JUDGMENT 1. - This is a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, directed against the order dated 16th January, 1987, passed by a learned Single Judge of this Court in S.B. Civil Writ Petition No. 882 of 190, whereby the learned Single Judge passed the following order : "For the reasons mentioned above the writ petition is accepted. The relevant part of Annexure 5 i.e. the directions given to the Collector, Dholpur for taking appropriate actions in accordance with law and the instructions that nobody should operate in the milk shed area of Dholpur district is hereby set aside. Consequently, the order Annexure -4 is also quashed. No order as to costs." 2. A few facts relevant for the decision of this special appeal may be stated as under: 3. On or about 5th October, 1959, a licence was granted to respondent No. 3, M/s. Arun (Importers) Pvt. Ltd. Now, respondent M/s. Indodan Milk Products Ltd. by the Central Government in exercise of power conferred by Rule 1, 5(2) of the Registration and Licensing of Industrial Undertaking Rules. 1952 for the manufacture of milk products. The said Rules were framed under the Industries (Development & Regulation) Act. 1951 On or about 1st July, 1980, the Central Government launched the first `Operation Flood" for ensuring sufficient supply of milk to the four major cities of India, Delhi, Calcutta, Madras and Bombay and to enable the milk producers to get fair price and further with a view to reduce competition, better development, facilities for animal producing more milk. To give effect to the objectives of `Operation Flood' areas were ear-marked. Under the scheme milk-shed areas were also specified. For public sector milk scheme of Delhi was specified in operation flood and covered districts of Alwar and Bikaner of Rajasthan; Gurgaon in Haryana and Meerut. Ilullandshahar and Mathura in U.P. On or about 3rd June, 1972, the appellant was granted licence by the Central Government under Section 11 of the IDR Act for carrying on the business at Bharatpur for manufacture of skimmed/whole milk powder. While granting the aforesaid licence, the Central Government imposed the following, amongst other, conditions in the licence dated 3rd June, 1972. "2. That you do not encroach upon and draw milk from the milk shed area of public Sector Milk Schemes of Delhi as specified in Operation Flood'. While granting the aforesaid licence, the Central Government imposed the following, amongst other, conditions in the licence dated 3rd June, 1972. "2. That you do not encroach upon and draw milk from the milk shed area of public Sector Milk Schemes of Delhi as specified in Operation Flood'. Further you would not be allowed to draw milk from the Districts of Alwar and Bikaner in Rajasthan, Gurgaon in Haryana and Meerut. Bullandshihar and Mathura in U.P., which under 'Operation Flood' constitute the milk shed of Delhi Milk Scheme. 3. That you should draw milk only from Bharatpur, and such Districts other thin these included in (2) above with the specific approval of the Ministry of Agriculture and Chairman, Delhi Milk Scheme in order to ensure that there is no conflict of the milk sheds areas between the Public Sector Liquid Plants and the milk products factories in the public or private sector between the milk product factories inter so. 4. That you should undertake to develop product of milk in the milkshed areas through cattle improvement activities in such manner as may be prescribed by the Central or State Government from time to time." 4. In the year 1976 in exercise of the powers vested in the Legislature of the State of Uttar Pradesh and by virtue of and under the provisions of Art 246 (2) and (3) read with Entry 24 of list 11 and Entry 33 (a) of List III of Seventh Schedule to the Constitution of India, the Uttar Pradesh Milk Act, 1976 was enacted, which received the assent of the Governor of Uttar Pradesh on 10th April, 1976 and the same was published in the UP Gazette Extra-ordinary dated 17th April, 1976. Respondent No. 3 obtained a licence from the Board under Section 13 of the U.P. Milk Act, 1976. In the licence which was granted in favour of respondent No. 3, it was mentioned that the licensee would be entitled to collect and transport milk from Karana Regions Buddana Road, Muzzaffarnagar. By letter dated 28th November, 1984, the Government of Rajasthan, directed the appellants to submit to the State Government for approval and acceptance a detailed project report. It was also directed in the said letter that the appellant will collect milk only from Bharatpur and Dholpur districts and not from any other part of the State. By letter dated 28th November, 1984, the Government of Rajasthan, directed the appellants to submit to the State Government for approval and acceptance a detailed project report. It was also directed in the said letter that the appellant will collect milk only from Bharatpur and Dholpur districts and not from any other part of the State. In Jaruary 1985, respondent No. 3 established milk collect ion and chilling centre at Dholpur and Saipau (Rajasthan) from where the milk was transported to respondent No. 3's factory at Muzzaffarnagar (UP) for manufacture of milk products. On 16th January, 1985, a licence was granted by the Municipal Board, Dholpur under Rule 7 of the Rajasthan Prevention of Food Adulteration Rules, 1954 to respondent No. 3 for manufacture or sale/storage or sale/distribution of milk product by letter dated 12th February, 1985. the Industries Department of the Government of Rajasthan again emphasised that the milk shed areas of appellants comprise of Districts of Bharatpur and Dholpur. 