Remember | Register | Forgot Password?
Bookmark This Page   RSS Feeds  Follow On Twitter

 

Search for Lawyers          
    

Home > SC > Criminal Law > Essential Commodities Act > RAM CHANDRA MAWA LAL AND OTHERS ETC. Vs. STATE OF UTTAR PRADESH AND OTHERS ETC.



Please Wait ..


RAM CHANDRA MAWA LAL AND OTHERS ETC. Vs. STATE OF UTTAR PRADESH AND OTHERS ETC.

Posted on 22 June 2009 by jyoti

Title

RAM CHANDRA MAWA LAL AND OTHERS ETC. Vs. STATE OF UTTAR PRADESH AND OTHERS ETC.



Coram

VARADARAJAN, A. (J)



Act

Essential Commodities Act



Subject

Defence of India Rules, 1971 promulgated under Defence
of India Act, 1971-Rule 114-Interpretation of-Whether State
Government can fix price of an article declared to be
essential commodity under the Essential Commodities Act,
1955 in respect of which Central Government has already
fixed price under Fertilizer (Control) Order, 1957
promulgated under the Essential Commodities Act, 1955.
Defence of India Rules, 1971-Rule 114 (3)(h)-Scope of-
Expression 'any' article-includes fertilizers.
Interpretation-Rule of-What is test for ascertaining
whether conflict between Central and State statutes
irreconcilable.
Uttar Pradesh Fertilizer Prices (Supplementary) Order,
1974-Validity of.





