TaxTMI 
TaxTMI 
2002 (2) TMI 1334
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....intals for the wholesaler of edible Oilseeds including groundnut in shell, and 100 quintals for retailer (all edible Oilseeds taken together); and 300 quintals for the wholesaler and 20 quintals for the retailers (all edible oils including hydrogenated vegetable oils). The order dated 14th August, 1998 in which the amendment was made by the impugned order of 26th July, 2000 provided the stock limits for the aforesaid items which were 2000 quintals for edible Oilseeds including groundnut in shell for the wholesaler and 100 quintals for the retailer. It provided the stock limits of 600 quintals in respect of edible oils for the wholesaler and 20 quintals for the retailer. 2. Before adverting to the grounds of challenge, it is necessary to trace the history of various orders issued by the Central Government and the State of Gujarat under Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act'). 3. By virtue of its powers under Section 3 of the Act the Central Government issued the Pulses, Edible Oils (Storage Control) Order, 1977, which contained provisions regarding licence to be obtained by the dealers and the stock limits that will have to be observ....
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....Signed) K. Balkrishnan Deputy Secretary to the Government of India" 5. The "Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order of 1977" issued by the Central Government and the "Gujarat Pulses and Edible Oils Dealers Licensing Order of 1977", which was issued with specific reference to the Central Control Order, were in operation from 1977 to 1981 governing the licensing of the dealers in Edible Oils and Edible Oilseeds and prescribing the storage controls. 6. In the year 1981, the State Government of Gujarat passed State Order of 1981 wherein clause 3 required a licence to be taken for dealing in edible Oilseeds and edible oils. Clause 24 of this order provided for imposition of limits on stocks for Pulses, Edible Oilseeds and Edible Oils. This Control Order was issued by repealing the various existing Control Orders covering various essential commodities including the Gujarat Pulses and Edible Oil Dealers Licensing Order of 1977. The State Order was issued with the prior concurrence of the Central Government. 7. The Central Government after reviewing the situation prevailing in the entire country with regard to the availability of the ed....
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....e Central Order of 1977 was that no licence was necessary for "Edible Oilseeds and Edible Oils" as earlier required by clause 3 of the Central Order which was now confined only to the pulses. That whenever Central Control Order is amended, such amendment is deemed to be applicable to the Control Order of the State Government, and that the directions issued by the Central Government are binding upon all the State Governments. Any direction issued by the State Government in disregard of the directions of the Central Government would frustrate the very purpose of the amendment in the Central Order of 1977. Referring to the provisions of Articles 251, 255 and 256, it was contended that the executive power of the State is to be exercised so as to ensure compliance with the laws and directions of the Union of India and therefore the impugned order was required to be quashed and set aside being void ab-initio and in violation of the constitutional provisions. It was stated that since Central Government had now permitted import of all types of edible oils such as cotton seed oil, sunflower oil, palmoline, soyabean oil etc. by lifting all the restrictions on their import and as a ....
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....er for Food, Civil Supplies and Consumer Affairs of the State of Gujarat by his letter dated 19th June, 1998 brought to the notice of the Minister for Food and Consumer Affairs Department of Sugar and Edible Oil, Government of India, the unabated rise in prices of edible oil and in light thereof, he expressed his view that it was absolutely imperative that the State Government must have the power to enforce strict control over the unscrupulous oil traders and millers. It was stated that after the amendment in the Central Stock Control Order of 1977 the oil traders and millers had a free hand, resulting in unprecedented price rise. The Government of India was therefore requested to reintroduce stock control at the earliest. In response to that letter, the Minister for Food and Consumer Affairs, Government of India, sent a reply on 27th July, 1998 drawing the attention of the State Minister to the Central Government's Order dated 9.6.1978 whereby the powers under sub-section (1) of Section 3 of the said Act were already delegated to the State Government under Section 5. The State Government was advised that, if it found appropriate, it could regulate the storage, distribution etc. of....
