Gopal Roy v. State Of Bihar — 1988 DIGILAW 303 (PAT)

Judgment 1. This criminal writ petition, in our view can be disposed of at the stage of admission as the issues involved are those of law there being no dispute on facts. We have heard the learned Advocate for the writ petitioner as also the learned Standing Counsel No. V, who appeared on behalf of the respondents. We also requested the learned Advocate General to assist the Court at the hearing as it appeared to us that the point mooted was of some importance. 2. In this writ petition the petitioners seek to impugn a notification issued and published by the Government of Bihar, numbered G. S. R.30 dated the 27th june, 1986, which reads as follows : "g. S. R.30.- In exercise of the powers conferred by sub-clause (a) of clause 2 of the Bihar Essential Articles (Display of Prices and Stocks order, 1977, the Governor of Bihar declares brick to be an article under clause 2 (a) of the said Order and adds it in Schedule I of the said order just below serial No. 34 Fertilizer whether inorganic, organic or mixed as serial No.35. " 3. Subsequent thereto the Additional District Magistrate (Supply), Purnea, the respondent No.5, issued notices to all brick manufacturers in the district of purnea to comply with the provisions of the Bihar Essential Articles (Display of prices and Stocks) Order, 1977, (hereafter to referred as the Display Order of 1977) so as far as brick was concerned. 4. Following the said notices District Officials, like the Block Supply officers and the Inspector of Police Subordinates to the Collector, Purnea, the respondent No.2 and the Superintendent of Police the respondent No.3 visited the brick-kilns of Purnea, including that of the petitioner, and threatened that unless the provisions of the said Display Order of 1977 were complied with coercive steps, like seizure, criminal prosecution and confiscation will be taken. 5. The writ petitioners being aggrieved by the aforesaid filed this writ petition in this Court on the 21st July, 1988. 5. The writ petitioners being aggrieved by the aforesaid filed this writ petition in this Court on the 21st July, 1988. It is contended in the writ petition, inter alia, that brick is not an essential commodity within the meaning of the essential Commodities Act, 1955, the further that brick is not the product of any industry the control of which has been declared by the Parliament by law to be expedient in public interest, with in the meaning of Entry 33 of List III of the viith Schedule of the Constitution. In any event, brick has not been notified by the Central Government to be an essential Commodity under the Essential commodities Act, 1955, up till now. 6. It is contended further that neither the Central Government itself nor the Government of Bihar has any power to declare or notify brick to be an essential commodity. 7. The said Display Order of 1977, was promulgated by the Governor of bihar in exercise of the powers delegated to the State Government by the Central government under Sec.5 of the Essential Commodities Act, 1955 and brick was not initially included in the Schedules thereto as an essential commidity. 8. By purported exercise of the powers under Clause 2 (a) of the said display Order of 1977 the Government of Bihar sought to include brick in schedule I of the said Order, under serial No.35 tor the first time by a notification dated 7-4-1982 as an essential commodity though the same had not been declared as an essential commodity by the Central Government. 9. The validity of the said notification was challenged in this Court in several writ petitions including Cr. W. J. C. No.67 of 1985 where a criminal prosecution instituted under the said notification was impugned. A learned Single judge of this Court allowed the said writ petition and quashed the impugned criminal prosecution. 10. The State Government it is contended, promulgated the Bihar Essential articles (Display of Prices and Stocks) Order, 1977, afresh under a notification dated the 30th April, 1986. In this order also brick was not originally included in the Schedule as an essential commodity till the same was included in Schedule I under serial No.35 by the impugned notification dated the 27th June, 1986, 11. In this order also brick was not originally included in the Schedule as an essential commodity till the same was included in Schedule I under serial No.35 by the impugned notification dated the 27th June, 1986, 11. The petitioners contend that the action of the State Government in including the brick in the said Display Order of 1977 is misconceived, unauthorised and illegal for the reasons as aforesaid and the same apart from rendering the petitioners liable to the penal provisions of the Essential Commodities Act interfere with the petitioners fundamental right guaranteed under the Constitution to carry on their lawful business. 