Judgment In this application under Articles 226 and 227 of the Constitution the petitioner has prayed for quashing an order of confiscation dated the 20th of April 1976, of the District Magistrate, Nalanda, passed under section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as 'The Act') as also another order of the District Magistrate of the same date canceling the licence of the petitioner issued to it 'under the Bihar Cement Control Order 1972. Copies of the two orders have been filed as Annexures 1 and 6 respectively. 2. The short facts necessary for the disposal of this writ petition are as follows. The petitioner is a dealer of cement and a licence under the Bihar Control Order 1972 was granted to the petitioner by the District Magistrate, Nalanda. On the 30th of October, 1975, the Assistant District Supply Officer visited the business premises of the petitioner, which is also used as a residence of the petitioner, and 332 bags of cement were seized. The seizure was on account of the fact that 32 bags of cement were found in excess of what was shown in the stock register. On the basis of inspection report of the Assistant District Supply Officer, a criminal case was launched against the petitioner under section 7 of the Act, and Rule 114 of the Defence of India rules at Bihar police station which was numbered as case no. 18 (11) 75. It may be stated as a matter of history that this court in Criminal Miscellaneous case no. 777 of 1976 directed release of 300 bags of cement in favour of the petitioner on furnishing security by order dated 1.3.1976. It may also be stated that it is an undisputed fact that the remaining 32 bags out of the entire lot seized consisted of Hydrophobic cement. Besides launching criminal prosecution against the petitioner, the District Magistrate, Nalanda, also started a proceeding for confiscation of 332 bags of cement against the petitioner. The allegation against the petitioner is two fold, firstly that the stock was in excess by 32 bags than what was shown in the stock register and secondly that the contents of cement ceized were less than 50 kgs. The allegation against the petitioner is two fold, firstly that the stock was in excess by 32 bags than what was shown in the stock register and secondly that the contents of cement ceized were less than 50 kgs. On receipt of the show cause, the District magistrate exonerated the petitioner of the second charge, that is, with regard to the contents of the bags being less than 50 kgs., but as the petitioner violated the provisions of the Bihar Cement Control Order 1972 with regard to stock being in excess by 12 bags, he directed the entire quantity of cement seized, that is 332 bags, to be forfeited to the State Government. Not only that, in pursuance of that order the petitioner's licence under the Bihar Cement Control Order 1972 was also cancelled by another order of the District Magistrate (Annexure 6). It may be stated that in the Bihar Cement Control Order, 1972, as originally promulgated, Hydrophobic cement was not included in the definition of cement. In other words, it was not a controlled commodity. The expression "Hydrophobic Cement" was, however, included in the definition of cement under clause 2 (1) by notification issued by the Governor of Bihar under section 3 of the Act, dated the 12th December, 1975. Although the notification in question was issued on the 12th December, 1975, it was stated in clause (2) of the Notification that "this amendment shall be deemed to have come into force with effect from 1st October, 1975". 3. The main question, therefore is whether by retrospectively amending the definition of cement by inclusion of Hydrophobic cement a confiscation proceeding could legitimately be started against the petitioner for violation of the Bihar Cement Control Order, 1972, when retention of some quantity of Hydrophobic cement in excess of the stock of the cement shown was not a violation of the aforesaid control order. 4. The power of competent legislature to pass an enactment, either prospectively or retrospectively, is beyond any dispute in view of the decisions of the Supreme Court on the point beginning with a case of Radha Kishan Vs. State of Uttar Pradesh. The question is whether such a retrospectively amending Control order could be made by the Governor of Bihar. These Control orders are issued by the State Government in pursuance of the powers delegated under section 5 of the Act, which reads as follows:- "5. State of Uttar Pradesh. The question is whether such a retrospectively amending Control order could be made by the Governor of Bihar. These Control orders are issued by the State Government in pursuance of the powers delegated under section 5 of the Act, which reads as follows:- "5. Delegation of powers: - The Central Govt. may, by notified order, direct that the power to make orders or issue notifications under section 3 shall, in relation to such matters, and subject to such conditions, if any, as may be specified in the direction, 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 State Government" It was in exercise of the powers conferred by section 3 that the Central Government by Notification No. S.O. No. 1844 dated 18th June, 1966, delegated power to the State Government to make control orders, which runs as follows;- “S.O. No. 1844 dated 18th June 1966 (Published in Gazette of India Extra ordinary part II, Section 3(ii) dated 9th June 1966) - In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955) The Central Government here by directs. (a) that the powers conferred on it by sub-section (1) 