Citation

1987 AIR 1837, 1984( 2 )SCR 348, 1984Suppl.SCC 28, 1984( 1 )SCALE48 ,



Head Notes

On October 11, 1973, the Central Government in exercise
of power under cl. (3) of the Fertilizers (Control) order,
1957 promulgated under s.3 of the Essential Commodities Act,
1955, issued a notification fixing the maximum retail
selling price of certain fertilizer which dealers could
charge from consumers leaving with the dealers a very low
margin of profit. Some time later in order to compensate the
manufactures for the higher cost of inputs, the Central
Government issued another notification on June 1, 1974
fixing a very high retail selling price of the fertilizer to
be charged by the dealers from the consumers. The dealers
started charging the higher price fixed by notification
dated June 1, 1974 at the lower rate thus earning fabulous
profit. On June 14, 1974 the State of Uttar Pradesh issued a
notification (Uttar Pradesh Fertilizer Price (Supplementary)
Order, 1974) in exercise of power under rule 114 of the
Defence of India Rules, 1971 promulgated under the Defence
of India Act, 1971. This notification stated that the stocks
of fertilizer acquired upto May 31,1974 by the dealers and
which remained unsold with them should be sold only at the
price fixed by the Central Government's notification dated
October 11, 1973 and not by notification of June 1,1974. The
appellants (dealers) challenged before the High Court the
legality and validity of the State Government's notification
dated June 14, 1974 on the grounds: (1) that the fertilizer
in question having been declared an essential commodity
under the Essential Commodities Act, 1955, an Act specially
enacted inter alia for regulating prices of essential
commodities, its price could be regulated only under that
Act and not under the Defence of India Rules: (2) that the
notification being inconsistent with the Central
Government's notification dated dated June 1, 1974 was
invalid : and (3) that the notification being discriminatory
was violative of Art. 14 of the Constitution. The High Court
upheld the
validity of the impugned notification and dismissed the writ
petitions. Hence these appeals.
Dismissing the appeals by majority.
^
HELD:
(Per Murtaza Fazal Ali and Thakkar, JJ.)
Both the Essential Commodities Act, 1955, as also the
Defence of India Rules of 1971, are Central legislations
enacted by the Parliament. There is no constitutional or
jurisprudential limitation on the competence of the
Parliament to create two avenues or sources of power for the
regulation of prices of articles. Since Parliament can
constitutionally and validly enact two statutes creating two
sources of power, and since, under both the statutes prices
of fertilizers can be regulated, there is no illegality in
acting under either or both.[357 D-E]
Under the DIR power has been conferred, inter alia, to
regulate the price of any article. The expression `any
article' is wide enough in its amplitude to envelope
`fertilizers'. The fact that `fertilizers' have been
declared as an essential commodity under the Essential
Commodities, Act, 1955 and its price can be regulated under
the powers conferred by that Act, is altogether immaterial.
[357 H; 358 A]
The Centre and the State both cannot speak on the same
channel and create disharmony. If both speak, the voice of
the Centre will drown the voice of the State. The State has
to remain `silent' or it will be `silenced'. But the State
has the right to `speak' and can `speak' (with
unquestionable authority) where the Centre is `silent',
without introducing disharmony. If the Centre sits only on a
portion of the Chair, the state can sit on the rest of the
portion with arms thrown on the shoulders of each other.
While the State cannot sit on the lap or on the shoulders of
the Centre, both can certainly walk hand-in-hand, lending
support to each other, in a friendly manner, towards the
same destination. If the Centre. has built a wall, had has
left a gap from which intruders can infiltrate, the state
can fill the gap in the wall, and thus make its own
contribution to the common cause. What is more, each in
theory and principle. must be presumed to be conscious of
the need for accord and need for accommodating each other in
the interest of `NATIONAL HARMONY'. [360C-F]
A general statute applies to all persons and localities
within its jurisdictional scope, prescribing the governing
law upon the subject it encompasses, unless a special
statute exists to treat a refinement of the subject with
particularity or to prescribe a different law for a
particular locality. Where, however, the later special or
local statute is not irreconcilable with the general statute
to the degree that both statutes cannot have a conterminous
operation, the general statute will not be repealed, but the
special or local statute will exist as an exception to its
terms. [361 B-C]
sutherland's Statutory Construction, 3rd Edition. Vol,
1. page 488, referred to
One of the tests for ascertaining whether the
inconsistency is an irreconcilable or intolerable one, is to
pose this 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. Not at any rate when the
State law merely `promotes' the real object of both the
laws, and is in the real sense `supplementary' or
complementary' to the Central law.
In the present case, the Central notification is
altogether silent on the ramification regarding sales from
out of existing stocks acquired by the dealers at lower
rates. The impugned State notification, on the other hand,
deals exclusively with this aspect. The State notification
speaks on a refinement of the subject about which the
Central notifications is blissfully. unaware and on which it
is altogether silent. Both notifications can therefore
safely be construed as supplementary and friendly rather
than inconsistent or hostile. [360 B-C]
In the instant case, assuming that there is
inconsistency between the Central Government's notification
and that of the State Government, it does not appear to be
an irreconcilable or intolerable one, so as to invalidate
the State Government's notification. In the present case the
test answers in favour of the validity of the impugned State
notification. The Central notification is not violated if
the dealers sell the fertilizers from out of the existing
stocks acquired at the lower rates, for both the
notifications fix the minimum selling price and the maximum
selling price fixed under the State notification is not
higher than that fixed under the Central notification. What
is more, the state notification `promotes and serves' the
object and purpose of both the Centre and the State.
`Promotes and serves' in the sense, that the manifest object
of fixing maximum ceiling price is to make available to the
cultivators who grow the food for the NATION to obtain the
inputs at reasonable prices and to protect them from
exploitation so that the food production is not retarded.
[362 A-C]
Art. 254(2) does not envision Presidential assent to
`notifications' issued under an Act (as distinguished from
`laws made by legislature). [363 F]
Kerala State Electricity Board v. Indian Aluminium Co.
[1976] 1 S.C.C 466 at p. 478, referred to.
The impugned notification is not violative of Art. 14
of the Constitution since the very basis of the challenge on
the score of hostile discrimination is found to be non-
existent.[364 D]
(Per Vardarajan J. dissenting)
It cannot be assumed that Parliament which had already
legislated in the Essential Commodities Act, 1955, a
permanent measure, in respect of fertilizer intended to
legislate once again and could have felt the need to
legislate once again in the temporary Defence of India Act,
1971 in respect of the same article especially because what
could be done under the Defence of India Act and the Rules
which may be framed thereunder could as well be done with
equal force under the Essential Commodities Act and orders
which may be passed thereunder. [377 B-C]
Section 3(2) of the Essential Commodities Act lays down
that the Central Government may, having regard to the local
conditions of any area and other relevant circumstances, fix
different prices or rates in respect of different areas
and for different classes of consumers. The State Government
could have requested the Central Government to act under
s.3(2) of the Essential Commodities Act and fix a different
price or rate for the sale by dealers in that State of
fertilizer carried over from the stock held on 31.5.1974.
Section 5(b) of the Essential Commodities Act provides for
delegation of powers and says that the Central Government
may, by notified order, direct that the power to make or
issue notifications under s.3 of that Act shall, in relation
to such matters and subject to such conditions, if any, as
may be specified in the direction be exercisable also by
such State or such officer or authority subordinate to a
State Government as may be specified in the direction. The
Central Government has not issued any direction under s.
5(b) of the Essential Commodities Act delegating its power
to issue notification under s.3 of that Act to the State
Government or any officer or authority of that Government.
The State Government has thus not resorted to the provisions
contained in s.3(2) or s.5(b) of the Essential Commodities
Act, but the proceeded of fix the price of fertilizer on its
own under the Defence of India Rules, 1971 which it cannot
do under those Rules and the Defence of India Act, 1971 in
respect of the essential commodity. [377 H; 378 A-D]
The Defence of India Act, 1971, which was a general and
temporary Act, and the Rules framed thereunder cannot apply
to fertilizer which is an essential commodity government by
the Essential Commodities Act, 1955 and the Fertilizer
(Control) Order, 1957 made under the provisions of that Act.
Therefore the State Government cannot without delegation
issue any notification under the Defence of India Act and
Rules, 1971 in regard to the price of fertilizer, an
essential commodity governed by the Essential Commodities
Act and the Fertilizer (Control) order, 1957. [378 H; 379 A-
B]
There does not appear to be any provision in Art.
254(2) of the Constitution for placing any notification made
by a State Government under the Defence of India Rules, 1971
for consideration by the President. [380 C]
If the State Government's impugned notification is
assumed to be a law enacted by that State's Legislature on
Entry 26 of List II, since the Act of Parliament passed on
Entry 33 of List III and the Fertilizer (Control) order,
1957 passed under that Act were already in force, the assent
of the President had to be received in order that the State
Government's notification assumed to be a law enacted by the
State's Legislature may prevail in the State as required by
Article 254(2) of the Constitution. There is nothing on
record to show that the impugned notification of the State
Government was placed before the President for his assent
and that his assent has been received. Therefore, the State
Government's impugned notification even as a law cannot
prevail over the earlier notification of the Central
Government. [389 F-G; 380 C]
Zaverbhai Amaidas v. State of Bombay. [1955] 1 SCR 799,
referred to.
There is a clear conflict between the two notifications
is respect of the same essential commodity, fertilizer, for
under the Central Government's notification dated 1.6.1974
the price at which a dealer can sell fertilizer of the
concerned variety is Rs. 2000 per ton while under the State
Government's notification dated 14.6.1974 is only Rs. 1050
per ton though no doubt it is restricted to the stock
carried over from 31.5.1974 which is immaterial in judging
the power of the State Government to fix the price of an
essential commodity by a notification
made under the Defence of India Rules, 1971 in respect of
which the Central Government had already fixed the price
under the Fertilizer (Control) order, 1957. Once the Central
enactment and the Central Government's notification govern
the price of an essential commodity the State Government's
notification issued in exercise of the delegated authority
under the Defence of India Act and the Rules framed
thereunder cannot prevail. [380 F-H]
The two enactments have to be read in such a way that
there is no conflict between them while giving effect to
them in their respective fields. of operation. If the
Essential Commodities Act, 1955 and the Fertilizer (Control)
order, 1957 are considered to apply exclusively to
fertilizer, an essential commodity, and the Defence of India
Act, 1971 and the Defence of India Rules, 1971 are
considered to apply to other commodities excluding essential
commodities there would be no conflict whatsoever between
the Essential Commodities Act and the Defence of India Act
and between the notification issued under Fertilizer
(Control) order, 1957 and the Defence of India Rules, 1971.
[381 A; 383 D-E]
The author of the two enactments, Essential Commodities
Act, 1955 and Defence of India Act, 1971 is the same,
namely, Parliament, and Parliament must be held to have not
intended to contradict itself while dealing with distinct
matters or situations under those enactments. If the State
Governments are free to fix their own prices in
notifications issued by them under the Defence of India
Rules, 1971 when the Central Government's notification
fixing a single price for the whole country in respect of an
essential commodity is in force that notification of the
Central Government will become otiose. The question whether
Parliament would have intended such a consequence. The
answer can only be an emphatic no. [382 D-E]
Craies on Statute Law (seventh edition) at Page 222 and
Maxwell on the Interpretation of Statutes, referred to.
What has been done by the State Government under the
impugned notification is utterly lacking in power and cannot
be allowed to stand merely because it relates only to a
comparatively small quantity of fertilizer carried over from
the stock of 31.5.1974 and was intended to benefit and
protect agricultural consumers and prevent dealers from
making undue profits.[384 F]



