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Judgment
R.K. Abichandani, J.—These two appeals are directed against the common judgment and order dated llth April, 2001 passed by the
learned single Judge in Special Civil Application No. 9446 of 2000 (Rajmoti Industries v. State, reported in 2001 (3) GCD 2530. (Letters Patent
Appeal No. 331 of 2001) and 9764 of 2000 (Letters Patent Appeal No. 330 of 2001), by which these two Special Civil Applications were
allowed by setting aside the impugned Order dated 26th July, 2000 at Annexure ''A'' to the petitions, prescribing stock limit of edible oilseeds and
edible oils under Clause 24(1) of the Gujarat Essential Articles (Licensing, Control & Stock Declaration) Order, 1981 (hereinafter referred to as
''the State Order of 1981''), and by ordering that the words ''edible oilseeds and edible oils'' wherever occurring in the State Order of 1981 stand
deleted hereafter.
1.2 Both these appeals have been fully and finally heard at the request of learned Counsel appearing for both the sides.
In Special Civil Application No. 9764 of 2000, the petitioner (Shri Saurashtra Oil Mills Association) had challenged the order made by the
respondent No. 1-State on 26-7-2000 at Annexure ''A'' to the petition, by which in pursuance of sub-clause (1) of Clause 24 of the State Order
of 1981, the Government of Gujarat amended the order dated 14th August, 1998 by substituting the storage limits in respect of dealers and
thereby providing that no dealer shall either by himself or by any person on his behalf store or have in his possession at any time any edible oilseeds
or edible oils in excess of the quantities specified thereunder, which were 1000 quintals for 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 was made under Clause 24(1) of the State Order of 1981 providing 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.
2.1 Invoking the provisions of Articles 14, 19(1)(g), 226, 251, 254 and 256 of the Constitution of India, the petitioner challenged the ''inaction'' on
the part of the State Government in not deleting ''edible oilseeds and edible oils'' from the list of essential articles in the State Order of 1981 and
sought for a declaration that the State Order of 1981 shall not apply to edible oilseeds and edible oils. According to the petitioner, the directions
issued in the impugned Order dated 26-7-2000 were illegal and void. An amendment was effected on 10-11-1997 in the Pulses, Edible Oilseeds
and Edible Oils (Storage Control) Order, 1977 (hereinafter referred to as ''the Central Order of 1977'') by virtue of which, from the clauses
including Clause 3 for licencing of dealers, ''edible oilseeds and edible oils'' were deleted. The Central Order of 1977 was issued by the Central
Government u/s 3 of the Essential Commodities Act, 1955 (hereinafter referred to as ''the said Act''), and Clause 3 thereof related to licencing of
dealers (and not licencing of dealers and producers as mentioned in paragraph 2 of the petition). According to the petitioner, a communication was
sent on 13-11-1997 from the Central Government to the Secretaries of all States requiring them to comply with the Amendment Order dated 10-
11-1997 deleting certain clauses of the Central Order of 1977 so far as they related to ''edible oilseeds and edible oils''. The Amendment Order
dated 10th November, 1997 was issued by the. Central Government u/s 3 of the said Act for amending the Central Order of 1977 by deleting the
words ''edible oilseeds and edible oils'' from the preamble and various clauses of the Central Order of 1977, the effect of which was that the
Central Order no longer applied to ''edible oilseeds and edible oils'' after the omission of these words. The petitioner also referred to a letter
written by the Joint Secretary to the Government of India on 23-12-1997 as per Annexure ''B'' to the petition, stating that the State Governments
/Union Territories had been requested to ensure compliance with the amendment to the Central Order of 1977. (That letter at Annexure ''B'' dated
23rd December, 1997 appears to have been written by the Joint Secretary to one Mr. Shyam Bihari Mishra, Ex-M. P., in response to his letter
dated 10-12-1997 and does not appear to be any circular to the State Governments, as has been assumed in his judgment by the learned single
Judge.). The petitioner has further stated that, on 21st August, 2000, the Central Organization for Oil Industry & Trade had written a letter to the
petitioner that action of not deleting ''edible oilseeds and edible oils'' from the A. P. Schedule Commodities Dealers (Licencing & Distributing)
Order, 1982 was challenged by the A. P. Oil Millers Association Ltd., before the Andhra Pradesh High Court in Writ Petition Nos. 3816 and
7753 of 1998, which were allowed on 8-1-1998, and that the judgment of the learned single Judge was confirmed by a Division Bench in Writ
Petitions Nos. 1546 and 1549 of 1998, which were dismissed. Thereupon, the Government of Andhra Pradesh had issued a Circular dated 7-8-
2000 stating that there was no need for the dealers and traders to obtain any licence for doing business in ''edible oilseeds and edible oils'' under
the Andhra Order of 1982. It is contended in Paragraph 5 of the petition that whenever there is a conflict between the Central Act and the local
Orders, Rules or Notifications issued thereunder, the conflicting rules, policies orders or notifications would be illegal and void ab initio to the
extent of inconsistency with the Central Act. According to the petitioner, the effect of the amendment in the 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
pulses. It is stated 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, 254 and 256 in detail, in Paragraph 13 of the petition, it has been 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 at Annexure ''A'' is required to be quashed and set aside being void ab initio and in violation of these constitutional provisions. It is
stated that the Central Government has now permitted import of all types of edible oils, such as, cottonseed oil, sunflower oil, palmoleine,
soyabean oil etc. by lifting all the restrictions on their import and as a result thereof, it appears that the Central Government has thought it fit to
delete ''edible oilseeds and edible oils'' from the Central Order of 1977, with a view to ensure smooth business operation without the harassment to
the dealers/traders/producers from the Government officers.
