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2012 DIGILAW 776 (ALL)

MOTIRAM MANOHARLAL v. STATE OF U. P.

2012-03-30

AMITAVA LALA, P.K.S.BAGHEL

body2012
JUDGMENT By the Court.—These petitions under Article 226 of the Constitution impugned the validity of the Government Orders dated 2.6.2008, 20.11.2008 and 24.12.2008 issued by the State Government whereby certain directions have been issued inter alia for installation of dispensing units through which the kerosene is to be sold. The Government Order dated 20.11.2008 extend the earlier time fixed to 31.3.2009. The third Government Order dated 24.12.2008 is also a consequential order whereby it was made clear that in case the directions issued in earlier Government Orders is not complied with the penal action shall be taken against the earring dealers. 2. As common question of law are involved and the facts of the cases of batch of writ petitions are also similar, the above writ petitions are being disposed of by a common judgment. 3. Before we advert to the legal question, we may briefly set out the facts in the background. We shall refer the facts of the Writ Petition No. 16929 of 2009 (M/s Motiram Manoharlal and others v. State of U.P. and others) as a lead petition. 4. The petitioners are the wholesale dealers they have their license under provision of U.P. Kerosene Control, 1962. They have their sale Depots./Godown in different places in district of Mahamaya Nagar they are supplied kerosene oil by Oil Companies. The State Government issued aforementioned three Government Orders i.e. Dated 2.6.2008 (Annexure-3 to the writ petition); 20.11.2008 (Annexure-4 to the writ petition) and 24.12.2008 (Annexure-5 to the writ petition) whereby they have been directed to instal dispensing units for the sale of kerosene. The petitioners state that they are supplying oil to their fair price shop keepers and they do not have any direct public dealing. There was no need at all for installing dispensing unit. The said unit is used by retail dealers as they sell directly to the public. The petitioners are distributing through filter machine, therefore there is absolutely no requirement of installation of dispensing unit. They further state that the dispensing unit will cost them about Rs. 2,50,000/- and as such it imposes unreasonable restrictions on their trade/business inviting the wreath of Article 19 (1) (g) of the Constitution. The petitioners are distributing through filter machine, therefore there is absolutely no requirement of installation of dispensing unit. They further state that the dispensing unit will cost them about Rs. 2,50,000/- and as such it imposes unreasonable restrictions on their trade/business inviting the wreath of Article 19 (1) (g) of the Constitution. In some of the petitions the petitioners in addition to aforesaid grievance are also aggrieved by one of the requirement of the Government Order that all the wholesale dealers must have storage capacity of minimum 20 Kilo Litre kerosene oil. 5. We have heared Sri Ravi Kant learned Senior Adovcate assisted by Sri Tarun Agarwal, Sri H.R.Mishra learned Senior Advocate assisted by Sri Mahesh Narain Singh and Sri Ram Niwas Singh learned counsel for the petitioners and Sri Jaffar Naiyar Additional Advocate General assisted by Sri Ravi Shanker Prasad, and Sri Ramanand Pandey, learned Standing Counsel. 6. Sri Ravi Kant learned Senior Counsel submitted that the impugned Government Orders are nonest having been issued without semblance of authority in the State Government to do so. He further submitted that the U.P. Kerosene Control Order, 1962 is a complete code. The wholesale dealers do not deal with the public and it is the only retail dealers who sell the kerosene oil to the public as such both of them cannot be treated equally. The impugned Government Orders treats unequivocally therefore it is violative of Article 14 of the Constitution. The aforesaid orders per se imposes wholly unreasonable restrictions and the right of trade has guaranteed by Article 19 (1) (g) of the Constitution, therefore Government Orders are wholly unreasonable. 7. Sri Ravi Kant learned Senior Counsel has relied on the following judgments : State of U.P. v. Daulat Ram Gupta, (2002) 4 SCC 98 ; Government of Andra Pradesh and others v. M.T. Khan, (2004) 1 SCC 616 ; Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 ; Humanity v. State of West Bengal, (2011) 6 SCC 125 . 8. Sri H.R.Mishra learned Senior Counsel submitted that the State Government does not have power to issue the various orders under the Essential Commodities Act dealing with the Kerosene oil. As the Kerosene oil is governed by the provisions of the Petroleum Act, 1994 and it falls into the category of Petroleum Clause “B”. 