5. The facts as stated above are not in dispute. The dispute arose when the letter dated 20th February, 1985 was addressed by the appellant to the Government of Rajasthan to reconsider condition No. 2 and the last para of letter dated 12th Feburary, 1985. The Government of Rajasthan considered the request made by the appellant and communicated its decision deleting condition No. 2 and last para of the letter dated 12th February, 1985, as was requested by the appellant vide letter dated 20th February, 1985. It may be stated here that a copy of the aforesaid decision was sent to the Collector, Dholpur for information and for taking an appropriate action with the direction then nobody else should opetate in the milk areas of Bharatpur and Dholpur earmarked for the appellant. In pursuance of the decision of the Government referred to above, the Collector by his order dated 6th May, 1985, directed that no other dairy other than the appellant will be entitled to purchase milk from Dbolpur District. Aggrieved by the said decision of the Government of Rajasthan communicated by its letter dated 22/27th March, 1985 and the order of the Collector & District Magistrate. Aggrieved by the said decision of the Government of Rajasthan communicated by its letter dated 22/27th March, 1985 and the order of the Collector & District Magistrate. Dholpur dated 6th May, 1985, respondent No. 3, filed S.B. Civil Writ Petition No. 883/1985, before this Court Though the appellant was a party who was affected by the aforesaid orders but for the reasons best known to respondent No. 3, he was not impleaded as a party. But this Court by its order dated 10th March, 1986, directed respondent No. 3 (the petitioner who filed S.B. Civil Writ Petition No. 883/1986), to implead the appellant as respondent No 3 in the said writ petition. 6. The respondents filed their returns and after hearing the parties, the learned Single Judge of this Court by his order dated 16th January, 1976, allowed the writ petition and passed the order referred to above. Being aggrieved by the aforesaid order of the learned Single Judge of this Court, dated 16th January, 1987, the appellant has preferred this special appeal under Section 18 of the Rajasthan High Court Ordinance. 1949. 7. In the writ petition the petitioner pleaded that the order of the Government dated 22/27th March, 1985 (Annx. 5) and the order of the Collector dated 6th May, 1985 Annx. 4) were arbitrary and without any authority of law. The case of the petitioner was that the orders Annx. 4 and 5 were not passed under any Act or Rules framed thereunder. Further the orders were not issued to achieve any public purpose whatsoever. It was also contented by the petitioner that the orders Annx. 4 and 5 were prohibitory in nature as they prohibited the petitioner from carrying on trade and commerce of milk and thereafter manufacturing of milk products from the milk purchased by them. The main grievance of the petitioner was that by the impugned orders the Government of Rajasthan has tried to give under benefit to the appellant to the total exclusion of all other dairies functioning in the District of Dholpur. In fact, the aforesaid orders created monopoly in favour of the appellant. The petitioner challenged the said orders on the ground that they violated the guarantees given to the petitioner under Articles 19 (a) (g) of the Constitution. It was further emphasised by the petitioner that the restrictions created by Annx. In fact, the aforesaid orders created monopoly in favour of the appellant. The petitioner challenged the said orders on the ground that they violated the guarantees given to the petitioner under Articles 19 (a) (g) of the Constitution. It was further emphasised by the petitioner that the restrictions created by Annx. 4 and 5 on the freedom of trade and commerce which the petitioners were carrying on, were completely unreasonable having no nexus with the object which is sought to be achieved through the impugned orders Annx. 4 and 5. Total violation of Articles 301, 302, 301 and 304 of the Constitution was also pleaded. 8. In the reply filed by M/s. Dalmia Dairy Industries Ltd. to the writ petition. it was disclosed and pleaded that M/s. Dalmia Dairy Industries Ltd. is engaged in the production of milk products which are sold in Rajasthan and other parts of the country. It was pleaded by M/s Dalmia Dairy Industries Ltd. that respondent No. 1 State of Rajasthan was fully authorised under Section 25 of the IDR Act, 1951 to pass such orders it was contended that the allegation that the order will result in creation of monopoly in favour of M/s. Dalmia Dairy Industries Ltd. is absolutely wrong. 