2.2 The respondents in their affidavits-in-reply filed in the petition have contested the petition by contending that there is no conflict between the
Central Act and the local Orders, because, the State Government had passed the Orders in exercise of its powers u/s 3 read with Section 5 of the
said Act read with the orders of the Government of India made on 3-11-1974 and 9-6-1978 u/s 3. According to the State Government, it was
empowered to pass the impugned Order under Clause 24(1) of the State Order of 1981, and that these measures were required to be taken for
controlling the regular supply and prices of the essential commodities. It is pointed out that the State Order of 1981 was issued after prior
concurrence of the Central Government with a view to maintain supplies of essential commodities and securing their equitable distribution and
availability at fair prices.
2.3 In the affidavit-in-reply filed on behalf of the original respondent No. 2 Union of India, it was stated that considering the fact that the State
Governments would be the proper authorities to assess the situation prevailing in their respective States in respect of certain essential commodities,
including ''edible oilseeds and edible oils'', the Central Government had notified several orders u/s 5 of the said Act delegating powers conferred by
Section 3(1) of the said Act to the State Government. Such orders were notified in the years 1972, 1974 and 1978. By virtue of these orders, the
respective State Governments were duly empowered to take appropriate measures to achieve the purposes mentioned in Section 3 of the said
Act, subject to the conditions specified therein. It is stated that, in the earlier orders of 1972 and 1974, there was a condition to the effect that no
Order should be issued in pursuance of the powers delegated if it was inconsistent with any of the Orders issued by the Central Government under
the Act. However, this condition was deleted in the Order of 1978, while retaining the condition of prior concurrence of the Central Government
before issuing an Order, as stated therein. It is pointed out that considering the local situation in respect of prices in respect of edible oils, especially
groundnut oil in Gujarat, the then Minister for Food, Civil Supplies and Consumer Affairs of the State of Gujarat, by his letter dated June 19,
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 brought to the notice of the Union Minister that ever
since the amendment in the Central Stock Control Order of 1977, the oil traders and millers had absolutely 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 u/s 5. The State Government was advised that, if it found appropriate, it could regulate the storage, distribution etc. of ''edible
oilseeds and edible oils''. It was mentioned that the State Government would be the appropriate authority to take decision regarding permissible
stock limits and the turnover period within the area of its jurisdiction. Thereafter, the State Government issued Order dated 14th August, 1998 in
pursuance of Clause 24(1) of the State Order of 1981. It is stated mat the Union of India has been aware of and vigilant about the situation
prevailing in the State of Gujarat in respect of essential commodities and the Union Minister had addressed the letter to the Chief Minister on 16th
July, 1998 and me concerned Secretary of the Union Ministry had also written a letter to the Chief Secretary of the State on 24th July, 1998, by
which the State was advised to take appropriate measures by issuing orders pursuant to the delegation of powers u/s 5 of the said Act. It was
stated in Paragraph 8 of the affidavit-in-reply dial the State Government was duly empowered to issue orders in respect of ''edible oilseeds and
edible oils'' irrespective of the fact that the Central Government had deleted me words ''edible oilseeds and edible oils'' from the Central Order of
1977.
In Special Civil Application No. 9446 of 2000 (filed by the petitioner Rajmoti Industries), the impugned Order passed by the State Government
on 26-7-2000 at Annexure ''A'' to that petition has been challenged on the same grounds as are narrated above, and a declaration is also sought
that the words ''edible oilseeds and edible oils'' wherever occurring in the State Order of 1981 stand deleted forthwith. Even the respondents have
taken up identical contentions in the affidavits-in-reply filed by them in that petition and these have already been referred to hereinabove.
The learned single Judge held that there was no substance in the contention raised on behalf of the State Government that the impugned orders
could be made by the State Government under the State Order of 1981, because, the State Government is not empowered to pass any orders
inconsistent with the orders passed by the Central Government, and that the powers delegated to the State Government were subject to further
directions of the Central Government. It was held that, by the government letters dated 13th November, 1997 and 23rd December, 1997, all the
State Governments were required to make amendment in the existing State Government Orders to delete the words ''edible oilseeds and edible
oils'' by making law to give effect to the directions of the Central Government, and that the State Government was not entitled to act as a delegate
when the delegated powers in respect of ''edible oilseeds and edible oils'' had already been taken away by the Central Government vide its
Amendment Order of 1997. It was also held that the impugned Order of the State Government was contrary to the order of the Central
Government. Relying upon the decision of the Supreme Court in the case of District Collector, Chittoor and Others Vs. Chittoor District
Groundnut Traders Association and Others, , the learned single Judge held that the impugned Order passed by the State Government was made
without any prior concurrence of the Central Government, and was therefore, illegal and not sustainable in the eye of law. The learned single Judge
reproduced the contents of the correspondence between the State Minister and the Union Minister and the Government officials and came to the
conclusion in Paragraph 23 of the judgment mat the extracts of the letters which were examined showed that the letters dated 27-7-1998 and 24-
4-1998 of the Union Minister and the Secretary of the Central Government contained their personal opinion that the State Government had power
under the delegation made u/s 5 of the said Act to issue the orders in respect of ''edible oilseeds and edible oils''. It was held that it was wrongly
assumed that the delegated powers had not been taken back by the Central Government and that the State Order of 1981, was therefore, still in
operation in respect of ''edible oilseeds and edible oils''. According to the learned single Judge, the provisions of the State Order of 1981 could not
operate, because, the powers delegated earlier stood withdrawn in view of the amendment by the Central Government in its own Central Order of
1977. The contents of the so-called circular dated 23-12-1997, which, as pointed by us hereinabove, was only a letter written by the Joint
Secretary of the Central Government to one Ex-M. P. Mr. Mishra are reproduced and relied upon by the learned single Judge as if it was a
Circular issued to all the State Governments. The other circular - letter dated 13-11-1997 which is reproduced in the judgment, is a letter which
was written by the Chief Director, Ministry of Food and Consumer Affairs to the Secretary, Food and Civil Supplies Department of all States as
well as Union Territories. It was under this letter that the Amendment Order dated 10-11-1997 was forwarded to all State Governments and
Union Territories for information and compliance. This letter has been construed by the learned single Judge as issuance of a mandate to the State
Governments to amend their State Orders by making similar deletion in respect of ''edible oilseeds and edible oils'' from them. The word
compliance used in this letter is held by the learned single Judge to mean making necessary corrections, modifications or amendments relating to
storage and control of ''edible oilseeds and edible oils'' in the State Order of 1981 as were made by some State Governments by deleting ''edible
oilseeds and edible oils'' from their respective Orders. The learned single Judge concluded that once the ''edible oilseeds and edible oils'' were
deleted from the Central Storage Order of 1977 by virtue of the Amendment Order of 1997 by the Central Government, the State Order of 1981
stood repealed in respect of licencing and stock declaration of edible oilseeds and edible oils. It was held that the impugned Order dated 26-7-
2000 issued under Clause 24(1) of the State Order of 1981 was without authority. The learned single Judge, therefore, set aside that Order and
declared that the words ''edible oilseeds and edible oils'', wherever occurring in the Gujarat Essential Articles. (Licensing, Control and Stock
Declaration) Order, 1981, stand deleted hereafter.