Judgment Made On

01/09/1984

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1568-
76, 1609-12, 1656, 1672, 1675-80, 1707, 1616, 1644, 1645,
1646, 1671, 1673, 1708 of 1974.
From the Judgment and order dated 14th August & 12th
September, 1974 of the Allahabad High Court in Civil Writ
Petition Nos. 3422, 3498, 3430, 3462, 3491, 3429, 3427,
3423, 3472, 3443, 3473, 3474, 3494, 3439, 788, 774, 786,787,
791, 793, 869, 3428, 3502, 3420, 3421, 3528, 3478, 3477, &
3478 of 1974.
Yogeshwar Prashad, S. C. Manchanda, S. K. Bagga,
353
Pramod Swarup, O.P Agarwal, Ms, Baby Krishnan G.S.
Chaterjee. Mrs. S.Dikshit, R.N. Trivedi Miss R. Govind for
the Appellants.
The following Judgments were delivered
THAKKAR, J. The Constitution which promises a
socialistic pattern of Society in the preamble and traces
the contours of the socialistic philosophy which permeates
the spirit of the Constitutional can neither command nor
commend the exercise of the Constitutional Jurisdiction to
issue HIGH PREROGATVE WRITS under Art. 32 226 or 227 in
order not to remove injustice but to do injustice in order
not to prevent exploitation of the poor by the rich, but to
permit such exploitation. And yet the CONSTITUTIONAL
JURISDICTION of the Court (as polarzed from its 'ERROR
JURISDICTION' has been invoked in order to use the hand of
the Court for transferring money from the pockets of poor
cultivators (who feed the Nation) to the pockets of the
dealers in fertilizers (who feed themselves) by Challenging
a notification on technical grounds. Such jurisdiction is
invoked to enable the dealers to reap a 'rich' harvest of
'unjust enrichment' through the instrumentality of the Court
at the cost and expenses of the cultivators. We firmly
believe that the Court exercising CONSTITUTIONAL
JURISDICTION is not obliged to grant a writ in such
circumstances. But we need not elaborate on the theme
furthermore as the High Court has rejected the petition on
merits and as we are of the same opinion.
Events leading to the institution of the Writ Petitions
under Article 226 of the Constitution of India giving rise
to this group of appeals (by certificate of fitness granted
by the Allahabad High Court) have taken the following
course:
(i) On October 11,1973 the Central Government issued a
notification fixing the maximum retail selling
price of certain varieties of fertilizers to the
consumers. It was issued in exercise of powers
under clause (3) of the Fertilizer (Control) order
of 1957 promulgated under Section 3 of the
Essential Commodities Act of 1955. (referred to as
'Act' hereinafter).
(ii) Some time later, on June 1,1974 the Central
Government issued a Notification whereby the
maximum retail selling price of different
varieties of fertilizers was steeply revised
upwards in order to compensate the 'manufac-
354
turers' in the context of the spurt in the prices
of various inputs. The extent of the rise may be
illustrated by taking the instance of 'Urea 46%
Nitrogen. Its price was revised upwards from Rs.
1090 per ton to Rs 2000 per fon.
(iii) On June 14 1974 the State of' Uttar Pradesh issued
the Uttar Pradesh Fertilizer Prices
(Supplementary) Order 1974 in exercise of the
powers conferred by Rule 114 of the Defence of
India Rules, 1971 adverted to as 'D.I.R.
hereinafter. Under this notification the
registered 'dealers' were prohibited from charging
to the cultivators price in excess of the maximum
price prevailing immediately prior to the upward
revision authorised by the Central Government on
June 1, 1974 in respect of stocks acquired at pre-
revision rates held by the dealers on the eve of
the upward revision of prices.
(iv) The net result of the two last mentioned
notifications was as follows: The dealers could
sell to the cultivators fertilizers at the higher
rates authorised by the notification dated June 1
1974 from out of the stocks acquired thereafter
under both the notifications. As regards the
stocks acquired after June 1 1974 the registered
dealers were not affected by the notification
issued by the State Government under the DIR in as
much as the notification issued by the Central
Government authorising the upward revision
remained unaffected by the notification issued by
the State. The dealers however could not sell the
fertilizers at the higher rates from out of the
existing stock acquired by them at the lower rates
immediately prior to the upward revision effected
on June 1 1974 in view of the aforesaid
notification issued by the State Government on
June 14 1974. Taking the instance of 'Urea 46%
Nitrogen' the net impact of the impugned State
notification was that the 'dealers' were not
permitted to charge to the cultivators Rs. 2000
per ton instead of Rs. 1090 per ton in respect of
stocks acquired at the lower rates.
(v) It was in this background that the dealers
instituted the petitions giving rise to the
present appeals by certificate, challenging the
legality and validity of the
355
impugned notification issued by the State
Government on June 14 1974.
Now, the following facts are not in dispute:
(i) The registered 'dealers' were entitled to a fixed
profit margin of Rs. 45 per ton (and no more)
under the terms and conditions of the licence held
by them.
(ii) The stocks acquired prior to June 1 1974 were
meant for sale to the cultivators at the pre-
upward revision rates at which rates the dealers
had acquired the stocks. This stock had remained
unsold with the dealers till than because the
cultivators had not been able to effect their
purchases till that date.
(iii) The price rise was authorised to compensate the
'manufacturers' in the context of the spurt in the
price of various 'inputs' and had no bearing on
the selling price for the 'dealers' who were not
concerned with the cost of production.
(iv) In case the State Government had not issued the
impugned notification dated June 14 1974 the
dealers would have been enabled to charge about
twice the prices at which the stocks were made
available to them for sale prior to the
notification. For instance 'Urea 46%. Nitrogen'
made available to the dealers for effecting sales
to the cultivators at Rs. 1090 per ton could have
been sold to the cultivators at Rs. 2000 per ton.
Thus they would have been enabled to make a wind
fall bumper profit of Rs. 910 per ton (in respect
of 'Urea 46% Nitrogen') as against permitted
profit margin of Rs. 45 per ton (i.e. about 1000%
in place of about 5%) and to secure unjust
enrichment' for themselves to such an
unconscionable extent at the cost of the
cultivators.
It is in the backdrop of these undisputed facts that
the question regarding the validity of the impugned
notification dated June 14 1974 issued by the State of Uttar
Pradesh came to be challenged before the High Court of
Allahabad.
The impugned notification was issued in order to meet a
problem
356
which arose in the peculiar facts and circumstances of the
situation. The problem arose apparently because the
competent authority exercising the powers of the Central
Government under the Essential Commodities Act overlooked
that the dealers who were concerned with the distribution of
the fertilizers to the cultivators on a fixed and assured
profit margin of Rs 45 per ton would be having with them
stock-in-trade obtained at the pre-enhancement prices. And
that they might take under advantage of the situation by
charging a higher rate to the consumers even in respect of
the stocks acquired at the lower rates The dealers could and
should have sold the stock in-trade acquired at the pre-
enhancement price at the hiterto prevailing rates till the
old stocks were exhausted. That is what would have been
expected of them having regard to the fact that they were
getting a fixed and assured margin of profit of Rs. 45/- per
ton and that the enhancement of the price was necessitated
and made solely to neutralize the rise in the cost of the
inputs which phenomenon affected only the 'manufacturers'
and not the 'dealers'. There was therefore no occasion or
justification on their part for charging a higher price to
the consumers in regard to the sales effected from the
existing stocks acquired at the lower rates. The
notification issued by the Central Government on June 1 1974
was silent on the question of selling prices in respect of
sales from out of stocks acquired earlier at the lower rate.
Since the said notification issued by the Central Government
was silent the State Government which appears to have been
more vigilant stepped in and exercised powers which were
conferred on it by the DIR.
The challenge before the High Court was made on three
main grounds, viz:
(A) The Central Government having issued a
notification in exercise of powers under the
Essential Commodities Act 1955 the State
Government could not have issued the impugned
notification under the Uttar Pradesh Fertilizer
Prices (Supplementary) order 1974 issued in
exercise of the powers conferred under Rule 114 of
the 'DIR. The power to fix the maximum price in
respect of fertilizers could be exercised only
under the Essential. Commodities Act it being a