9. Respondents No. 1 and 2 in their reply have submitted that as soon as they came to know about the operation of collecting milk for milk products of the petitioner, the Deputy Secretary to the State Government by its letter dated 27th March, 1985, directed the Collector and the Collector in pursuance of the said order of the State Government, passed the impugned order dated 6th May, 1985. 10. The learned Single Judge held that in the absence of any order passed by the Central Government in exercise of the powers conferred under various clauses of Section 18 read with Section 25 of the IDR Act, it will have to be presumed that the State Government was not competent to pass any order under Section 26 of the said Act. The learned Single Judge further observed that Section 18 (f) empowers the Central Government to pass any order for securing the equitable distribution and availability of any article at fair price or class of article relatable to any schedule industry. The learned Single Judge further observed that Section 18 (f) empowers the Central Government to pass any order for securing the equitable distribution and availability of any article at fair price or class of article relatable to any schedule industry. It was thus held by the learned Single Judge that any direction under Clause (1) or clause (2) can be issued only to an industry and not to a person who is producer of the raw-material. Though, this aspect of the matter was dealt, but on final decision was given by the learned Single Judge on this point. It was finally held by the learned Single Judge that the directions given in Annx. 5, dated 22/27th March, 1985, to the Collector Dholpur to take appropriate action and not to allow any body to operate in the milk shed area of Dholpur, was bad in law. Since the impugned order Annx. 4 was a consequential order passed in pursuance of the order of the Government, the learned Single Judge held that the order of the Collector automatically became illegal. 11. In the special appeal, it was contended by the appellant M/s. Dalmia Dairy Industries Ltd., that the power of the State Government to issue the order dated 22/27th March, 1985 and the consequential order dated 6th May, 1985 was in no way circumscribed and/or limited and or controlled, and/or subject to the application of power by the Central Government under Section 25 of the IDR Act, or the direction issued under Section 26 of the said Act. It is also contended that even dehors control of the scheduled industry by the Central Government under the IDR Act, it is open to the State Government to legislate and issue executive directions or orders relating to the scheduled industries. It is also contended that even dehors control of the scheduled industry by the Central Government under the IDR Act, it is open to the State Government to legislate and issue executive directions or orders relating to the scheduled industries. The main contention of Shri Aruneshwar Gupta and Shri A.K. Sharma, learned counsel for the appellant is that by virtue of Article 12 of the Constitution the executive of the State of Rajasthan was empowered to issue orders and/or direction as are contained in the impugned orders, Annxs 4 and It is emphatically contended by the learned counsel for the appellant that by virtue of Article 162 of the Constitution, the executive power of the State extends to the matters with respect to which the Legislature of the State has power to make law and, therefore, if the State has legislative competance to enact a legislation to regulate the collection of milk-by milk product industries it is always open to the executive to issue orders and directions regulating the same. The grievance of the appellant is that the learned Single Judge erred in not appreciating that the demarcation of Bharatpur and dholpur as milk shed areas for the appellant was regulatory and compensatory measures provided by the Central Government by virtue of and under the powers vested in it, and the Government of Rajasthan had issued order dated 22nd/27th March, 1985 in furtherance of the said objective and complementing and/or in consonance with the said compensatory and regulatory measure by virtue of powers vested in it in furtherance of the interest of public Shri Gupta, learned counsel for the appellant, hoe also submitted that the State Government has legislative competence to regulate the flow of milk i.e, raw-material to the appellant Industry dehors the provisions of the ID Act. 1951. In order to support his contention, Shri Gupta has placed reliance on (1) Tika Ramji v. State of U.P., ( AIR 1956 SC 676 ) , (2) State of M.P. v. Bharat Singh ( AIR 1967 SC 1170 ) . (3) lshwari Khetan Sugar Mills v. State of U.P. (AIR l980 SC 1955 , and (4) M/s. Southern Synthetics Ltd v. State (FB) ( AIR 1982 Mad. 339 ) . Shri Gupta also placed reliance on (5) Ramjeewaya Kuper V/s State of Punjab, ( AIR 1955 SC 549 ) . (6) Prof. (3) lshwari Khetan Sugar Mills v. State of U.P. (AIR l980 SC 1955 , and (4) M/s. Southern Synthetics Ltd v. State (FB) ( AIR 1982 Mad. 339 ) . Shri Gupta also placed reliance on (5) Ramjeewaya Kuper V/s State of Punjab, ( AIR 1955 SC 549 ) . (6) Prof. Mahesh Kumar V/s Principal L L.R.M. Medical College ( AIR 1987 SC 400 ) , to substantiate his contention that when the State Government has power to legislate, the State Government has also the power to issue executive orders by virtue of Article 162 of the Constitution until the legislation is enacted. 