The learned Advocate General appearing for the appellant-State of Gujarat in these two appeals contended that, in view of the powers
delegated to the State Government u/s 5 of the said Act, the State Government was empowered to issue the State Order of 1981, which was
independent of the Central Order of 1977, and therefore, the validity of the provisions of the State Order of 1981 did not depend upon the
provisions of the Central Order of 1977. It was contended that the directions that may be issued under Clause 24 of the State Order of 1981 did
not require any concurrence under the conditions imposed in the Notification dated 9-6-1978 delegating powers to the State Government u/s 5 of
the said Act. It was pointed out that, in me preamble of the State Order of 1981, it was recorded that the order was made with prior concurrence
of the Central Government. It was, therefore, argued that even Clause 24 of the State Order of 1981 was issued after obtaining prior concurrence,
meaning thereby that the Central Government had agreed to the State Government issuing the irections which were contemplated by Clause 24. It
was submitted that there were no directions of the Central Government to me effect that the State Government should not impose any stock limit
under Clause 24 of the State Order, and 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 order by the State Government, and that the order dated 14th August, 1998
was justified. It was therefore, futile to issue a writ directing deletion of the entries notwithstanding the concurrence of the Central Government also
expressed before this Court, even though no concurrence was required under the order delegating the powers in matters which were within the
scope of clause (d) of Section 3(2) of the said Act. The learned Advocate General then referred to the correspondence between the Union and the
State Government and submitted that there was no question of any personal opinion being expressed in such official correspondence and the State
Government had impressed upon the Central Government about the need to control the stocks of ''edible oilseeds and edible oils'' in the State
having regard to the escalation of prices and to prevent hoarding. It was pointed out that the Central Government had readily agreed that the State
Government may go ahead with the stock restrictions in respect of these commodities and it is only thereafter that the order dated 14th August,
1998 was issued by the State Government under Clause 24(1) of the State Order of 1981. It was submitted that even the Central Government
never considered that by amending the Central Control Order of 1977, the powers of the State Government were being taken away. The Stale
Government was in fact asked to go ahead with such restrictions under the provisions of the State Order of 1981, which was made by the State
Government u/s 3(1) of the said Act read with Section 5 thereof. It was also submitted mat this was not a case where the State Government did
not have its own powers in respect of such commodities pointing out that the subject-matter fell within Entry 33 of the Concurrent List. It was
submitted that even the State Government on its own could have made a law on the subject and controlled these essential commodities and that the
executive power of the State Government was co-extensive with its legislative powers under Article 162 of the Constitution. Therefore, even the
State Government on its own could have exercised these powers within me limits of the constitutional provisions which had a bearing on the aspect
of repugnancy. He submitted that the Central Legislature enabled the State Government to exercise the statutory powers u/s 3(1) in respect of a
matter which was falling in the Concurrent List and this should be merefore, viewed from the angle that the central legislature thought it proper to
take States into confidence by empowering their governments to make orders u/s 3(1) whenever the powers were delegated so that me State
Government may harmoniously act.
5.1 The learned Advocate General relied upon the following decisions in support of his contentions :-
[a] He referred to the judgment in Roop Chand Vs. State of Punjab, , in which it was held by the Supreme Court that a power when delegated
under the Act remains the power of the Government. The Government can only delegate the powers given to it by the statute and cannot create an
independent power in the officer. It was held that when the delegate exercises the powers, he does so for the government. Therefore, an order
made by an officer, on delegation to him of the powers of the Government for the purposes of the Act, would be an order of the Government.
[b] The decision of the Supreme Court in K. Ramanathan v. State of Tamil Nadu, reported in AIR 1985 SC 660 was cited for the proposition that
the general power to issue the orders flows from the provisions of Sub-section (1) of Section 3 of the said Act which stands delegated to the State
Government by virtue of the notification issued u/s 5 of the said Act.
[c] The decision of the Supreme Court in State of Andhra Pradesh v. Potta Sanyasi Rao, reported in AIR 1975 SC 2030 was cited for the
proposition that delegation u/s 5 of the said Act was a general delegation and that it would enure for all exercise of powers by the State
Government with respect to commodities declared essential by the Central Government even subsequent to the order of delegation.
[d] The decision in Sarkari Sasta Anaj Vikreta Sangh Tahsil Bemetra and Others Vs. State of Madhya Pradesh and Others, was pointed out to
show that it was held by the Supreme Court that concurrence of Central Government was necessary under the delegation Order G.S.R. 800 dated
June 9, 1978 made u/s 5 of the said Act only when the orders related to matters specified in clauses (a), (c) and (f) of Section 3(2) of the said Act
or in respect to distribution or disposal of foodstuffs to places outside the State or in respect to regulation of transport of any foodstuff under clause
(d). It was submitted that, for the Control Order which did not relate to any of these matters, no concurrence of the Central Government was
necessary, as held by the Supreme Court. Even if the concurrence is needlessly obtained on earlier occasion, the State Government was not
obliged to obtain it whenever again there was an amendment in the Control Order.