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....stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed." Thus, the dismissal of the special leave petition in limine against the judgment of the High Court of Andhra Pradesh would not operate as a binding precedent taking away the jurisdiction of a co-equal Bench to adjudicate on the same point on merits in a case where the leave to file the appeal has been granted. Submission that different laws would be prevalent in different States because of the different views expressed by different High Courts thus creating uncertainty and confusion cannot be accepted as the law declared by this Court would be the law prevalent in the country. 15. It was then contended on behalf of the appellants that the State order of 1981 to the extent that it retains the essential commodities "Edible Oilseeds and Edible Oils" is repugnant to the Central Order of 1977 from which these items were removed. Analogy was drawn from the legislative repugnancy between the laws of the Parliament and the State Legislature on the same subject contained in the Concurrent List and it....
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....whole of India, was issued for maintaining supplies and for securing equitable distribution and availability at fair prices of pulses, edible oilseeds and edible oils. The Clause 3 of the Central order of 1977 required a person to obtain licence under the State Order for doing business as a dealer in these items if the stocks of pulses or edible oilseeds or edible oils in his possession exceeding the tabulated quantities. 18. Thus both the Central Government and the State Government had issued orders in respect of "Edible Oilseeds and Edible Oils". By virtue of delegation, both the Central Government and the State Government had powers to make orders under Section 3 (1) of the Act. The State had issued the orders by virtue of delegation of powers under Section 5 by the Central Government to the State Government. This apart, the State Legislature had the power to make laws concurrently with the Parliament, under Entry 33 of the Concurrent List in respect of foodstuffs, Edible Oilseeds and Edible Oils. The State Government, therefore, also had the executive power co- extensive with its legislative power in respect of these items. 19. The Constitution Bench of this Court i....
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....oncurrence imposed in respect of orders on matters which relate to intrastate. The State Order of 1981 was enacted with the prior concurrence of the Central Government. Clause 24 of the State Order conferring powers on the State Government to issue directions would therefore be deemed to have been issued after obtaining prior concurrence. Directions, which were issued under Clause 24 of the State Order of 1981 did not require any concurrence under the conditions imposed in the Notification dated 9th June, 1978 delegating powers to the State Government under Section 5 of the Act. There was no direction of the Central Government to the effect that the State Government should not impose any stock limit under Clause 24 of the State Order. In fact, the Central Government had concurred with the State Government in issuance of the directions under the Order dated 14th August, 1998 made under Clause 24 of the State Order of 1981. Even before the Court the Central Government had filed an affidavit showing that it was agreeable to the issuance of such directions by the State Government and the Order dated 14th August, 1998 was justified. 21. By an Order dated 10th November, 1997 issued unde....
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....lies Department of all the States and Union Territories to comply with the directions omitting the words "Edible Oilseeds and Edible Oils" from the Central Order of 1977, it was contended by Shri M.L. Verma, senior counsel appearing for the appellants that it was the duty of the State Government to carry out the directions issued by the Central Government and delete the words "Edible Oilseeds and Edible Oils" from the State Order of 1981. We do not find any substance in this submission as well. By this letter the State Governments and the Union Territories were told that since from the Clauses of Central Order the words "Edible Oilseeds and Edible Oils" had been deleted, the State Governments and the Union Territories should ensure compliance with the amendment in so far as the Central Order of 1997 was concerned in relation to "Edible Oilseeds and Edible Oils". No direction had been issued to the State Government to delete the words "Edible Oilseeds and Edible Oils" from the State Order of 1981 which was in operation. The compliance of the circular letter dated 13th November, 1997 would in the context mean that the State should tak....
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....that the State Government would be the appropriate authority to take decision regarding the permissible stock limits and the turnover period within the area of its jurisdiction. Only thereafter the State Government issued the letter dated 14th August, 1998 in exercise of its power under Clause 24 (1) of the State Order of 1981 which was later on amended by the impugned order dated 26th July, 2000. 24. Although, we are of the opinion that no prior concurrence was required before issuing the order dated 14th August, 1998 and followed by the Order dated 26th July, 2000 fixing the stock limits of "Edible Oilseeds and Edible Oils" but even if there was required to be prior concurrence there could never be a clearer concurrence to the State Government's request for applying the State Order of 1981 which was issued by the State with prior concurrence after the delegation of the powers to it under the notified order dated 9th June, 1978. The concurrence of the Central Government on issuance of the orders dated 14th August, 1998 and 26th July, 2000 though not strictly required was writ large in the communications of the concerned Union Minister and the Secretary of the concerned ....