8. Sri H.R.Mishra learned Senior Counsel submitted that the State Government does not have power to issue the various orders under the Essential Commodities Act dealing with the Kerosene oil. As the Kerosene oil is governed by the provisions of the Petroleum Act, 1994 and it falls into the category of Petroleum Clause “B”. Sri Mishra has further urged that the Regulation of petroleum and petroleum products and development is exclusively mentioned in Act Entry No. 53 of List I (Union List of the VII Schedule of the Constitution) therefore, it is only the Parliament which has exclusive power to make the law with respect to the Regulation of petroleum and petroleum products. He strenuously urged that all the three impugned Government Orders have been issued by the State Government without any power and only the Central Government has exclusive power to deal with the petroleum products. Therefore, the impugned Government Orders are nullity. 9. Sri Mishra has relied on the judgments of the Supreme Court (1995) 6 SCC 50 ; (2010) 11 SCC 557 and (2007) 2 SCC 1 . 10. Sri Ram Niwas Singh urged that the State Government had no authority to issue the Government Orders imposing the certain conditions without amending the U.P. Kerosene Control Order, 1962. He has placed reliance on the judgment of the Supreme Court Union of India and others v. International Trading Co. and another, AIR 2003 SC 3983 in Cooverjee B. Bharucha v. Excise Commissioner, AIR 2003 SC 3983 and the Chief Commissioner, Ajmer and another, AIR 1954 SC 220 ; Oudh Sugar Mills Ltd. etc. v. Union of India and others, AIR 1970 SC 1070 and State of U.P. and others v. Vam Organic Chemicals Ltd. and others, 2004 (1) SCC 225 . 11. Sri Jaffar Naiyar learned Additional Advocate General in reply to aforesaid submission has urged that Section 4 of the Essential Commodities Act, 1955 imposes duties on the State Government for proper supply and distribution of the essential commodities. Sri Jaffar Naiyar learned Additional Advocate General has relied on the judgment of a Division Bench of this Court in WP No. 6067 (M/B)/08 U.P. Kerosene Dealers Association through its President v. State of U.P. and another, decided on 18.7.2008 and WP No. 1252 (M/B)/09 Ram Kumar Agnihotri v. State of U.P. decided on 5.2.2009. 12. In the said judgment the same impugned order viz. 12. In the said judgment the same impugned order viz. dated 2.6.2008 and consequential Government Order were challenged. The Division Bench of this Court dismissed the writ petitions holding that the Government Orders are not arbitrary and illegal. Learned counsel for the petitioners have not brought to the notice of this Court that the said order of the coordinate Bench has been stayed by the Supreme Court or any Special Leave Petition is pending against the said order. 13. We have heard learned counsel for the parties at length and have considered the rival submissions. 14. Before adverting to the legal issues raised by the rival parties we can take a bird’s eye view of the Legislative history of the Essential Commodities Act and the various orders issued by the Central Government and and the State Government. 15. On 1st April, 1955 the Essential Commodities Act 1955 (Act No. 10) was enacted by the Parliament exercising it s power by virtue of Entry 33 in List 3 in the Seventh Schedule of the Constitution. The object of the said Act is in the interest of general public for the control of production, supply and distribution of, and trade and commerce, in certain commodities. It is noteworthy that the said Act has been placed in Ninth Schedule at Serial No. 126 of the said Scheduled. The essential commodities was defined to mean any of the classes of commodities “(v) food stuffs, including edible oil seeds and oil; (xi) any other class commodity which the Central Government may, by notified order declare to be an essential commodity for the purposes of this Act. 16. Section 3 of the Essential Commodities Act provides that for securing equitable distribution and availability of the essential commodities it may issue Orders for regulating or prohibiting the production, supply and distribution. Sub.Section 2 of Section 3 empowers the State Government to issue Orders for the same purposes. The State Government exercising its power under Section 3 of the Essential Commodity Act has framed the Orders known as U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution Order),1977. The said Order was published in the U.P. Gazette, Extraordinary dated 19th September, 1977. The object of the said Order was to maintain the adequate supply and timely distribution of the commodities to the public at large. The said Order was published in the U.P. Gazette, Extraordinary dated 19th September, 1977. The object of the said Order was to maintain the adequate supply and timely distribution of the commodities to the public at large. By the said Order the State Government intended to regulate the distribution of Scheduled Commodities by the manufacturer, producer or distributors. The other objective of the State Government was to prevent the black marketing and short weighting in public interest for benefit of common man. 17. Sub.Clause (f) of Clause 2 of the Control Order, 1977 defines the Scheduled Commodities and the Kerosene oil defines at Item No. 13 of the said Scheduled. 