The learned Counsel appearing for the contesting respondent No. 1 in these two appeals strongly supported the judgment and order of the
learned single Judge. He argued that the State Order of 1981 was not an independent order, but it was made in implementation of me Central
Order of 1977. Therefore, when by the Amendment Order of 1997 made by the Central Government, the words ''edible oilseeds and edible oils''
were deleted from the Central Order of 1977, the State Order of 1981 ceased to operate as regards these essential commodities. It was
contended that prior to the State Order of 1981, there was State Order of 1977 dealing with ''edible oilseeds and edible oils'' made by the State
Government in aid of the Central Order of 1977. He submitted that Clause 3 of the Central Order of 1977 required the dealer to get a licence
under the State Control Order and the State Control Order was expected only to provide for the modalities regarding issuance and terms and
conditions of such licence. It was submitted that the basic requirement of licence was in Clause 3 of the Central Order of 1977 and all other things
fell within the purview of the State Control Order, and therefore, when the basic requirement of obtaining a licence in respect of ''edible oilseeds
and edible oils'' was taken away from the Central Order of 1977, the State Government cannot insist upon licences under its Control Order which
were meant to be only procedural in nature. The Counsel submitted that, when substantive provision was withdrawn from the Central Order, the
procedural provisions in the State Order have to follow suit especially when the licence was to be one and the same and no separate licences were
to be issued under the Central and State Orders. It was submitted that the State Order had no independent object to achieve and it was only in the
aid of the Central Storage Order of 1977 to provide for the efficacy of Clause 3 of the Central Order which required a licence to be obtained
under the State Order and prescribed me stock limits. It was submitted that Central Order continued to operate for nearly 22 years which shows
that it was regulating the field and me State Orders were meant only to assist the Central Government in implementation of its orders. The learned
Counsel argued that, in 1997, the Central Government reviewed the whole position, sought opinion of the State Governments before issuing the
Amendment Order on 10-11-1997 deleting ''edible oilseeds and edible oils'' from the Central Order. The Central Order of 1977 came to an end
on 10-11-1997 in respect of ''edible oilseeds and edible oils'' and consequently, the State Order of 1981 also came to an end so far these two
commodities were concerned. Therefore, Clauses 15 and 24 of the State Order cannot operate in respect of these two items, and hence,
concurrence question would not arise. It was submitted that no separate control order for these two commodities had been issued by the State
Government.
6.1 The learned Counsel relied upon the following decisions in support of his contentions :
[a] The decision of the Supreme Court in District Collector, Chittoor and Others Vs. Chittoor District Groundnut Traders Association and Others,
was cited for the proposition that a delegate is not entitled to exercise powers in respect of or in contravention of the delegated powers. The
Supreme Court was concerned with the provisions of the Andhra Pradesh Scheduled Commodities Dealers (Licencing and Distribution) Order,
1982 and the question about the validity of imposition of restriction on export of groundnut seed and oil to outside the State and directions for
compulsory levy at specified price. In paragraph 6 of the judgment, the Supreme Court noted that the 1982 A. P. Order which was framed by the
State Government in exercise of the delegated powers did not contain any provision placing any restriction on the transport or movement of the
edible oil or oilseeds nor did it provide for imposition of compulsory levy, and that it did not fix any price. It was held that the directions issued by
the government placing restrictions on the movements of oilseeds and oil and imposing compulsory levy and requiring millers and traders to sell
oilseeds and oil at a price fixed by it were outside the purview of the 1982 Order. Those directions had no sanction of law. It was held that if the
State Government was facing any problem, it could have made amendments in the 1982 Order regulating matters specified in clauses (d) and (f) of
Section 3(2) of the Act after obtaining the prior concurrence of the Central Government, but no such course was followed. This is why, it was held
that the directions contained in the Government Order were illegal and void as they were in contravention of the powers delegated to the State
Government under Notification dated 9-6-1998.
[b] Reliance was placed on the decision of the Division Bench of the Andhra Pradesh High Court which confirmed the decision of the learned
single Judge of the Andhra Pradesh High Court, copies of which decisions are placed in the paper-book. In the Writ Appeals Nos. 1546 to 1549
of 1998, the Division Bench while confirming the decision of me learned single Judge observed that if the Central Order of 1977 was to deal only
with storage limits of ''edible oilseeds and edible oils'', then it would not have contained Clause 3. It was held that, a reading of Clauses 3 and 4 of
the Central Order of 1977 made it clear that they operated in different fields and that Clause 3 dealt with requirement of obtaining a licence, while
Clause 4 placed restriction on dealer on its possession and the quantum of ''edible oilseeds and edible oils'' by specifying the maximum limits. It
was held that the State Government was labouring under a misconception that it had power to fix prices, regulate distribution and also movement
of ''edible oilseeds and edible oils'' and for exercise of such power, it depended on Clause 12 of the A. P. Order, 1982. However, as held by the
Supreme Court in District Collector, Chiftoor (supra), there was no concurrence from the Central Government for fixation of any price or placing
restrictions on movement or distribution of ''edible oilseeds and edible oils''. It was held that since the ''edible oilseeds and edible oils'' are now
deleted from the purview of the Central Order of 1977, as a necessary corollary, the State Government is bound to obey the same and now
cannot insist upon obtaining of licence by dealers or producers relating to edible oilseeds and edible oils. The learned single Judge of the Andhra
Pradesh High Court who had decided Writ Petition Nos. 3816 and 7753 of 1998, had held that the Andhra Pradesh Order of 1982 issued by the
State Government was only the product of the delegated authority to enable the State Government to effectively implement the orders already
issued by the Central Government in 1977. In Paragraph 15 of that judgment, it was held that the earlier State Order of 1978 was a sequel to the
order issued by the Central Government in 1977 as the licences and other terms and conditions were to be covered by the State Order. It was
held that as on 1982, there were two orders holding the field in respect of ''edible oilseeds and edible oils'', but the order made by the Central
Government in 1977 was the Parent Order issued u/s 3 of the said Act and only the licencing aspect was to be taken care of by the State
Government. It was held that the Central Order will prevail over the State Order in case of any conflict between the two, and that the State cannot
issue any order disregarding the direction of the Central Government. The learned single Judge held that, in view of the Amendment Order dated
10th November, 1997 deleting the words ''edible oilseeds and edible oils'' wherever occurring in the Central Storage Order, the State was
required to delete them, in compliance of such amendment, from its order. It was held that the effect of the direction of the Central Government
was that the existing State Order was required to be properly amended and that the State ought to have deleted the words ''edible oilseeds and
edible oils'' completely from the A. P. Order of 1982. The learned single Judge, therefore, ordered that the commodities ''edible oilseeds and
edible oils'' wherever occurring in the A. P. Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982 stand deleted and ordered
that not only the restriction on stock limits, but also the licensing of dealer and all other requirements stood dispensed with.