12. To appreciate the controversy raised it will be convenient to consider to material provisions of the relevant statutes and the Constitution. (I) THE ESSENTIAL COMMODITIES ACT, 1955 section 2. Definition.- In this Act, unless the context otherwise requires - (a) essential commodities means any of the following classes of commodities : (i) Cattle fodder, including oilcakes and other concentrates, (ii) Coal, including coke and other derivatives ; (iii) Component parts and accessories of automobiles; (iv) Cotton and woolen textiles ; (iv-a) drugs. (v) foodstuffs, including edible oilseeds and oils ; (vi) iron and steel, including manufactured products of iron and steel ; (vii) proper, including newsprint, paper board and stra-board ; (viii) petroleum and petroleum products ; (ix) raw cotton, whether ginned or unginned and cotton seed ; (x) ruw jute ; (xi) any other class of commodity which the Central Government may, by notified order, declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of Entry 33 in List III in the Seventh Schedule to the Constitution ; section 3. " (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies or 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. . . . . . . . . . . " section 5. . . . . . . . . . . . . . " section 5. . . . "the Central Government may, by notified order, direct that the power to make orders or issue notifications under Sec.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. Sec.6-A. " (1) Where any essential commodity is seized in pursuance of an order made under Sec.3 in relation thereto it shall be reported without any unreasonable delay to the Collector of the district in which such essential commodity is seized and the Collector may, if he thinks it expedient so to do. inspect or cause to be inspected such essential commodity, whether or not the prosecution is instituted for the contravention of such order and the Collector, if satisfied that there has been a contravention of the order, may order confiscation of - (a) the essential commodities so seized ; (b) any package, covering or receptacle in which such essential commodity is found ; and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. . . . . . . . . . . " CONSTITUTION OF INDIA, SCHEDULE VII, LIST III entry 33. . . . . . "trade and commerce in, and the production, supply and distribution or - (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the police interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils ; (c) cattle-fodder, including oilcakes and other concentrates ; (d) raw cotton, whether ginned or unginned, and cotton seed ; and (e) raw jute. G. S. R.11 dated the 30th April, 1986.-"now, therefore in exercise of the powers conferred by Sec.3 of the Essential Commodities Act, 1955 (10 of 1955)read with the order of the Government of India in the Ministry of Agriculure published under G S. R.316 (E), dated the 20th June, 1972 and the order of the Government of India in the Ministry of Industry and Civil Supplies under s. O.681 (B) and S. O.682 both, dated the 30th November, 1974 and with the prior concurrence of the Government of India, Ministry of Civil Supplies and cooperation received under the letter No. F-20 (10)/77 E C R dated the 20th september, 1977, the Governer of Bihar is pleased to make the following bihar ESSENTIAL ARTICLES (DISPLAY OF PRICES AND STOCKS) ORDER, 1977 clause 2 (a ). . . . . . . . . . "article" means any essential mentioned in schedules I and II appeanded to this Order and includes any other article to be declared so from time by the State Government or the Commussioner or the District Magistrate empowered by the State Government in this behalf ; (c) "dealer" means a person who deals in the sale or storage for sale or storage for sale either wholsale or retail of any of the articles mentioned in schedules I and II and includes his agent or representative or Arhatia. " clause 3. . . . . . "every dealer shall before commencement of his business on any day display at a conspicuous place near the entrance of his business premises the following : (a) A list of prices and stocks of all these articles mentioned in Schedule i in which he deals. . . . . . " clause 4. . . . . . . "no dealer shall - (a) sell to any person any article mentioned in Schedules I and II at a price higher than that displayed in accordance with Clause 3. . . . " clause 6. . . . . "any Commissioner. District Magistrate. Sub-divisional magistrate or any Executive Magistrate, Deputy Director of Food and Civil supplies. . . . . "no dealer shall - (a) sell to any person any article mentioned in Schedules I and II at a price higher than that displayed in accordance with Clause 3. . . . " clause 6. . . . . "any Commissioner. District Magistrate. Sub-divisional magistrate or any Executive Magistrate, Deputy Director of Food and Civil supplies. Additional Collector (Supply), District Supply Officer, Additional district Supply