18. Clause 9 of the Control Order, 1977 enjoins that the State Government may by order regulate the distribution of Scheduled Commodities by any manufacturer, producer or distributor. For the sake of convenience Clause 9 is extracted hereunder : “1. The State Government may by Order regulate the distribution of a Scheduled Commodity by any manufacturer, producer or distributor in such supply area or areas and in such manner as may be specified.” 2........................................... 3............................................. 19. The State Government has also framed U.P. Kerosene Control Order, 1962 to deal with the license and distribution of the Kerosene oil. The Control Order, 1962 has been framed primarily to regulate the reregistration on sale and storage, price control and license, its renewal etc. The Central Government in exercise of power conferred by Section 3. of Essential Commodities Act, 1955 has also framed Kerosene (Restriction on use and Fixation of Ceiling Price) Order 1993. 20. From the perusal of the various clauses of Order, 1993 it is manifest that the main object of the order, 1993 is to prevent parallel marketing system and mis-use of the Kerosene oil meant for general public from sale in the open market by providing a chemical substance approved by the Central Government for blending in Kerosene and other petroleum products with the objective of preventing their diversion or adulteration of motor spirit or high speed diesel and other petroleum products. 21. After having noticed the above statutory provisions, now we will consider the submissions made by Sri Ravi Kant learned Senior Counsel that the State Government has no power to issue the Government Order, is not acceptable. The Essential Commodities Act was enacted in exercise of concurrent jurisdiction under Entrey 33 List 3 of the Seventh Scheduled. 21. After having noticed the above statutory provisions, now we will consider the submissions made by Sri Ravi Kant learned Senior Counsel that the State Government has no power to issue the Government Order, is not acceptable. The Essential Commodities Act was enacted in exercise of concurrent jurisdiction under Entrey 33 List 3 of the Seventh Scheduled. Thus the said Legislature has a power to regulate the law in respect of foodstuffs. This issue is no more res integra as the Supreme Court in the case of Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39 at page 57 has held : “22. The Essential Commodities Act, 1955 was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33, List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder. The State legislature, therefore, could still make a law on the subject regulating trade and commerce in, and the production, supply and distribution of “foodstuffs” and the only question that would arise is one of repugnancy dealt with in Article 254 of the Constitution. The executive power of the State being co-extensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject “foodstuffs”, trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in proviso to Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.” (italicised by us) 22. As regards the submission of Sri Ravi Kant learned senior counsel that without amending the Control order the State Government could not have issued the directions contained in the Government Order, the Supreme Court in the same judgment has dealt with the said submissions. The relevant portion of the judgment is extracted hereunder : “21. As regards the submission of Sri Ravi Kant learned senior counsel that without amending the Control order the State Government could not have issued the directions contained in the Government Order, the Supreme Court in the same judgment has dealt with the said submissions. The relevant portion of the judgment is extracted hereunder : “21. In Ram Jawaya Kapur case it was contended that the executive power of the State did not extend to the carrying on of trade of printing, publishing and selling of textbooks for schools unless such trade was authorised by law. In repelling the contention, Mukherjea, C.J. speaking for the Court, observed: (at SCR p. 236) “Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.” (italicised by us) 23. One of the submission of Sri Ravi Kant was that the State Government has no power to issue the direction in respect of the Kerosene oil as the Central Government has framed, 1993 Orders. The same argument were raised in the matter of Sarkari Sasta Anaj Vikreta Sangh v. State of M.P., (1981) 4 SCC 471 at page 476, the Supreme Court held as under : “Merely because concurrence of the Central Government was needlessly obtained on an