It has been contended 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 Parliament and the State Legislature on the same subject contained in the Concurrent List and it was contended that in case of repugnancy,
the Central Law will prevail, and that the State must obey the executive directions of the Central Government in view of the constitutional scheme.
It was argued that the State Order of 1981 to the extent that it retains these items stood repealed by the central law as soon as these essential
commodities were deleted from it and the control thereon stood lifted. Continuing these items in the State Order of 1981 was in conflict with the
lifting of control in the Central Order. The contention was that the State is duty-bound to obey the directions issued by the Union of India and
delete ''edible oilseeds and edible oils'' from the State Order of 1981.
Let us therefore, examine whether there is any repugnancy between the Central Order of 1977 and the State Order of 1981, which was issued
u/s 3(1) of the said Act, so as to bring about any implied repeal of the State Order of 1981 to the extent it relates to ''edible oilseeds and edible
oils'' which were deleted from the Central Order of 1977, as contended on behalf of the original petitioners. The State Order of 1981 was issued
by the State Government with prior concurrence of the Central Government u/s 3 read with Section 5 of the said Act. It provided for licencing,
control and stock declaration and was issued, because the State Government was of the opinion that it was necessary and expedient so to do for
maintaining supplies of the essential commodities dealt with therein and for securing their equitable distribution and availability at fair prices.
Essential articles to which the State Order of 1981 applies are enumerated in Schedule I thereof. Under Clause 3(l)(a) of the State Order of 1981,
no person shall carry on business as a dealer [as defined in Clause 2(c>] in edible oilseeds including groundnut in shell; edible oils including
hydrogenated vegetable oils, food-grains, pulses, khandsari and sugar, if the stock of such essential articles in his possession at any time exceeded
the quantities specified against them. A licence is also required for carrying on business as a producer [as defined in Clause 2(17)] in essential
articles under Clause 3(2). Prior to this State Order of 1981, there existed various State Orders which were repealed by Clause 29 of the State
Order of 1981 including the Gujarat Pulses, Edible Oilseeds and Edible Oils Dealers, Licence Order, 1977 which contained similar licencing
provision in Clause 3.
8.1 The Central Order of 1977 was issued for maintaining supplies and for securing equitable distribution and availability at fair prices of pulses,
edible oilseeds and edible oils. It extended to whole of India and by Clause 3 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 exceeded the tabulated quantities. Thus,
both the Central Government and the State Government had issued orders in respect of ''edible oilseeds and edible oils''. Clause 3 of the Central
Order required licencing of dealers as per the State Order, while Clause 3 of the State Order required licencing of dealers and producers of the
essential articles including ''edible oilseeds and edible oils''. The Central Government issued the order u/s 3(1) of the said Act and even the State
Government had issued it under the same provision by virtue of delegation of powers to issue such orders made u/s 5 of the Central Government.
By virtue of such delegation, both the Central Government and the State Government had powers to make such orders u/s 3(1) of the said Act.
Even apart from the provisions of the Essential Commodities Act and the delegation provision of Section 5 thereof, the State Legislature had
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 Slate Government, therefore, also had the executive powers co-extensive with its legislative power in respect of those items. The simultaneous
exercise of legislative powers in respect of the matters entrusted to both the Union and the States and their corresponding executive powers have
to be viewed in harmony with each other. The concept of concurrent legislative powers to the Centre and the State is a unique example of co-
operative federalism and is meant to accommodate and balance the perceptions of both the Union and the State in the field of legislation.
8.2 Under Entry 33(b) and (c) of the Concurrent list, both the Parliament and the State Legislatures have legislative competence to make laws with
respect to foodstuff including ''edible oilseeds and edible oils'' and price control. The said Act is enacted by the Parliament under Entry 33. The
executive power of a State is co-extensive with its legislative power, but in any matter with respect to which the legislature of a State and
Parliament both have powers 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 aumorities thereof. The executive power conferred by the
Constitution on the Union is reflected in Chapter II of Part 11 which requires the executive power of every State to be so exercised as to ensure
compliance with the laws made by Parliament and so as not to impede or prejudice the exercise of executive power of the Union. When there is
any inconsistency between the laws made by Parliament and by the State Legislature, the law made by Parliament shall prevail and to the extent of
repugnancy, the State law will be void. When law is made by the Legislature of a State with respect to a matter enumerated in the Concurrent List
and if the State law has received Presidential assent, it will prevail in that State, notwithstanding its being inconsistent with the law made by the
Parliament. The State can make law where there is no central legislation or with a view to supplement the central legislation. Bom, the Centre and
the State, must be presumed to be conscious of the need for accord and need for accommodating each other in the common interest, as was held
by the Supreme Court in Ram Chandra Mawa Lal, Varanasi and Others Vs. State of Uttar Pradesh and Others, . One of the test for ascertaining
whether the inconsistency is irreconcilable is to pose a question : Can the State law be obeyed or respected without flouting or violating the Central
law in letter and spirit? If the answer is in the affirmative, the State law cannot be invalidated.