Officer, Rationing Officer, Deputy Rationing Officer, Assistant rationing Officer, Circle Officer, Block Development Officer, Project Executive officer, Assistant Project Executive Officer, Marketing Officer, Assistant Marketing officer, Supply Inspector, Police Officer not below the rank of Sub-Inspector of police or any other officer not below the rank of Executive Magistrate authorised by the State Government in this behalf may with a view to secure compliance with this Order or satisfying himself that this Order has been complied with - (a) require any person to give a copy of the list of prices or any other information in his possession in respect of any business of a dealer carried by him or on his behalf and such person shall give the copy or the information required of him ; (b) inspect or cause to be inspected any book or document or any stock of articles belonging to or under the control of any person and take such book or document or stock in his possession ; and (c) enter and search any premises or place and seize any article in respect of which such officer suspects that any provision of this Order has beeg or is being or is about to be contravened". 13. Learned Advocate for the petitioner reiterated the contentions in the writ petition and relying on the aforesaid statutory provisions and the provisions in the Constitution contended that the brick was an item which was not declared to be an essential commodity under Sec.2 of the Essential Commodities Act, 1955 . He submitted that notifications have been issued by the Central Government from time to time declaring other items as essential commodities for the purpose of the Act of 1955 from 1956 onwards but brick was never declared by the Central Government as an essential commodity. He submitted that notifications have been issued by the Central Government from time to time declaring other items as essential commodities for the purpose of the Act of 1955 from 1956 onwards but brick was never declared by the Central Government as an essential commodity. He submitted further that the Government of Bihar in exercise of power delegated to it by the Central government under Sec.5 of the Act of 1955 could act only within the limits of such powers delegated and had no jurisdiction or authority to declare an item to be an essential commodity and thereby extend the ambit of the Essential commodities Act, 1955, a Central Act. 14. Learned Advocate General appearing for the State of Bihar and other respondents did not dispute that in view of the statutory provisions as the stood at present it could nut be asserted that brick was a commodity declared as essential under the Essential Commodities Act, 1953 and in that view the contention raised on behalf of the writ petitioners were not without substance. The learned advocate General also did not contend that the State of Bihar acting within the powers delegated to it by the Central Government under the Act of 1955 was entitled or empowered to declare items to be essential commodities vvhich were not so declared under the Essential Commodities Act itself or by the Central government by notifications issued under Sec.2 (a) (xi) of the said Act. 15. On a consideration of the statutory provisions and the respective submissions of the parties it appears to us that this writ petition has to be allowed. It is not, and cannot be, disputed that under law as it stands at present brick is not an essential commodity specified in the Essential Commodities Act, 1955 , nor declared to be so by the Central Government in exercise of its powers under sectoin 2 (a) (xi) of the said Act. It has not been brought to our notice that any law has been passed by the Parliament declaring that control of the industry of manufacture of bricks it deemed to be expedient in public interest. 16. The State of Bihar is a delegatee vis-a-vis the Central Government and has been delegated the power to make orders and issue notifications under Sec.3 of the said Act of 1955 to control, production, supply distribution, etc. of essential commodities. 16. The State of Bihar is a delegatee vis-a-vis the Central Government and has been delegated the power to make orders and issue notifications under Sec.3 of the said Act of 1955 to control, production, supply distribution, etc. of essential commodities. No power has been and could be delegated to the State government to declare by itself any item to be an essential commodity. 17. For the reasons as aforesaid the impugned notification dated the 27th june, 1986, being Annexure 1 to the writ petition, and the impugned notice dated the 9th September, 1987, issued by the Additional District Magistrate (Supply) Purnea, the respondent No.5, cannot be sustained. Let appropriate writs issue for quashing the said notification and the said notice. 18. The writ petition is disposed of accordingly, without any order as to costs. Petition allowed.