earlier occasion, the State Government was not obligated to obtain the concurrence of the Central Government whenever again there was an amendment of the Control Order” (italicised by us) 24. In same judgment Supreme Court noted as follows : “16. It is now well established that the Central Government’s executive power extends to the same subjects and to the same extent as that of Parliament, as long as it does not infringe any provision of any law made by Parliament or of the Constitution. In same judgment Supreme Court noted as follows : “16. It is now well established that the Central Government’s executive power extends to the same subjects and to the same extent as that of Parliament, as long as it does not infringe any provision of any law made by Parliament or of the Constitution. In Rai Sahib Ram Jawaya Kapur v. State of Punjab, this Court has observed (vide AIR para 12): (SCR pp. 235-36) “It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.” Hence, we are unable to accept the contention that the Central Staffing Scheme is unconstitutional.” (italicised by us) 25. With regard to submissions of Sri Ravi Kant learned senior counsel that no Government Order can be issued by the State Government without amending the order itself, we do not agree with the said submissions. Under Article 166 the State Government executive power extends to the same subjects and to the same extent as that of Legislature as long as it does not infringe any provision of any law or the Constitution. Under Article 166 the State Government executive power extends to the same subjects and to the same extent as that of Legislature as long as it does not infringe any provision of any law or the Constitution. Sri Ravi Kant learned senior counsel failed to point out that the impugned Government Orders was repugnant to any Legislation enacted by the State Government or the Central Government. It is note worthy that the Constitution has not recognised the doctrine of separation power in its absolute rigidity. 26. The Supreme Court in the case of Naraindas Indurkhya v. State of M.P., (1974) 4 SCC 788 , has held as under : “It is now well settled by the decision of this Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab, that the State Government can act in exercise of executive power in relation to any matter with respect to which the State Legislature has power to make laws, even if there is no legislation to support such executive action, but such executive action must not infringe the rights of any person. If the executive action taken by the State Government encroaches on any private rights, it would have to be supported by legislative authority, for under the rule of law which prevails in our country every executive action which operates to the prejudice of any person must have the authority of law to support it.” (italicised by us) 27. The petitioners could not point out that impugned Government Order are repugnant to any legislative enactment of Union or State Government. We are of the view that impugned Government Orders are not arbitrary or illegal. The directions issued by the State Government do not suffer from any illegality and it was well within the power of the State Government to issue such direction in the interest of the consumers. The view taken by us is, in concordant with a series of decisions of the Supreme, as referred above. 28. Hence we are unable to accept any of the aforementioned submissions of Sri Ravi Kant learned senior counsel for the petitioners. 29. Now we shall deal cases cited and relied by Sri Ravi Kant learned senior counsel for the petitioners. 30. 28. Hence we are unable to accept any of the aforementioned submissions of Sri Ravi Kant learned senior counsel for the petitioners. 29. Now we shall deal cases cited and relied by Sri Ravi Kant learned senior counsel for the petitioners. 30. In the case of Government of Andra Pradesh and others v. M.T.Khan, (2004) 1 SCC 616 , two prisoners who were convicted in Madhya Pradesh and Maharashtra were transferred in the State of Andra Pradesh. The Governor of Andra Pradesh in exercise of clemency power under Article 161 of the Constitution granted remission to prisoners convicted by the Courts. By the said order it was provided that unexpired sentences of different category of the prisoners convicted by the Courts in the State of Andra Pradesh shall be released. The same benefit was extended to those prisoners who were aged more than 65 years and have undergone more than five years of actual sentence. One of the prisoner who was convicted by the Sessions Judge, Bastar at Jagdalpur, Madhya Pradesh and was transferred to the Vishakapatnam jail in Andra Pradesh and another convict Rajendra who was convicted under Section 302 IPC and sentenced to imprisonment for life by the Sessions Judge, Thane, Maharashtra and later on he was transferred in the Central Prison Warangal in the state of Andra Pradesh filed the writ petition challenging the order of the Governor for excluding them from the benefit extended to the prisoners of the State who were more than 65 years and have undergone more than 5 years of actual sentence. The Supreme Court in the said case has held that while acting under Article 161, the Governor has to act on the advice of the Council of Ministers, and the “appropriate Government”, so far as granting of remission to prisoners who were undergoing sentences in a particular State but had been convicted in another State were concerned, is the Government within whose territorial jurisdiction the said convicts are convicted. The facts of the case are wholly distinguishable. 