8.3 The question of repugnancy between the Order made by the Central Government and the Order made by the State Government would arise in
case both the Orders occupy the same field with respect to the same matter and there is a direct conflict between the two provisions. If both the
provisions occupying the same field do not deal with the same matter, but distinct, though cognate or allied matter, there is no repeal by implication
as held by the Supreme Court in Vijay Kumar Sharma and others Vs. State of Karnataka and others, . In context of the concurrent legislative
powers conferred by Entry 33 of the Concurrent List, the Supreme Court in Ch. Tika Ramji v. State of Uttar Pradesh, reported in AIR 1956 SC
676 held that the provincial legislatures as well as central legislature would be competent to enact laws on the same subject and the exercise of
concurrent jurisdiction by the central legislature would not deprive provincial legislature of similar powers. Both would be competent to enact such
pieces of legislation and no question of legislative competence would arise. It was held that none of the provisions of the U.P. Sugarcane
(Regulation of Supply and Purchase) Act, 1953 or the Orders issued under the Essential Commodities Act overlapped, the Centre being silent
with regard to some of the provisions which were enacted by the State, and the State being silent with regard to some of the provisions which were
enacted by the Centre. The Supreme Court held that there being no repugnancy at all, the U. P. Sugarcane (Regulation, Supply and Purchase)
Order, 1954 could not be validly repealed by the Central Act, as was purported to be done by clause 7 of the Sugarcane Control Order, 1955. 9.
The State could have made legislation on all the matters falling under Entry 33 of the Concurrent List including foodstuffs, edible oilseeds and
edible oils in exercise of its own concurrent powers within the bounds of the constitutional mandate and by obtaining Presidential assent even its
laws in conflict with the parliamentary legislation would have operated in the State. Instead, the Parliament in exercise of its concurrent powers,
while legislating on this subject provided for delegation of the powers by the Central Government to the State Government to issue orders u/s 3(1)
of the said Act. The power statutorily delegated u/s 5 retains its quality and level and the orders issued by the State Government have the same
efficacy as that of the orders issued by the Central Government. By the notified order dated 9th June, 1978 made u/s 5 of the said Act, it was
directed that the power to issue orders or notifications u/s 3 be also exercisable by the State Government or other officer or authority, as may be
specified in the direction. The delegation of powers is made subject to conditions, if any, as may be specified in the Order. The conditions subject
to which the powers u/s 3(1) of the said Act to make orders in relation to foodstuffs to provide for the matters specified in clauses (a) to (g) were
stated in the said Order G.S.R. 800 dated 9th June, 1998 as under :
[1] That such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in
this behalf;
[2] That before making an order relating to any matter specified in the said clauses (a), (c) or (f) or in regard to distribution or disposal of
foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff under the said clause (d), the State Government shall
also obtain the prior concurrence of the Central Government; and
[3] That in making an order relating to any of the matters specified in the said clause (j). the State Government shall authorise only an officer of the
Government.
The exercise of powers to issue orders was made subject to directions that may be issued by the Central Government. It will be seen that prior
concurrence of the Central Government was required only before making an order relating to any matters specified in clause (a), (c) or (f) or in
regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff under clause (d).
There was no requirement of prior concurrence imposed in respect of orders on other matters.
By order dated 10th November, 1997 issued u/s 3 of the said Act, the Central Government amended Us Storage Control Order of 1997 by
deleting the words ''edible oilseeds and edible oils'' from its preamble, title and from all other clauses so as to confine the Order to pulses only.
Therefore, on and from 10th November, 1997, there remained no Central Order u/s 3 in respect of ''edible oilseeds and edible oils''. The State
Order of 1981 which also contained stock limit provisions for licensing purposes similar to those tabulated in the pre-amended Central Order of
1977, however continued to operate. The Central Amendment Order of 1997 did not even purport to amend the State Order of 1981. The
question is whether there was any implied repeal of the provisions relating to ''edible oilseeds and edible oils'' in the State Order of 1981 merely
because the provisions of the Central Order of 1977 were amended by omitting ''edible oilseeds and edible oils'' therefrom or whether the
omission of these items from the Central Order brought about any repugnancy in the State Order of 1981. There can arise no question of
repugnancy when the field is not governed by both the Central and State Orders in respect of the same subject-matter. The power u/s 3(1)
conferred by a valid delegation u/s 5 of the said Act did not depend upon any prior exercise of any power u/s 3(1) by the Central Government. In
other words, efficacy of the State Order of 1981 u/s 3(1) or its legitimacy did not depend on existence of an Order in the same field by the Central
Government. The State Government can make orders independently of the fact whether the Central Government has made an order in the same
field. There will not be much sense in delegating power to make orders to the State Government if the said orders are meant to be only mirror
reflections of the Central Orders. In fact, the purpose of delegation, in such cases, would be to let the State Government deal with the situation, of
course, subject to the conditions on which the power is delegated to it. There was no conflict between the provisions of the Central Government
Order of 1977 relating to ''edible oilseeds and edible oils'' and those covering the same field in the State Order of 1981, and there can never arise
any question of conflict or repugnancy after those items were removed from the Central Order. When no question of conflict or repugnancy can
arise, because, the Central Order of 1977 ceases to govern the field as regards the ''edible oilseeds and edible oils'' and only the provisions of the
State Order of 1981 remain in the field, there can be no implied repeal of the provisions of the State Order of 1981 relating to ''edible oilseeds and
edible oils''. We hold that the omission of ''edible oilseeds and edible oils'' from the Central Order of 1977 had no effect on the efficacy of the
State Order of 1981, which continued to operate having been framed by the State Government u/s 3(1) read with Section 5 of the said Act.