12. Shri Gupta learned counsel for the appellant deviating from the plea which the appellants' had taken before the learned Single Judge or before this Court in the memo of special appeal contended that production supply and distribution of milk is governed by Entry 27 of list II, Seventh Schedule & improvement, growth and development of dairy is covered by Entry 15, List II. Seventh Schedule Improvement, growth and development of a dairy and animal husbandry, which is part of milk food industries does not fall within the parameters of IDR Act and the State is, therefore, competent to enact with respect to the same. As this is a new point, we shall deal with it later on. 13. Shri Surana and Shri R P. Garg, learned counsel for the respondent No. 3 have submitted that the Parliament has exclusive right to legislate on the subjects regarding entries of 1st list of 7th Schedule of the Constitution and the matter in issue is covered by the various provisions of IDR Act, which has been legislated by the Parliament under Entry 52 of List-I of Seventh Schedule. The State Legislature has no power to legislate in the said matter because Entry 24 of lind list of the Seventh Schedule is subject to the provisions of the Entries 7 and 52 of List 1 Shri Surana further submitted that even if the acts of the executive are taken to be sanctioned by the Legislature, yet they can be declared void and inoperative if they infringe any of the fundamental rights guaranteed to a citizen under Part-III of the Constitution. Shri Surana also emphasised that even executive order cannot be passed if the field is already covered by a statute made by a legislature. Shri Surana also emphasised that even executive order cannot be passed if the field is already covered by a statute made by a legislature. He also submitted that executive orders cannot operate to the prejudice of the citizen and they are to respect the statutory rules or enactment on the matter and/or constitutional guarantees enshrined in the Constitution. Regarding new point Shri Surana submitted that the appellant should not be allowed to raise this point and further no merit and it is not tenable. 14. It may be mentioned here that appellant M/s. Dalmia Dairy Industries Ltd., justified the impugned orders under Section 25 of the ILR Act, 151 and from the judgment itself it is clear that when the appellant failed to justify the impugned orders under Section 25 of the said Act, arguments were advanced before the learned Single Judge to justify the impugned orders under Section 26 of the said Act. As regards Section 2 the learned Single Judge held that the impugned orders cannot be justified under Section 25 of the IDR Act on the ground that the notified orders or the order deregating powers under Section 25 to the State Government to pass such orders could not be produced by the State or the present appellant. As regards Section 26, the learned Single Judge held that the provisions of Section 26 are not attracted on the ground that the said section remains totally inoperative till a notified order is issued under Section 25 of the IDR Act. 15. Before us the impugned orders are being justified on the ground that the impugned orders are covered under Article 162 of the Constitution inasmuch as the State Govt. on the executive side had the authority to pass such orders. The contention of Shri Gupta is that the executive of the State Government is empowered to issue orders with respect to any matter on which the State is empowered to legislate. The impugned orders ate in the matter of food-stuffs and the order is to regulate the distribution and supply of food-stuff. In this regard, the State Government is competent to legislate and if the State Government has not enacted any legislation certainly in the absence of such legislation the executive is empowered to issue administrative instructions or administrative orders and it will have the same effect, as if the same were enacted by a competent legislature. In this regard, the State Government is competent to legislate and if the State Government has not enacted any legislation certainly in the absence of such legislation the executive is empowered to issue administrative instructions or administrative orders and it will have the same effect, as if the same were enacted by a competent legislature. We have narrated these facts to highlight that the stand taken by the appellant is not consistent. Before we examine the legal position involved in the case. once again we would like to consider some relevant facts. Licence was granted to respondent No. 3 for manufacture of milk food or milk products on 5th October, 1970. Respondent No. 3 factory is at Muzzafarnagar (UP). First `Operation Flood' was launched on 1st July, 1970 Licence was granted by the Government of India. Ministry of Industrial Development to the appellant for carrying on this business at Bharatpur (subsequently bifurcated to Bharatpur