special Act and could not have been exercised by
the State Government by issuing an order under the
'D.I.R.'
(B) Even if the State Government had the power to
issue
357
the notification under the D.I.R. the notification
was invalid by reason of its inconsistency with
the notification issued by the Central Government
on June 1 1974 under the Essential Commodities Act
1955.
(C) The impugned notification was violative of Article
14 of the Constitution of India.
The High Court of Allahabad negatived all the three
contentions by an extremely well considered and well
reasoned judgment. In the present group of appeals by
certificate the original petitioners have reiterated the
same contentions before this Court.
Re: Ground A: The argument in substance is that
Essential Commodities Act 1955 is a special Act under which
the price relating to a commodity declared to be an
essential commodity can be regulated. The power to regulate
the price in respect of such an essential commodity cannot
therefore be exercised under Defence of India Rules 1971 or
under any other provision of law.
Now, both the Essential Commodities Act 1955 as also
the Defence of India Rules of 1971 are Central legislations
enacted by the Parliament. The 'D.I.R.' were brought into
force by the Parliament in 1971 in order to meet an
emergency situation. The legislative competence of the
Parliament to enact the legislation. On the subject in
question namely fixation of prices of all articles is not
questioned. The Parliament having competence to legislate in
regard to the subject has enacted both the legislations one
in 1955 another in 1971.
The impugned notification has been issued under the
latter statute. The 'D.I.R.' having been enacted later it
cannot and it has not been contended that the doctrine of
repeal is attracted. Since there is legislative competence
since the statute is not eclipsed by the doctrine of express
or implied repeal how can the power exercised under the
valid statute be assailed ? The only argument advanced a
misconceived one in our opinion. is that since the 'Act'
deals with essential commodities and fertilizer has been
declared under the Act as an essential commodity the power
conferred by the 'D.I.R.' cannot be exercised in respect of
regulation of the price of such a commodity or article. It
is not disputed that under the DIR power has been conferred
inter-alia to regulate the price of 'any' article. The
expression 'any article' is wide enough in its amplitude
358
to envelope 'fertilizers'. The fact that 'fertilizers' have
been declared as an essential commodity and its price can be
regulated under the powers conferred by the Act is
altogether immaterial. There is no constitutional or
jurisprudential limitation on the competence of the
Parliament to create two avenues or sources of power for the
regulation of prices of articles. There is nothing in
principle or precedent to support the proposition that two
avenues or sources of power cannot be validly created. What
then is the fabric of the challenge ? The only answer
offered by the counsel is that the Act is a statute
specially enacted inter alia for regulation of the prices of
commodities declared to be essential and therefore in
respect of such commodities the power can be exercised only
under the Act. We are unable to accede to this argument
Since as discussed earlier Parliament can constitutionally
and validity enact two statutes creating two sources of
power and since under both the statutes prices of
fertilizers can be regulated; there is no illegality in
acting under 'either' or 'both'. Counsel however seeks
support from the following passage from Craies on Statute
Law(1)
"Acts of Parliament some times contain general
enactments relating to the whole subject-matter of the
statute and also specific and particular enactments
relating to certain special matters; and if the general
and specific enactments prove to be in any way
repugnant to one another the question will arise which
is to control the other ? In Pretty v. Solly. (1859)
26 Beav. 606 610. Romilly M.R. stated as follows what
he considered to be the rule of construction under such
circumstances. "The general rules" said he "which are
applicable to particular and general enactments in
statutes are very clear; the only difficulty is in
their application. The rule is, that whenever there is
a particular enactment and a general enactment in the
same statute and the latter taken in its most
comprehensive sense would over rule the former the
particular enactment must be operative and the general
enactment must be taken to affect only the other parts
of the statute to which it may properly apply."
(Emphasis added)
It is overlooked that the said passage deals with
different pro-
359
visions in the "same" statute. That when there is a special
provision in the very same statute in regard to a subject
matter the special provision of the statute will ordinarily
prevail in rivalry or competition with the general provision
is a proposition with which there is no quarrel. But then we
are not at all concerned with any rivalry between two
provisions of the 'same' statute. We are faced with two
enactments by the same legislature which create two sources
of power to achieve the same purpose. To repeat what has
been observed earlier there is no legal bar to creating two
sources of power. And there is no authority in principle or
precedent for contending that one source of power is more
valid than the other. Or that the power validly conferred by
the same legislature can be exercised only under one and not
the other of the two statutes leaving aside the question of
irreconcilable or intolerable inconsistency. We therefore
confirm the view of the High Court and repel the challenge.
Re: Ground B: The validity of the impugned notification
issued by the State under the 'DIR' is assailed on the
ground that it is inconsistent with the earlier notification
issued by the Centre. As discussed earlier the Central
notification does not 'specifically' deal with the question
as regards selling price in respect of sales from the
existing stocks acquired by the dealers at the pre-
enhancement prices which remained unsold with them as the
cultivators could not effect purchases till then. In other
words the Central notification does not deal with this
ramification at all. It does not show awareness of this
dimension and is altogether silent on the subject. The
impugned State notification issued later on the other hand
deals specifically pointedly and solely with this dimension.
It is in this perspective that the issue has to be judged
bearing in mind the undisputed position that there is no
Centre-State conflict involved in the sense that (1) the
Centre which is not even impleaded as a party does not
question the power of the State or the validity of the
notification as impinging on its (Centre's) jurisdiction or
authority; (2) Centre has not asserted its superior
authority from the standpoint of Centre-State-power equation
in order to supersede the State notification.
The question clamoring for solution in this scenerio
has two facets viz:
(1) Whether there is any inconsistency between the
Central notification on the one hand and the State
notification on the other and;
360
(2) whether the inconsistency is an irreconcilable or
intolerable one:
Is there inconsistency?
The Central notification as discussed earlier is
altogether silent on the ramification regarding sales from
out of existing stocks acquired by the dealers at lower
rates. The impugned State notification on the other hand
deals exclusively with this aspect. The State notification
on speaks on a refinement of the subject about which the
Central notification is blissfully unaware and on which it
is altogether silent. The two do not overlap. There is
therefore no real inconsistency. The principle may be stated
thus. The Centre and the State both cannot speak on the same
channel and create disharmony. If both speak, the voice of
the Centre will drown the voice of the State. The State has
to remain 'silent' or it will be 'silenced'. But the State
has the right to 'speak' and can 'speak' (with
unquestionable authority) where the Centre is 'silent'
without introducing disharmony. If the Centre sits only on a
portion' of the Chair the State can sit on the rest of the
portion with arms thrown on the shoulders of each other, in
a friendly manner towards the same destination. If the
Centre has built a wall and has left a gap from which
intruders can infiltrate the State can fill the gap in the
wall and thus make its own contribution to the Common Cause.
What is more each in theory and principle must be presumed
to be conscious of the need for accord and need for
accommodating each other in the interest of 'NATIONAL
HARMONY'.
The Centre can object to the State speaking on the same
channel or sitting on its shoulders and perhaps even
override the State. But the Centre and the State can
certainly accommodate each other in a friendly spirit in the
overall NATIONAL INTEREST when both of them are trying to