The question then remains whether there were executive directions issued by the Central Government to the State Government to amend the
provisions of the State Order of 1981 insofar as they related to ''edible oilseeds and edible oils''. The communication dated 13-11-1997 has been
heavily relied upon on behalf of the respondents as containing such a direction. In Para 20 of the judgment, the learned single Judge observed that,
by the Central Government letters dated 13-11-1997 and 23-12-1997 all the State Governments were required to make amendment in the
existing State Government Orders to delete the words ''edible oilseeds and edible oils'' or to make law to give effect to the direction of me Central
Government. In Paragraph 23 of the judgment, the learned Judge refers to ''circular'' dated 23-12-1997, a copy of which is on record. This
communication is nothing but a letter addressed by a Joint Secretary of the Union Ministry to one Ex-M.P. (named Shri Shyam Bihari Mishra) in
response to some query which was made in a letter written by him, which is not produced on record. This communication only narrates that the
Central Order of 1977 was amended by the Amendment Order dated 10-11-1997 and the corrigendum dated 11-12-1997 deleting ''edible
oilseeds and edible oils'' from the Clauses of the Central Order. It was mentioned therein that the State Government and the Union Territories were
requested by the office letter dated 13-11-1997 to ensure compliance with the amendments ""to the said Order of 1997"". The letter dated 13-11-
1997 was written by the Chief Director of the Ministry of Food and Consumers Affairs to Secretaries of all States and Union Territories
forwarding the Amendment Order dated 10-11-1997 relating to deletion of certain clauses of the Central Order of 1977 insofar as they related to
''edible oilseeds and edible oils'' ""for information and compliance."" The learned single Judge held that the meaning of the word ''compliance'' in this
letter was not just re-notifying Central Amendment Order of 1997, but its meaning was to make necessary corrections, modifications or
amendments in the State Order of 1981 relating to storage and control of edible oilseeds and edible oils. It has been held that it was wrongly
assumed by the State Government that the delegated powers have not been taken back by the Central Government, and that the State Order of
1981 is still in operation in respect of ''edible oilseeds and edible oils''. In other words, the learned single Judge held mat the State Order of 1981
stood repealed as regards these items and the delegation u/s 5 stood withdrawn. Delegation u/s 5 was of general nature and not confined to any
particular foodstuff. The withdrawal of delegation could not have been effected except by modifying the notified order of 9-6-1998. If at all the
Central Government wanted to withdraw the delegation, it would have made necessary modifications in that order or issued directions to the State
Government to delete these items also from its Order of 1981. The Amendment Order dated 10-11-1997 deleting these items from the Central
Order of 1977 was not intended to amend the State Order of 1981 and there is no provision in the Amendment Order of 10-11-1997, which
would justify taking away or restricting the powers of the State Government, in respect of these commodities, which were delegated to it u/s 5 of
the said Act. In fact, in absence of the Central Order of 1977 governing the field by reason of deletion of these items, the question of any possible
conflict of the State Order with the Central Order vanished and the field was now left to the State Government as a delegate and its Order would
continue to operate in the field in absence of any direction to delete these items from the State Order. There is no provision in the Amendment
Order of the Central Government which by necessary implication can be said to be repealing any provision of the State Order of 1981. The
meaning given to the word ''compliance'' occurring in the letter dated 13-11-1997 under which a copy of the Amendment Order of 10-11-1997
was forwarded ""for information and compliance"", by the learned single Judge, is not at all warranted, since there was no express or implied repeal
of the provisions of the State Order of 1981, nor was the delegation of power made under the notified Order dated 9th June, 1998 u/s 5 of the
said Act withdrawn or curtailed by any subsequent order. The delegation continued to be valid for all foodstuffs including ''edible oilseeds and
edible oils''. The power delegated to the State Government u/s 3(1) read with Section 5 of the Act never depended on the exercise of power u/s
3(1) by the Central Government and it could be exercised irrespective of the fact whether the Central Government made any Order or not on the
same subject. The Order of the State Government did not derive its life from the Central Order of 1977, but from its powers u/s 3(1) read with
Section 5 of the said Act, and therefore, none of its provision will the by deletion or omission of the provisions of the Central Order of 1977.
11.1 The word ''compliance'' in the circular letter dated 13-11-1997 would in the context mean that the State should take into account the deletion
made in various clauses of the Central Order of 1977 so that it may not insist upon the compliance of the Central Order as it stood prior to its
amendment which imposed a duty on the dealers to give intimation regarding stocks of the ''edible oilseeds and edible oils'' to the Collector (Clause
4(2) of the Central Order) to furnish a fortnightly return to an authority specified by the State Government (under Clause 5 of the Second Order) in
respect of the stocks held by him. By no stretch of imagination, can the word ''compliance'' in the letter dated 13-11-1997 be construed to be a
direction to amend the State Order, because the State Order of 1981 derived its life not from the Central Order of 1977, but stood on its own by
virtue of the powers of the State Government u/s 3(1) read with Section 5 of the said Act and it continued to operate in absence of any direction to
delete these items from the State Order or by withdrawal of delegation. In short, there was no curtailment of the State Government''s powers either
by any amendment of the notified order issued u/s 5 or by issuing any directions as envisaged thereunder.
There is no warrant for holding that the views that are reflected in the communication sent by the Union Minister and the Secretary of the
concerned Department to the State, were an expression of any personal opinion of the Minister and the Secretary as has been held by the learned
single Judge. The letter dated 19th June, 1998 was written by the State Minister to the Union Minister for Food and Consumer Affairs and a copy
thereof was forwarded for urgent necessary action to the Secretary, Government of India by him in the concerned Department. In that letter, it was
pointed out that there was a price escalation of groundnut oil which rose from Rs. 39-00 per kg. in June, 1997 to Rs. 50-00 per kg. in June, 1998.
The Union Minister''s attention was drawn to the fact that there was speculative rise in prices and poor farmers had not been benefited at all. It was
mentioned that the interested lobby in edible oils had started taking advantage of hoarding the stock and had captured the market of edible oil in
Gujarat with the sole motive of fetching exorbitant profits. The State Minister wrote that it was therefore, absolutely imperative that the State
Government must have the powers to enforce strict control over the unscrupulous oil traders and millers, but unfortunately, ever since the
withdrawal of the Central Stock Control Order, 1977 in respect of edible oils and edibleseeds, they had absolutely a free hand, resulting in an
unprecedented price rise which had put the State Government in a very precarious situation. It was stated that if this trend was not checked
immediately, there were all chances of break -down of law and order, and that, from all quarters, the State Government was under a heavy
pressure and that there appeared a clear warning signal that if the prices were not arrested forthwith, a serious situation would arise in the State.