and Dholpur) for manufacture of skimmed/whole milk powder subject to the conditions No. I to 4 set out in the Licence and referred to above. In 1976 U.P. Milk Act, 1976 was enacted and licence was granted to respondent No. 3 under Section 13 of the U.P. milk Act 1971". Licence was granted to respondent No. 3 by the Municipal Board, Dholpur under Rule 7 of the Rajasthan Prevention of Food Adulteration Rules, 1954 for sale/distribution of milk. The Government of Rajasthan deleted Condition No. 2 and the last para of letter dated 12th February, 1985 and instructed the Collector, Dholpur that nobody other than the appellant should operate the milk shed area. The Collector vide his order dated 6th May, 1985, directed that no other dairy other than the appellant would be entitled to purchase milk from Dbolpur district and export the same. 16. On 31st October, 1951, the Parliament enacted Industrial Development Regulation Act, 1951 to provide for the development and regulation of certain industries. By Section 2 of the said Act it was declared that it was expedient in the public interest that the Union should take under its control the industries specified in the first schedule which includes Item No. 27 thereof i. e. industry engaged in the manufacture or production of milk foods. On 1st April, 1955 the Parliament enacted the Essential Commodities Act. On 1st April, 1955 the Parliament enacted the Essential Commodities Act. 1955 to provide in the interest of general public for the control of production, supply and distribution and trade and commerce in commodities: 'Essential commodity' has been defined to mean food-stuff including edible oils, oils and other classes of commodities which the Central Government may be notified order declare to be an essential commodity for the purpose of the said Act. Being a commodity with respect to which the Parliament has power to make laws by virtue of entry 23 in List-III of 7th Schedule to the Constitution. It is not disputed before us that licence was issued to the appellant and to respondent No. 3 under the provisions of IDR Act, 1951. It is a central legislation and U.P. Milk Act, 1976 is the State enactment and the licence was also granted in favour of respondent under the Rajasthan Prevention of Food Adulteration Rules, 1954, which are framed by the State Government under the provisions of the Central Act. 17. The learnd counsel for the parties have cited a number of authorities to which we have made reference in the foregoing paras. We are not referring all the cases as in our opinion, reference of all the cases will unnecessarily burden the judgment. However, we are referring some judgments of the Supreme Court which are relevant for the decision of this case. 18. In Tika Ramji v. State of U.P. (Supra), the validity of the U.P. Sugar-cane (Regulation of Supply and Purchase) Act, 1953, was challenged. It was contended that the State of U.P. had no power to enact the impugned Act as the Act was with respect to such an industry, the control of which by the Union was declared by Parliament by law to by expedient in the public interest within the meaning of Entry 52 of List-I and was therefore the exclusive province of Parliament to oppose the validity of the Act, it was stated by the petitioner that even though the impugned act purports to legislate with respect so sugarcane required for use in sugar factories. It was in pith and substance in its true nature and effect the Legislation with regard to sugar industry which had been declared by the IDR Act, 1951 to be an industry, the control of which by the Union was declared in public interest and was, therefore within the exclusive province of Parliament under Entry 52 of List-I. It was also contended that the word 'industry' was of a very wide import and it included not only the process of manufacture or production, but all goods which are essential and incidental to it viz., the raw-materials for the industry as also the products of the industry. 19. It was contended by the State that the impugned Act was within the competence of the State Legislature. The Supreme Court in that case held that there was no question whatsoever of its trenching upon the jurisdiction of the Centre in regard to sugar industry which was a controlled industry within Entry 52 of List I and the U.P. Legislature had jurisdiction to enact the law with regard to sugarcan- and had legislative competence to enact the impugned Act. It was also held that after the declaration made by the Parliament in 1951 by the IDR Act, the Sugar Industry had become a controlled industry and the products of that industry i.e. Sugar was comprised in Entry 33 of List-III taking it within Entry 27 of List-II. It was also held that the Centre as well as the provincial legislature had concurrent jurisdiction with regard to the same. In Ishwari Khetan Sugar Mills v. State of UP (AIR 1983 SC 1955) , the Supreme Court held that before state Legislature is denuded of power to legislate under Entry 24, List II in respect of a declared industry, the scope of declaration and consequent control assumed by the Union must be demarcated with precision and then to as certain whether the impugned State legislation trenches upon the excepted field. In (7) M/s. Bishamber Dayal Chandra Mohan v. State of U.P., ( AIR 1982 SC 32 ) , it was observed by the Supreme Court that the State Government cannot while taking recourse to the executive power of the State under Article 162 deprive a person of his pro party. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Such power can be exercised only by authority of law and not by a mere executive fiat or order. It was further observed that Article 162 is clear in this regard as from the opening words, it is clear that it is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Art 300-A.In State of M.P. v. Bharat Singh, ( AIR 1967 SC 1170 ) , the Supreme Court considered the scope of Article 153 and 73 of the Constitution of India and observed that these Articles are concerned primarily with distribution of executive power within the Union on the one hand and the States on the other and not with validity of its exercise. It was also observed that State or its officers in exercise of its executive authority cannot infringe the rights of citizens merely because the Legislature of the State has power to legislate in regard to the subject on which executive order is passed. 20. From the discussions made above and from the proposition of law laid down by the Supreme Court and other High Courts in various judgments referred to above it is clear that it would be reasonable to hold that to the extent the Union acquired control by virtue of declaration under Section 2 the IDR Act, 1951, the power of the State Legislature under Entry 24 List II to enact any legislation in respect of declared industry so as to encroach upon the field of control occupied by IDR Act would be taken away. It is clear that the matter in controversy is covered by the various provisions of the IDR Act which has been enacted by the Parliament under Entry 52 of List I of 7th Schedule. Licences were granted to the appellant and respondent No. 3 under the various provisions of Law and in view of the proposition of Law laid down by the Supreme Court in Tika Ramji v. State of U.P. (Supra) all the enactments are valid and within the competence of the Legislature to enact the same. IDR Act, 1951 as stated above has been enacted by Parliament under Entry 52 of List-I and Essential Commodities Act has been enacted by Parliament under Entry 33 of List III. IDR Act, 1951 as stated above has been enacted by Parliament under Entry 52 of List-I and Essential Commodities Act has been enacted by Parliament under Entry 33 of List III. These two enactments deal with different matters relating to industries and essential commodities The two enactments have conferred all powers on the Union or the authorities there of and consequently the executive power of the State Government is completely subject to the executive power conferred on the Union by the specific enactment. It is also clear that any act done by the Government or by its officers should be done in such a way that it does not operate to the prejudice of any person and the executive act of the Government does not infringe the constitutional safe-guards or the guarantees provided under the Constitution. it is also clear from the above discussions that even in the absence of legislation on a subject the executive of the Government can govern by means of administrative directions provided those directions do not harm or injure the rights of the citiznes. 21. Coming to the facts of the case, it is clear that Annexures 4 and 5 put complete restrictions on the rights of respondent No. 3 to take milk from the Dholpur District and gives almost monopoly rights to the appellant to operate in the milk shed area of the Dholpur District Undoubtedly, Annexures 4 and 5 affect the fights of respondent No. 3 to its prejudice. In other words, the prohibitory directions contained in Annexures 4 and 5 created monopoly in favour of the appellant. We are of the opinion that a monopoly cannot be created by an executive order From Article 19 (6) of the Constitution it is evident that monopoly can be created only by Law made in the interest of general public or in favour of the State or a corporation owned be controlled by the State. We are also of the opinion that the directions contained in Annexures 4 and 5 will operate to the prejudice of respondent No. 3. The directions contained in Annexures 4 and 5 would infringe the fundamental rights to carry on business as guaranteed under Article 19 (1) (g) of the Constitution. We are also further of the opinion that the field of operation is held by IDR Act and other enactments, referred to above. The directions contained in Annexures 4 and 5 would infringe the fundamental rights to carry on business as guaranteed under Article 19 (1) (g) of the Constitution. We are also further of the opinion that the field of operation is held by IDR Act and other enactments, referred to above. As such, the executive powers cannot be exercised when the field is already covered. Thus, the impugned order cannot be substained. 