supplement each other. In the present case both
notifications can safely be construed as supplementary and
friendly rather than inconsistent or hostile. The Centre
does not question to the State speaking on the nuance on
which the Centre has maintained silence. There is therefore
no real element of inconsistency in the two notifications.
The following passage extracted from Statutory
361
Construction by Sutherland (para 2022(1),) shows that the
aspect relating to 'refinement' is a well recognized factor
and that the state law can be treated as an exception when
the inconsistency is not irreconcilable :-
"A general statute applies to all persons and
localities within its jurisdictional scope, prescribing
the governing law upon the subject it encompasses,
unless a special statute exists to treat a refinement
of the subject with particularity or to prescribe a
different law for a particular locality. Likewise where
a later statute adapted for a particular locality
conflicts with a general law of state-wide application,
the special or local law will supersede the general
enactment. Where, however, the later special or local
statute is not irreconcilable with the general statute
to the degree that both statutes cannot have a
coterminous operation, the general statute will not be
repealed, but the special or local statute will exist
as an exception to its terms."
(Emphasis added)
Assuming for the sake of argument that it is considered
to be an inconsistency, it does not appear to be an
irreconcilable or intolerable one so as to invalidate it, as
will be presently shown.
Is the alleged inconsistency irreconcilable or intolerable
one ?
There are degrees of inconsistency in the context of
conflict of laws. There can be apparent or surface
inconsistency which may be considered as a non-hostile,
tolerable, benign, one, subject to the unquestioned power of
the Centre to override the State if so minded. On principle,
every apparent inconsistency cannot be presumed to be
hostile or intolerable. More so when the Centre does not
even raise a whisper of discord. One of the tests for
ascertaining whether the inconsistency is an irreconcilable
or intolerable one, is to pose this 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. Not at any
rate when the State law merely 'promootes' the real object
of both the
362
laws, and is in the real sense 'supplementary' or
'complementary' to the Central law. In the present case the
test answers in favour of the validity of the impugned State
notification. The Central notification is not violated if
the dealers sell the fertilizers from out of the existing
stocks acquired at the lower rates, for both the
notifications fix the maximum selling price and the maximum
selling price fixed under the State notification is not
higher than that fixed under the Central notification. What
is more, the State notification 'promotes and serves' the
object and purpose of both the Centre and the State.
'Promotes and serves', in the sense, that the manifest
object of fixing maximum ceiling price is to make available
to the cultivators who grow the food for the NATION to
obtain the inputs at reasonable prices and to protect them
from exploitation so that the food production is not
retarded. It is not contended even by the petitioners, for
the very good reason that it is incapable of being so
contended, that the object of the price regulation is to
enable the dealers to make unconscionable profit. Thus the
impugned State notification promotes rather than 'defeats',
the 'life-aim' of Central as also the State notifications.
It 'helps' rather than 'hurts' the objectives and goals of
the Centre, and there is no conflict whatsoever of
'interest', 'purpose', or 'perspective'. The State has done
only that which the Centre presumably would have readily
done if it was fully aware of the situation from all angles
of vision. For, the only impact of the impugned notification
is that the 'cultivator' for whose protection the price
regulation is essentially made, is saved from exploitation
without hurting the legitimate claim of the dealer, who, in
any case, gets his fixed profit margin of Rs. 45/- per ton.
In Australian Boot Trade Employee's Federation v.
Whybrow Co.,(1) the High Court of Australia in a somewhat
similar situation held that there was no inconsistency
between a State law fixing a minimum wage for workers in the
boot trade of 1$ per hour and a federal law fixing a minimum
wage for the same workers of 1-1/2 $ per hour. Speaking
through Barton, J. the court observed :-
"The determinations of the wages boards (in effect
the State law) and the proposed award (in effect, the
Commonwealth law) are courched in the affirmative in
respect of the material part of each, the provision as
to the minimum wage. None of them prescribed an
inflexible rate. The (State) determinations prescribe a
minimum and it is in each case
363
lower than the minimum named by the proposed
(Commonwealth) award. By paying the latter minimum an
employer will be obeying both laws. The affirmative
words of the (Commonwealth) award, therefore, do not
"impart a contradiction" between it and the (State)
determinations. It is impossible to say that the
employer cannot obey the one without disobeying the
other. Therefore, the former and the latter may stand
together. Therefore, according to the proper test, they
are not inconsistent."
(Emphasis added)
It would thus appear that in a somewhat parallel
situation the Australian High Court had taken the view that
since both laws can be obeyed without disobeying any, there
is no conflict. In the present case also an endeavor must be
made to place a harmonious interpretation which would avoid
a collision between the two. Another way of looking at the
problem is this: The impugned notification, though issued by
the State, has its source of power in the 'DIR' which is a
Central Statute enacted by the Parliament. The State is
merely an instrumentality for executing the purpose of the
Central Act. The impugned notification which is 'later' in
point of time must, therefore, prevail to the extent it
'speaks' on the refinement or nuance of the matter on which
nuance the earlier notification is 'silent'. In any view of
the matter, therefore, the challenge from this platform
cannot succeed.
It may be mentioned that a half-hearted argument was
advanced that Art. 254(2) would be attracted and
Presidential assent would become necessary in order to give
effect to the impugned notification. There is no merit in it
in as much as Art. 254(2) does not envision Presidential
assent to 'notifications' issued under an Act (as
distinguished from 'laws made by legislature') as has been
observed by a Constitution Bench of this Court in Kerala
State Electricity Board v. Indian Aluminium Co.,(1) wherein
Alagiriswami, J. speaking for himself and for Bhagwati,
Goswami and Sarkaria JJ. says:-
"Was it necessary to get the President's assent
for this notification as contended by some of the
respondents ? Quite clearly no Presidential assent was
possible to the notification. Article 254(2) does not
contemplate Presidential
364
assent to notifications issued under the Act. The
article contemplates Presidential assent only to laws
made by the legislature of a State." This ground of
attach also accordingly fails.
Regarding ground (C): The appellants contended that the
impugned notification was violative of Art. 14 of the
Constitution of India and was therefore invalid. The
argument was advanced on the assumption that the State
Government had permitted governmental agencies falling
within the definition of 'dealer' in the Fertilizer Control
Order, 1957 to sell the stocks held by the said agencies
immediately preceding the issuance of the impugned
notification dated June 1, 1974 at the higher rates. This
allegation has been controverted by the State of Uttar
Pradesh. A reference to the counter-affidavit sworn by the
Accounts Officer, Fertilizers and Manuals Directorate of
Agriculture, field in C.M.P. No. 6773 of 1974 clearly shows
that the State Government had not granted any such
permission. Thus, the very basis of the challenge on the
score of hostile discrimination is found to be non-
existent. The High Court was perfectly justified in
rejecting this contention. We, therefore, confirm the view
taken by the High Court.
Thus all the grounds called into aid by the appellant
for challenging the impugned notification are found to be
devoid of substance.
Under the circumstances the appeals fail and are
dismissed. Having regard to the facts and circumstances of
the case there will be no order regarding costs.
The interim orders passed by this Court are hereby
vacated. In the result, the concerned District Magistrate
will now have to take appropriate steps to pass on and pay
to the cultivators the differential amount deposited by the
dealers pursuant to this Court's orders dated September 2,
1974, and, October, 10, 1974, as early as possible. And, in
any event, within six months of this order, after proper
verification. We order accordingly.
Appeals dismissed. Interim orders vacated.