The State Minister requested the Union Minister to re-introduce stock control at the earliest so that the State Government can control the situation.
He earnestly requested the Union Minister to issue necessary concurrence in this regard at the earliest. It is clear from this communication that it
was not intended to be a letter expressing private views, but it was written by the Minister in charge of the concerned Department of the State to
the Union Minister of the Central Government who had an authority to issue such concurrence.
12.1 On 27th July, 1998 the Union Minister for Food and Consumer Affairs, Government of India responded to the letter of the State Minister
drawing his attention to the notified order dated 9th June, 1978, by which the Central Government had delegated the powers conferred by Section
3(1) of the Act, to make necessary orders to provide for matters specified in Clauses (a) to (j) of Section 3(2), to the State Government u/s 5 of
the said Act subject to certain conditions. It was stated that if the State Government finds it appropriate, it can regulate the storage, distribution etc.
of ''edible oilseeds and edible oils''. It was also stated that the State Governments would be the appropriate authority to take decision regarding the
permissible stock limits and the turnover period within their area of jurisdiction. The Union Minister also wrote that, considering the widespread
public perception that prices of essential commodities have risen sharply in the recent past, the State Government may like to take an emergent
decision for use of the said order dated 9th June, 1978 in respect of ''edible oilseeds and edible oils''. There can never be a clearer concurrence to
the State Government''s request for applying the State Order of 1981 which was issued with prior concurrence after the powers were delegated
under the notified order dated 9th -June, 1978 u/s 5 of the said Act to edible oilseeds and edible oils. This letter also cannot be said to be
expression of any private views of the Union Minister. He had taken into consideration the situation that had arisen in the State and the request of
the State Government for concurrence and indicated that the delegation of the powers under the notified order dated 9th June, 1978 stood good
notwithstanding the amendment in the Central Order of 1977 and that the State Government can go ahead with the stock control measures in
respect of these essential Articles. The communication by this letter was not a private message, but was meant to be an official response of the
Central Government to the request of the State Government asking it to restore the stock control over these essential commodities in view of the
consequences that had arisen because of the amendment in the Central Order of 1977, in this region. The Secretary to'' the Government of India to
whom the State Minister had forwarded a copy of his letter dated 19th June, 1998 had also officially responded by writing a letter to the Chief
Secretary of the State on 24th July, 1998, the contents of which are similar to diose of the communication of the Union Minister to the State
Minister sent on 27th July, 1998. There is a reference to the fact that some State Governments have represented that the Storage Control Order
pertaining to ''edible oilseeds and edible oils'' should be reimposed by the Central Government. In tact, this State was already having the State
Order of 1981 governing the field and that order was issued with prior approval of the government in exercise of the powers delegated to the State
Government and there was therefore, no need to make a fresh order after obtaining a fresh approval. As held by us hereinabove, the State Order
of 1981 continued to govern the field notwithstanding the amendment in the Central Order of 1977 and what could have earlier been done under
the State Order can be continued to be done under it with more freedom, especially in view of the fact that these items were deleted from the
Central Order of 1977 and there remained no possibility of any conflict between the exercise of powers by the State Government and the Central
Government in respect of these essential articles which the Central Order ceased to govern after its amendment.
12.2 By the communication dated Ist August, 1998 in response to the letter of the Secretary, Government of India, Ministry of Food and
Consumer Affairs, the State Government indicated that it will impose stock limits on ''edible oilseeds and edible oils''. The concurrence of the
Central Government on issuance of such specific direction under Clause 24(1), though not strictly required, was writ large in the communications of
the concerned Union Minister and the Secretary of the concerned Department of the Central Government. The Central Government in its affidavit
filed in this proceeding has stood by the State Government in respect of issuance of the directions under Clause 24(1) specifying the stock limits.
The State Order of 1981 already contained a stock limit in me tabulated form in Clause 3 thereof in context of obtaining a licence. The State
Government had after entering into correspondence with the Central Government and obtaining the clearance for issuing stock control directions,
issued order dated 14th August, 1998. Clause 24(1) of the Government Order of 1981 empowered the State Government to issue directions to
dealers or producers, inter alia, regarding maintenance of stock, storage, display of prices etc. and every dealer or producer to whom such
direction was issued, was required to comply with the same. Clause 24 already had prior concurrence of the Central Government which is noted in
the preamble of the Gujarat Order of 1981. Therefore, the issuance of the directions which are in fact at the behest of the Central Government,
regarding maintenance of stocks under Clause 24(1) at a time when there were no directions governing the field issued by the Central Government,
was a matter permissible under the Gujarat Order of 1981 and issuance of such directions did not in any way conflict with any provisions of the
Central Order of 1977, which ceased to contain any direction regarding maintenance of stock of edible oilseeds and edible oils after the
amendment made on 10-11-1997.
12.3 In the above view of the matter, there was no valid basis or reason for issuing a declaration that the words ''edible oilseeds and edible oils''
should stand deleted from the Gujarat Order of 1981 or for setting aside the directions issued by the State Government regarding maintenance of
stock under Clause 24(1) of the State Order of 1981. We, therefore, find no justification for granting any relief to the petitioners as has been done
in the impugned order. For the reasons that we have given hereinabove, we are, with respect, unable to agree with the opinion of the learned single
Judge and the views expressed by the Andhra Pradesh High Court on the subject. Since the SLP was summarily dismissed by the Supreme Court,
we have found no impediment in our considering the matter, and, in all fairness to the learned Counsel for the contesting respondent, we may say
that he did not contend that, because the SLP was summarily dismissed against the decision of the Andhra Pradesh High Court, we should treat
that as a decision binding on us.
In the above view of the matter, both these appeals are allowed and the impugned judgment and order of the learned single Judge is hereby set
aside. Both the petitions stand rejected. There shall be no orders as to costs all throughout.