to in the preamble to the impugned order. It is said that provisions contained in clauses (3) and (5) of the impugned order in substance and in fact seek to and control prices as envisaged by sec. 3 (2) (c ). Such a legislation is beyond the competence of the State Government which was merely taking its powers from the directions of the Central Government from time to time. It is true that none of the notifications referred to in the preamble to the impugned order relate to the conferring of the powers under sec. 3 (2) (c ). The question, therefore, immediately arises for consideration is whether the provisions as to the display of prices and sale of articles according to the prices mentioned in clauses (3) and (5) respectively of the impugned order can be taken to regulate or control prices of essential commodities or distribution thereof. The question regarding the import of clause (3) came to be considered by the Kerala High Court in some of the cases, but I need refer only A. K. Abdulla vs. State (5) where it has been held that these provisions tend to control or regulate the prices. I also do not see any other import of these two provisions except that they tend to regulate supply and control prices of the essential commodity. The learned Additional Advocate General then took shelter under the notification dated July 30, 1966. whereunder the powers under sec. 3 (2) (c) have been conferred upon the State Government. Clause (iii) of that notification specifically provides that the order of the State Government shall in no way be inconsistent with the order of the Central Government. As stated earlier the Central Government exempted the iron and steel from the purview of the price control and, therefore, it is difficult to accept the contention of the learned Additional Advocate General. The provisions of clauses (3) and (5) in relation to iron and steel are sustainable in law under the notification dated July 30, 1966. The argument that the impugned order is only of a supplementary nature and does not trench upon the field covered by the Iron and Steel (Control) Order, as the latter has not made any provision in regard to display of prices is also not acceptable. It cannot be denied that the Controller of the Iron and Steel is empowered to issue any directions general or special which he deems necessary in regard to iron and steel under clause 14 (4) of the Iron and Steel (Control) Order. The power to issue direction for exhibition of list of iron and steel prices is also included in the power conferred on the Controller under clause 14 (4 ). Moreover the iron and steel has been exempted from the control of prices by the Central Government and, therefore, the power will be deemed to have been exercised by the Central Government leaving no room for the State Government to enjoin on the dealers of the iron and steel to display the list of prices etc. under clause (3) of the impugned order. Viewed from any angle I am of the opinion that the impugned order cannot be sustained as the entire field of law relating to the relevant matter envisaged by sec. 3 of the Act is covered by the Iron and Steel (Control) Order and further the provisions of the impugned order which seeks to control prices and regulate the supply of iron and steel by controlling the prices is inconsistent with the provisions of Iron and Steel (Control) Order and the orders of the Central Government made thereunder and, therefore, the order is ultra vires to the Iron and Steel (Control) Order and also beyond the competence of the State Government. ;