365
VARADARAJAN, J. Civil Appeal 1656 of 1974 is by special
leave. The other appeals are by certificate granted by the
Allahabad High Court. All the appeals arise out of the
judgment of a Division Bench of that High Court in a batch
of writ Petitions out of which W.P. No. 3421 of 1974 was
treated as the leading case. Civil Appeals 1568-1576 of 1974
and batch have arisen out of that batch of Writ Petitions.
In the other set of Civil Appeals another Writ Petition of
1974 is said to have been treated as the leading case by the
High Court. The decisions were rendered in Writ Petition No.
3421 of 1974 for one batch and in another Writ Petition of
1974 for the other batch. But in all the appeals before us,
the judgment in W.P. No. 3421 of 1974 alone was referred to.
The Writ Petitions filed under Article 226 of the
Constitution challenged the validity of a notification dated
14-6-1974 issued by the Government of Uttar Pradesh in
exercise of the power conferred by Rule 114 of the Defence
of India Rules, 1971, directing that no registered dealer of
fertilizer shall charge or retain, enter into or enforce any
contract for charging, in respect of any fertilizer sold to
any person on or after 1.6.1974, from any stock held on
31.5.1974, a price exceeding the maximum price fixed by the
Central Government for the sale of fertilizer under an
earlier notification dated 11.10.1973 issued under Clause 3
of the Fertilizer (Control) Order, 1957 made in exercise of
the power conferred by s. 3 of the Essential Commodities
Act, 1955, as it prevailed on 31-5-1974. The Writ Petitions
challenged also an order dated 18.6.1974 passed by the
District Agricultural Officers directing registered dealers
of fertilizers to refund the excess price charged on the
sale of fertilizer effected on or after 1.6.1974 from out of
the stock which was in existence on 31.5.1974. The Writ
Petitions sought the quashing of the said notification dated
14.6.1974 and also a direction to the District Agricultural
Officers and other District Authorities not to ask the
dealers to refund the excess in respect of sales completed
prior to the date of that notification. The High Court has,
while upholding the validity of the notification dated
14.6.1974 and dismissing the prayer for quashing the same,
directed the District Agricultural Officers and other
District Authorities not to enforce the order for refund of
the excess price realized on the sale of fertilizer up to
14.6.1974 from the stocks which were in existence on
31.5.1974. This part of the High Court's order has become
final and has not been challenged by the State Government.
This Court has directed by orders dated 2.9.1974 and
30.10.1974 that the excess price charged on the sale of
fertilizer which was in the possession of the appellants
before 1.6.1974 should be deposited
366
with the District Magistrate concerned within a fortnight of
the sales to remain in a separate account.
The fertilizer in question is admittedly a commodity
controlled under the Fertilizer (Control) Order, 1957 issued
by the Central Government in exercise of the power conferred
by s.3 of the Essential Commodities Act, 19555. The maximum
price for sale of fertilizers by registered dealers to
consumers is fixed under Clause 3 of the Fertilizer
(Control) Order, 1957 by notifications issued from time to
time. The sale price of one of the varieties of fertilizers
with which we are concerned in these appeals has been fixed
at Rs. 1050 per ton by a notification dated 11.10.1973 which
was in force on 31.5.1974. The price fixed in that
notification for the sale of that variety of fertilizer to
registered dealers was Rs. 1005 per ton leaving a margin of
Rs. 45 per ton on sale to consumers at Rs. 1050 per ton. The
Central Governments in supersession of the notification
dated 11.10.1973 fixed the maximum sale price of that
variety of fertilizer at Rs. 2000 per ton by a notification
dated 1.6.1974, thus giving an increases of Rs. 950 per ton
for that variety to the dealers. The dealers started selling
at the new rates fixed in that notification for the several
varieties of fertilizers. The Government of Uttar Pradesh
being of the view that the Central Government's notification
dated 1.6.1974 was not intended to apply to old stock
procured by dealers at considerably lower prices from
producers which was in existence on 31.5.1974 issued the
impugned notification dated 14.6.1974 directing that the old
stock should be sold at the old rate of Rs. 1050 per ton
with effect from 1.6.1974. The Writ Petitions were filed by
the dealers, some of them for quashing the State
Government's notification dated 14.6.1974, some for quashing
that notification as also for directing the District
Agricultural Officers and other District Authorities not to
enforce the order mentioned above and some for the latter
direction alone.
The question for consideration by the High Court was
the validity of the State Government's notification dated
14.6.1974 as regards the stock of fertilizer available with
the dealers at the end of 31.5.1974, i.e., whether that
notification will prevail over the Central Government's
notification dated 1.6.1974.
The first contention urged for the dealers before the
High Court was that fertilizer was not a commodity essential
to the community within the meaning of s.3 of the Defence of
India Act, 1971 and, therefore, the State Government had no
power to fix its price or give
367
any other direction in regard thereto. The learned Judges of
the High Court held that chemical fertilizers being
necessary for increased production of food crops and oil
seeds crops under modern scientific methods of agriculture
would be commodities essential for the life of the community
and that the argument that trade in chemical fertilizers
cannot be regulated under s.3 of the Defence of India Act,
1971 is untenable. Before us no argument was advanced by the
learned counsel for the appellants that chemical fertilizers
are not essential commodities. On the other hand, it was
repeatedly contended that it is an essential commodity
within the meaning of s.2(1)(a) of the Essential Commodities
Act, 1955 and is specifically mentioned as such in s.2(1)(a)
(xi) of that Act. There is no dispute before us about this
matter though there is dispute whether fertilizer can be
brought within the words "any article" mentioned in Rule
114(2) of the Defence of India Rules, 1971. Therefore, that
question does not arise for detailed consideration by us.
The second ground of attack before the High Court was
that the State Government lacked the power to control the
price of chemical fertilizer on the ground that no such
power is conferred on it by the Defence of India Act, 1971
and the rules framed thereunder in respect of chemical
fertilizer as being needed for the preparation of the
defence or connected with the prosecution of war. This
contention was rejected by the learned Judges of the High
Court. It is not necessary for us to consider this aspect of
the matter as no such argument was advanced before us by the
learned counsel for the appellants. The dispute before us is
as to whether chemical fertilizer would fall within the
words "any article" found in Rule 114(2) of the Defence of
India Rules framed in exercise of the power conferred by s.3
of the Defence of India Act, 1971 though it is not disputed
that the impugned State Government notification dated
14.6.1974 was issued when the emergency which was lifted on
22.3.1977 was in force.
The next contention urged before the High Court was
that as the Central Government had already fixed the price
of chemical fertilizer by the notification dated 1.6.1974
issued under the Fertilizer (Control) Order, 1957 made in
exercise of the power conferred by s.3(2) (c) of the
Essential Commodities Act, 1955, the State Government had no
power to fix its price under Rule 114(2) of the Defence of
India Rules, 1971 by the later notification dated 14.6.1974
in exercise of its delegated power. This contention was
rejected by the learned Judges of the High Court as being
unacceptable. The argument of the learned Advocate-General
appearing for the State of Uttar Pradesh
368
before the High Court was that by the impugned notification
dated 14.6.1974 the State Government had not fixed any
price, but had only directed that certain stocks of
fertilizers which were in the possession of dealers on
31.5.1974 shall be sold at the rates fixed by the Central
Government in the earlier Notification dated 11.10.1973
which had been superseded by its own notification dated
11.6.1974, has not been accepted by the learned Judges of
the High Court as the basis of their decision. On the other
hand, they have proceeded on the basis that the State
Government has fixed the dealers' sale price of the
fertilizer by the impugned notification in exercise of the
power conferred by Rule 114 of the Defence of India Rules,
1971.
The undisputed fact is that the price fixed for the
sale of the fertilizer to dealers was Rs. 1005 per ton under
the Central Government's previous notification dated