22. Coming to the new point raised by the learned counsel for the appellant while making his submissions in rejoiner. The contention is that the State Government has the legislative competence to regulate and control the improvement, growth and development of dairy and animal husbandary in the State of Rajasthan as the same is not expressly covered or declared by any of the provisions of IDR Act or the Essential Commodities Act, 1955. The order dated 12/27-3-1985 and 6/5/1985 are, therefore, not circumscribed and/or limited and /or controlled and/or subject to the provisions of Sections 18G, 25 and 26 of the IDR Act or the provisions of the Essential Commodities Act, 1955. Merely by the enactment of IDR Act or Essential Commodities Act, 1955, the State Legislature is not denuded of its powers to legislate with respect to improvement, growth and development of dairy industry in the State, improvement, growth & development of a dairy which is part of milk food industry does not fall within the para-meters of IDR Act and therefore the State of Rajasthan is competent to enact with respect to the same. Further case of the appellant is that by the impugned order dated l2/27th March, 1985 the State Government had tried to resolve and/or sort out dispute arising out of violation of milk shed areas of appellants and Rajasthan Co-operative Dairy Federation and had also constituted a committee to resolve these disputes such an action of the State Government was also related to and connected with the growth and development of dairy in the state of Rajasthan and, therefore well within its legislative competence. There can be no dispute that the contention, thus, raised in the rejoinder have no bearing on the pleadings and making out a new case at the appellate stage without proper pleadings should not be allowed. However, there appears to be no merit in this contention of the learned counsel for the appellant. There can be no dispute that the contention, thus, raised in the rejoinder have no bearing on the pleadings and making out a new case at the appellate stage without proper pleadings should not be allowed. However, there appears to be no merit in this contention of the learned counsel for the appellant. In this writ petition, we were required to decide about the legality of the order dated 22/27th March, 1985. passed by the Government of' Rajasthan and the order of the Collector dated 6th May, 1985, directing that no other dairy other than the appellant will be entitled to purchase milk from Dholpur District. We have already held that the impugned orders are in the matter of food-stuffs and the order is to regulate' the distribution and supply of food stuff. We have also held that the matter is controversy is covered by to provisions of the IDR Act, which has been enacted by the Parliament under Entry 52 of List I of Seventh Schedule and Essential Commodities Act has been enacted under Entry 33 of List III. Licences were granted to the appellant and the respondent No. 3 under the provisions of law. These two enactments deal with different matters relating to industries and essential commodities. They have conferred all powers on the Union or the authorities thereof and consequently the executive power of the State is completely subject to the executive powers conferred on the Union by the specific enactment. We have also held that prohibitory directions contained in the impugned orders are in the nature of monopoly in favour of the appellant. The impugned orders are prima facie completely outside the, subject matter of Entry 15 of List It of Seventh Schedule. 23. There is no merit in the contention of the appellant, if we examine the impugned orders in the back-drop of the fact, and circumstances. The appellant was granted licence as far as on 3rd June, 1972 and under the garb of the impugned orders the appellant seek a total monopoly of the product of milk to the exclusion of all other persons including the respondents and hopelessly want to justify the impugned orders under cattle improvement activities. The appellant was granted licence as far as on 3rd June, 1972 and under the garb of the impugned orders the appellant seek a total monopoly of the product of milk to the exclusion of all other persons including the respondents and hopelessly want to justify the impugned orders under cattle improvement activities. As already discussed, the respondent No. 3 can only be prohibited from purchasing milk from Bharatpur District, if an order is issued by the Central Government under Section 25 of IDR Act or similar notified order is issued by the State Government after having been duly authorised by the Central Govt. The plea raised by the appellants that they had undertaken cattle improvement activities to fulfil the condition of licence and thus have exclusive right to purchase all available milk in Bharatpur District in no manner justifies a monopoly in favour of the appellants in lieu of their undertaking the cattle improvement activities, as monopoly can only be created, as held by us, by law and not by an executive order. 24. The upshot of the discussions is that there is no merit in the appeal. 25. In the premise No aforesaid, the special fails and is dismissed. There shall, however, be no order as to costs.Appeal dismissed. *******