LODHA, J. - (1.) ONLY one short point has been argued in support of this write petition and it is this that sec. 5-A inserted in the Rajasthan (Display of Prices of Essential Commodities) Order, 1966 (which will hereinafter be referred to as 'the order') is ultra vires and void having been made without the prior concurrence of the Central Government and, therefore, the orders Exhibit-1 and Exhibit 2 dated 3 May, 1974 and 1 July, 1974 respectively, issued by the Collector, Barmer and the confiac-ation of the cement and the prosecution launched against the petitioner in pursuance there of are liable to be quashed.
(2.) IN exercise of the powers conferred by Section 5 of the Essential Commodities Act (Act No. 10 of 1955), the Central Government, vide S. O. No. 1844 dated June 18, 1966, directed : - " (a) that the powers conferred on it by subsection (i) of section 3 of the said Act to make orders to provide for the matters specified in clauses (d), (e), (f), (g), (h) (i) (ii), and (j) of sub section (2) thereof shall, inrelation 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, - (ii) that all orders under clause (f) shall require the prior concurrence of the Central Government: Section 3 of the Essential Commodities Act, 1955 deals with "powers to control production, Supply, distribution etc. , of essential commodities. " The relevant portion of this Section reads as under : - " (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 operations), 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 ; (f) for requiring any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Government or a State Government or to an officer or agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the order. " In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 read with the notification No. So/1844 dated June 18, 1966 with the prior concurrence of the Central Government, the State Government made an order called the Rajasthan (Display of Prices of Essential Commodities) Order, 1966. Clause 5 of the Order provides that : "no dealer shall - (i) sell to any person any article mentioned in the schedule at a price higher than that specified in respect of such article in the list of prices; (ii) refuse to sell such article to any person at the price so specified or marked ; (iii) sell any article to any person without issuing a cash memo or a bill and without keeping a duplicate copy of such memo or bill; Provided that it shall not be necessary to issue such cash memo (giving particulars of the purchaser i e. address etc.) or bill or to keep any such duplicate copy in respect of sale of any article costing not more then Rs. 7/- unless demanded by the purchaser. " By another notification No. F. 37 (49) Ind (A) 66 dated 23 December, 1966, the Government of Rajasthan made an order to amend the Order and, inter alia, added the following new clause after cl. 5 (already extracted above): "5. A (i) The Government or any competent officer, if so authorised in writing by the Government may, in respect of any Essential Commodity any dealer or class of dealers that such Essential Commodity shall be sold by him in such quantity or number, subject to such conditions, after such intervals and in such manners as may be specified in such directions. (ii)On and from the receipt of such directions, the dealer shall be bound to comply with such directions. "
(3.) THE Collector, Barmer, issued the directions (Ex. 1) dated 3 May, 1974 in exercise of the powers conferred upon him by the aforesaid clause '5-A' whereby he ordered that the dealers in cement shall be entitled to sell only 30% of the cement in their stock in the open market and the rest 70% shall be kept in reserve. He also directed that no dealer in cement shall export any cement outside the district of Barmer without written permission from the Collector. On the night of 6 September, 1974 a truck loaded with 68 bags of cement was found standing outside the godown of the petitioner and a suspicion having been aroused that the cement may be exported outside the district, investigation was made at the spot by the officer concerned and beside 68 bags of cement, some more cement was seized by the officer and a report was made to the Collector against the petitioner for violating the directions issued by the Collector vide his order dated 3 May, 1974 (Ex. 1 ). The Collector by his order dated 14 January, 1975 (Ex. 3) found that 49 more bags of cement were lying - in the godown than revealed by the stock register of the petitioner and that 68 bags of cement loaded in the truck were to be exported. Consequently he directed that all the 1350 bags of cement lying in the godown of the petitioner shall be confiscated and so also 68 bags of cement loaded in the truck. He further directed that the petitioner be prosecuted under section 3/7 of the Essential Commodities Act for defiance of his order. It appears that the petitioner was subsequently challaned in the court of Chief Judicial Magistrate, Barmer. Aggrieved by the action of the Collector in confiscation the bags of cement and prosecuting him, the petitioner has filed this petition under Article 226 of the Constitution of India and prayed for granting the following reliefs : - (1) That the provisions of the Rajasthan (Display of Prices of Essential Commodities) Order, 1966 along with the amendment order be declared void. (2) That the orders Exhibit 1 and 2 issued by the Collector be quashed. (3) That the respondents be restrained from interfering in any way with the business of purchase, sale and distribution of cement of the petitioner. (4) That the stock of the cement seized by the Collector be released and the proceedings started by him under section 6-A of the Essential Commodities Act, 1955 be quashed. (5) That the prosecution of the petitioner under section 3/7 of the Essential Commodities Act, in the Court of Chief Judicial Magistrate, Barmer be quashed. (6) That the order of the Collector dated 14 January, 1975 (Ex. 3) be quashed. ;