11.10.1973 which was superseded by its subsequent
notification dated 1.6.1974 in which the price fixed for
sale of the same variety of fertilizer to dealers was Rs.
1960 per ton from the date of that notification. The price
fixed for sale by dealers was Rs. 1050 per ton under the
superseded notification dated 11.10.1973 and Rs. 2000 per
ton in the notification dated 1.6.1974. The learned Judges
of the High Court noted the obvious fact that the dealers
would get an excessive margin of Rs. 995 per ton in respect
of the old stock purchased by them at Rs. 1005 per ton by
selling that stock at the new sale price of Rs. 2000 per ton
fixed by the notification dated 1.6.1974, whereas under the
notification dated 11.10.1973 their margin was only Rs. 45
per ton. They have expressed the view that it could be a
legitimate circumstance to persuade them to exercise their
discretion under Article 226 of the Constitution against the
appellants.
The learned Judges rejected the contention urged on
behalf of the dealers that there is conflict of power
exercised by the Central Government and the State Government
in the same commodity, fertilizer, by the two notifications
dated 1.6.1974 and 14.6.1974 on the ground that the
Essential Commodities Act, 1955 under which the Fertilizer
(Control) Order, 1957 has been made and the Central
Government's notification dated 1.6.1974 has been issued and
the Defence of India Act, 1971, under which the Defence of
India Rules, 1971 have been framed and the State
Government's notification dated 14.6.1974 has been issued,
are both Central enactments operating in different fields
and have different objects, that it is only an accident that
the two notifications relate to the same commodity,
fertilizer, considered as an essential commodity by the
Central Gov-
369
ernment under the Essential Commodities Act and as a
commodity essential to the community by the State Government
under the Defence of India Rules, that the State Government
has unfettered power under Rule 114 of the Defence of India
Rules, 1971 to fix the price of fertilizer and regulate its
supply notwithstanding the fact that fertilizer is an
essential commodity under the Essential Commodities Act,
1955 and that the State Government can also do under the
Defence of India Rules, 1971 framed under the Defence of
India Act, 1971 what the Central Government can do under the
Fertilizer (Control) Order, 1957 made under the Essential
Commodities Act, 1955. The learned Judges rejected the
argument of the learned Advocate-General that the Central
Government's notification dated 1.6.1974 does not apply to
stock of fertilizer which the dealers had carried forward
from the stock which was available on 31.5.1974 and held
that in view of s.37 of the Defence of India Act, 1971 which
says that the provisions of that Act or any Rule made
thereunder or any Order made under any such Rule shall have
effect not withstanding anything inconsistent therewith
contained in any enactment other than that Act, or in any
instrument having effect by virtue of any enactment other
than that Act confers supremacy on the later State
Government notification dated 14.6.1974 over that of the
Central Government dated 1.6.1974. They held that the
similar provision in s.6 of the Essential Commodities Act,
1955 which says that any order made under s.3 of that Act
shall have effect notwithstanding anything inconsistent
therewith in any other enactment or any instrument having
effect by virtue of any enactment other than that Act will
not have any effect on the power of the State Government
exercised under the Rules made under the later Defence of
India Act, 1971 which also is a Central enactment on the
ground that the provisions of the later enactment prevail
over those in the earlier enactment of the same legislative
body in view of s.37 of the later Act.
The learned Judges of the High Court rejected the
contention urged on behalf of the dealers that the Essential
Commodities Act is a special Act dealing with essential
commodities and the Defence of India Act, 1971 is a general
Act dealing with all other commodities and, therefore, the
notification dated 1.6.1974 issued by the Central Government
under the Fertilizer (Central) Order, 1957 made under the
provisions of that Act must prevail over the State
Government's notification dated 14.6.1974 issued under the
Defence of India Rules, 1971, framed under the Defence of
India Act, 1971. They have observed that no question of
special or general Act arises in these cases in view of the
provisions contained in s.37 of the Defence of
370
India Act, 1971 and that s.6 of the Essential Commodities
Act, 1955 draws within its ambit only those Acts which were
in existence and in force on the date of commencement of
that Act and that it cannot take within its ambit the later
Defence of India Act, 1971.
The learned Judges of the High Court rejected the
contention urged on behalf of the dealers that the State
Government's impugned notification dated 14.6.1974 is
malafide and motivated and the result of colourable exercise
of power. There is no need to refer to this ground of attack
in detail as no argument was advanced in this Court about
any such ground.
The next contention urged before the learned Judges of
the High Court on behalf of the dealers was that the State
Government's notification dated 14.6.1974 was discriminatory
on the ground that some governmental agencies falling within
the definition of "dealer" in the Fertilizer (Control)
Order, 1957 were permitted to sell their stock of fertilizer
carried over from 31.5.1974 at the new rate mentioned in the
Central Government's notification dated 1.6.1974. The
learned Judges rejected this contention on the ground that
the impugned notification dated 14.6.1974 applies to all
dealers of fertilizer equally and does not provide for any
such discriminatory treatment to governmental agencies and
that the executive order to that effect, if any, may be
illegal and would not invalidate the impugned notification
as being discriminatory.
The learned Judges of the High Court thus upheld the
validity of the State Government's impugned notification
dated 14.6.1974 and held that it is only prospective in
operation and would apply only to sales of fertilizer made
from 14.6.1974 out of the stock which was available with the
dealers at the end of 31.5.1974.
The appellants are dealers in fertilizer as defined in
Clause 2(c) of the Fertilizer (Control) Order, 1957.
According to that clause "dealer" means any person carrying
on the business of selling fertilizer, whether wholesale or
retail. According to Clause 2(d) of that Order, fertilizer
means any substance used or intended to be used as a
fertilizer of the soil and specified in column 1 of Schedule
I and includes a mixture of fertilizers and a special
mixture of fertilizers. Trade and commerce in, and the
production, supply and distribution of the products of any
industry where the control of such industry by the Union is
declared by Parliament by law to be expedient in public
interest fall under entry 33 of the Concurrent List III in
the Seventh
371
Schedule of the Constitution. Trade and commerce within the
State subject to the provisions of Entry 33 of List III fall
under entry 26 of the State List II in the same Seventh
Schedule. Fertilizer is an essential commodity under
s.2(a)(xi) of the Essential Commodities Act, 1955. The
Fertilizer (Control) Order, 1957, has been made in exercise
of the power conferred by s.3 of the Essential Commodities
Act in respect of fertilizer. Under Clause 3(1) of that
Order the Central Government has power, with a view to
regulating equitable distribution of fertilizers and making
fertilizers available at fair prices, by a notification in
the official gazette, to fix the maximum price or rates at
which any fertilizer may be sold by a manufacturer or a
dealer. The Central Government had issued the notification
dated 11.10.1973 fixing the maximum sale price by producers
to dealers as Rs. 1005 per ton and the maximum sale price by
dealers to consumers as Rs. 1050 per ton in respect of the
variety of fertilizer with which we are concerned in these
appeals. There is nothing on record to show that when that
notification of the Central Government was in force there
was any notification of the State Government of Uttar
Pradesh fixing the maximum price of fertilizer for sale by
dealers. Subsequently, the Central Government issued the
notification No. G.S.R. 254E dated 1.6.1974 fixing the
maximum price at which a dealer could sell that variety of
fertilizer as Rs. 2000 per ton in supersession of the
earlier notification dated 11.10.1973. There is no dispute
that the price fixed for sale of that variety of fertilizer
by the producer to the dealer is Rs. 1960 per ton. Under
s.3(1) of the Defence of India Act, 1971 the Central
Government had power, by notification in the Official
Gazette, to make such rules as appear to it necessary or
expedient for securing the defence of India and civil
defence, the public safety, the maintenance of public order