31. In the case of Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 , the ultra vires of regulation 6 (A) of the Electricity Act was challenged. The facts of the case are wholly distinguishable. 31. In the case of Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 , the ultra vires of regulation 6 (A) of the Electricity Act was challenged. In the said case the ultra vires of Regulation 6 (A) of the Central Electricity Regulatory Commission (Procedure terms and conditions for grant of trading license and other related matters)(Amendment), Regulation 2006 was challenged inter alia on the ground that there was no sufficient guidelines having been laid down as regards dis-qualification of persons applying for grant of license. No issue with regard to the competence of legislative and executive order was an issue. 32. In the case of State of U.P. v. Daulat Ram Gupta, (2002) 4 SCC 98 , the issue was whether the State Government has power to impose certain restriction for the renewal of the license. The State Government had issued a Government Order wherein it was provided that no license for retail sale diesel oil granted under the Statutory Order shall be renewed if the place of benefit of such licensee falls within the radius of 5 km. of Government -run-retail outlets. The said executive order was challenged by the writ petitioners before this Court. The High Court had allowed those writ petitions holding that the said Government Order place an unreasonable restrictions on the fundamental right of the petty dealers and the said executive order could not be passed without hearing the licensee affected thereby. The Supreme Court has dismissed the appeal filed by the State Government and upheld the judgment of this Court. The issue involved in the said case is not germane to the present controversy in as much as the prohibition in the said Government Order for the renewal had affected their fundamental right and the Court found it was an unreasonable restrictions. 33. In the present case the counsel for the petitioner failed to point out any violation of their fundamental right if they were asked to install a dispensing unit. 34. The argument of Sri H. R. Mishra learned senior counsel for the petitioners that the State does not have power to issue the various orders on the ground that the Central Government has enacted the Petroleum Act,1934 exercises its power under List 1 (Union List) at Entry No. 53 is wholly mis-conceived. 34. The argument of Sri H. R. Mishra learned senior counsel for the petitioners that the State does not have power to issue the various orders on the ground that the Central Government has enacted the Petroleum Act,1934 exercises its power under List 1 (Union List) at Entry No. 53 is wholly mis-conceived. Essential Commodities Act has been enacted by the Parliament by virtue of Entry 33 in List III in Seventh Scheduled to the Constitution as discussed above. The State Government in exercise of its delegated power under Section 3 of the Essential Commodities Act has framed U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution Order), 1977 (supra) and Clause 9 empowers State Government to issue Order to regulate the distribution. 35. Thus we are unable to accept the submissions of Sri H.R.Mishra learned senior counsel for the petitioners that the State Government has no power to deal with the Kerosene oil. 36. The submissions of Sri Ram Niwas Singh learned counsel for the petitioners that the State Government has no power to issue the executive order has been dealt with by us in the earlier part of the judgment. In view of our opinion express above we do not propose to deal with various case law cited at Bar by Sri Mishra learned senior counsel for the petitioners and Sri Ram Niwas Singh learned counsel. Moreover ratio of these cases are akin to law laid down in cases relied by Sri Ravi Kant, learned senior counsel. 37. No ground is made out by the petitioners to interfere. Therefore, instant writ petition and all the connected writ petitions lack merit and deserves dismissal and are accordingly dismissed. 38. Interim order, if any, stands vacated. 39. However, no order is passed as to cost. Hon’ble P.K.S. Baghel, J.—I agree ——————