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, in relation to all commodities other than food stuffs and fertilisers (whether inorganic or mixed), be exerciseable also by a State Government or, in relation "to a Union Territory by the Administrator thereof, subject to the following conditions namely:- (i) that the delegation of powers under clause (d) shall not extend to interstate transport or distribution and the powers under that clause shall not be exercised so as to prejudicially affect such transport or distribution in pursuance of any order of the Central Government. (ii) that all orders under Clause (f) shall require 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 section 5 of the Essential Commodities Act, in so far as they relate to delegations of powers under the provisions of section 3(2) referred to in clause (a) above, except orders under the said section 5 relating to fertilisers and the order (relating to food stuffs) of the Government of India in the Ministry of Food, Agriculture Community Development and Co-operation (Department of Food) No. G.S.R. 906 dated 9th June 1966, shall stand rescinded. Provided that, notwithstanding such rescission any order (hereinafter referred to as the said order) made by a State Government or any officer subordinate to that State Government or Administrator or in pursuance of the orders so rescinded and in force immediately before the commencement of this order shall be deemed to have been made in pursuance of this order and under the relevant provisions of section 3 of the said Act, and shall continue in force according to tenor, and accordingly any action taken or thing done (in eluding any action taken or thing done including any appointment made, licence or permit granted or direction issued) under the said order and in force accordingly to its tenor until and unless it is superseded by any action taken or anything done under any other order made in pursuance of this order and under the relevant provisions of section 3 of the said Act." A reference to section 5 and the notification issued by the Central Government delegating power under section 5 does not confer any power on the Governor of Bihar to make any order with retrospective effect. The Control orders made by the Governor are in the nature of delegated legislation and such legislations cannot be retrospective unless the power, either expressly or by necessary implications, is conferred on the delegate. The view we have taken gains support from a decision of the Supreme Court in the case of the Income-tax Officer. The Control orders made by the Governor are in the nature of delegated legislation and such legislations cannot be retrospective unless the power, either expressly or by necessary implications, is conferred on the delegate. The view we have taken gains support from a decision of the Supreme Court in the case of the Income-tax Officer. Allepey V.I.M.C. Pornnoose and others It was held in that case as follows: "The courts will not, therefore, ascribe retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it mayor may not be possible to make the same as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect". This decision has been followed in a subsequent decision by the Supreme Court in the case of Hukum Chand Vs. Union of India It is, therefore, manifest that no aid of the definition of the expression cement inclusive of Hydrophobic cement, with retrospective effect from 1.10.75 could be taken to justify the confiscation proceeding against the petitioner under section 6A of the Act. Apart from that, there is another difficulty in the way of the state in maintaining the order of confiscation. An order under section 3 of the Act, is required to be made in a particular manner as laid down in sub-section (5) of section 3 of the Act, the relevant portions of section (5) read as follows :- "An order made under their action shall- (a) in the case of an order of a general nature or affecting a class of persons, notified in the official Gazette: and (b) in the case of an order directed to a specified individual be served on such individual. (i)…………………… (ii) If it can not be so delivered, or tendered, by affixing if on the outer door or some other conspicuous part of the premises in which that individuals lives, and a written report thereof shall be prepared and witnessed by two persons living in the neigh bourhood". 5. It is, therefore, obvious that the order in question, which is an amendment of a general nature enlarging the definition of cement, comes in the category of general nature and it should be made only by publication in the official Gazette. It is stated in the counter affidavit filed on behalf of the State that the order in question was validly made with the previous consent of the Central Government by the Government on the 10th December, 1975 and published in December 1975, it is thus obvious that neither the amendment was conceived earlier than 10th December 1975 nor promulgated according to law by publication in the Gazette earlier to 12th December 1975, so as to make Hydrophobic cement a controlled commodity and the petitioner may be held to have contravened the provisions of the Cement Control Order. We are, therefore satisfied that the order confiscating the cement cannot be sustained and must be quashed. As a corollary to our order, the order canceling the licence of the petitioner must also be quashed. 6. In the result, the writ petition is allowed and order as contained in Annexure 1 and 6 are quashed. In the circumstances of the case we make no order as to costs. Application allowed.