or the efficient conduct of military operations, or for
maintaining supplies and services essential to the life of
the community. Section 1(3) of that Act said that the Act
shall come into force at once and shall remain in force
during the period of operation of the Proclamation of
Emergency and for six months thereafter. There is no dispute
that the Emergency which was in force when that Act was
passed was lifted on 22.3.1977. Rule 114(2) of the Defence
of India Rules, 1971 made in exercise of the power conferred
by s.3(1) of the Defence of India Act, 1971 says that if the
Central Government or the State Government is of opinion
that it is necessary or expedient so to do for securing the
defence of India and civil defence, the efficient conduct of
military operations or the maintenance or increase of
supplies and services essential to the life of the community
or for securing the equitable distribution and availability
of any article or thing at fair prices, it may, by order
372
provide for regulation or prohibiting the production,
manufacture. supply and distribution, use and consumption of
articles or things and trade and commerce therein or for
preventing any corrupt practice or abuse of authority in
respect of any such matter.
Rule 114(3)(h) gives power to the Central Government or
the State Government to fix the prices or rates at which
articles or things of any description whatsoever may be sold
or hired or for relaxing any maximum or minimum limits
otherwise imposed on such prices or rates. It is under that
rule that the State Government issued the impugned
notification No. A-490(V)/XII-1974 dated 14.6.1974 fixing
the maximum price of the concerned variety of fertilizer in
these terms : "No registered dealer shall charge or retain
or enter into or enforce any contract for charging, in
respect of any fertilizer sold to any person on or after
June 1, 1974 a from out of any stock carried over by him
from May 31,1974 a price exceeding the maximum price fixed
under Clause 3 of the Fertilizer (Control) Order, 1957 as it
prevailed on May 31, 1974". The reference to the price as it
prevailed on May 31, 1974 is to the price fixed in the
Central Government's notification dated 11.10.1973 which has
been specifically superseded by the Government's
notification dated 1.6.1974. The High Court has held that
the impugned notification dated 14.6.1974 is prospective in
operation and can apply only to sales made from 14.6.1974 of
the fertilizer which was carried over from the stock held at
the close of 31.5.1974. It is not disputed that the
notification could be only prospective in operation and
would not apply to sales effected up to 14.6.1974 of the
fertilizer carried over from the stock which was held at the
end of 31.5.1974. It is also not disputed that the State
Government issued the impugned notification with the object
of preventing dealers from profiting to the extra extent of
Rs. 950 per ton in respect of the stock which had been
purchased by them prior to 1.6.1974 at Rs. 1005 per ton by
selling the same at Rs. 2000 per ton fixed in the
notification dated 1.6.1974 while that stock could have been
sold prior to 1.6.1974 only at Rs. 1050 per ton. The
question is which of these two notification is valid and
should prevail in regard to the fertilizer carried over from
the stock held by dealers at the close of 31.5.1974.
The Central Government's notification dated 1.6.1974
issued under Clause 3(1) of the Fertilizer (Control) Order,
1957 made in exercise of the power conferred by s.3(1) of
the Essential Commodities Act, 1955, and the State
Government's impugned notification dated
373
14.6.1974 issued under Rule 114 of the Defence of India
Rules, 1971 made in exercise of the powers conferred by
s.3(1) of the Defence of India Act, 1971 relate to the same
commodity, fertilizer, which is declared to be an essential
commodity under s.2(a)(xi) of the Essential Commodities Act,
1955, and may ordinarily fall under the term "article or
things of any description whatsoever" occurring in Rule
114(3)(h) of the Defence of India Rules 1971 and both of
them fix the maximum price at which dealers can sell the
fertilizer. The Central Government's notification dated
1.6.1974 applies to the whole country while the impugned
notification dated 14.6.1974 of the State Government can
apply only to the State of Uttar Pradesh.
The appellants' attack on the impugned notification is
two-fold. The first ground of attack forcibly urged by Mr.
P. Govindan Nair, Senior Counsel appearing for one set of
appellants is that the impugned notification is altogether
invalid in law and non est on the ground that the State
Government has no power whatsoever to issue the notification
under the Defence of India Rules in respect of an essential
commodity, fertilizer, covered by the Central Government's
notification issued under the Fertilizer (Control) Order,
1957, made in exercise of the power conferred by the
Essential Commodities Act. The second ground of attack urged
by Mr. Yogeshwar Prasad, Senior Counsel appearing for the
other set of appellants is based on Article 14 of the
Constitution, namely, that it is discriminatory and,
therefore, bad in law. Mr. S.C. Manchanda, Senior Counsel
appearing for the respondents in all the appeals naturally
submitted that there is no substance in any of these two
grounds.
The second ground of attack projected by Mr. Yogeshwar
Prasad may be taken up first for consideration. This ground
has been considered by the learned Judges of the High Court
as the fifth ground of attack before them at pages 29 to 31
of the paper book in Civil Appeals 1568-1576 of 1974, and
rejected by them. The submission of Mr. Yogeshwar Prasad is
that some governmental agencies falling within the
definition of "dealer" in the Fertilizer (Control) Order,
1957 were permitted by the State Government to sell the
fertilizer carried over from the stock held at the close of
31.5.1974 at the new enhanced rate of Rs. 2000 per ton fixed
in the Central Government's notification dated 1.6.1974 and
that it is discriminatory against the private dealers who
are required by the impugned notification to sell at the old
rate of Rs. 1050 per ton fixed in the Central Government's
old notification dated 11.10.1973. To show that such a
direction was given by the State Government, Mr. Yogeshwar
374
Prasad invited attention to the first sentence in the
radiogram 23.7.1974 issued by the Chief Secretary to the
Government of Uttar Pradesh. That sentence reads as follows
: "All stocks of fertilizer available with ASO, AGRO
Cooperatives and Cane Unions be distributed without any
condition regarding purchase of fertilizers at new rates".
It is not possible to make out what exactly was intended to
be conveyed by that sentence in the radiogram. In the
counter-affidavit of the Accounts Officer, Fertilizers and
Manures Directorate of Agriculture, Government of Uttar
Pradesh, filed in C.M.P. 6773 of 1974 on the file of this
Court, it is stated that the State Government has not
allowed any State owned agency to sell the stocks of
fertilizer carried over from 31.5.1974 at the rates fixed in
the Central Government's notification dated 1.6.1974, that
the radiogram was not meant to permit Agricultural Supplies
Organisation and the Agro Industrial corporation and other
governmental agencies to sell the stocks carried over from
31.5.1974 at the revised rates and that it was issued to
remove only the condition. There is no other material on the
record to show that any direction was given by the State
Government for the governmental agencies to sell the
fertilizer carried over from 31.5.1974 at the enhanced rate
fixed in the Central Government's notification dated
1.6.1974. Therefore, the very basis of the contention of Mr.
Yogeshwar Prasad that there is any discrimination against
private dealers like the appellants represented by him
compared with governmental agencies in the matter of the
sale price of fertilizer has not been established. Even if
any such direction had been given, it would certainly be bad
in law as being discriminatory. It would not, however,
invalidate the impugned notification which per se applies to
all dealers of fertilizers in the entire State of Uttar
Pradesh, whether private or governmental. Consequently, the
impugned notification of the State Government cannot be held
to be bad in law on the ground of discrimination if it is
otherwise valid. Mr. Manchanda relied upon the aforesaid
counter-affidavit in support of his contention that there is
no basis for the contention that there is any discrimination
against private dealers. The second ground of attack
projected by Mr. Yogeshwar Prasad fails and has been rightly
rejected by the learned Judges of the High Court.
The first ground is as regards the power of the State
Government to issue the impugned notification dated
14.6.1974, fixing for the sale of fertilizers by dealers to
consumers a price different from the one fixed in the
Central Government's notification dated 1.6.1974. In
considering this question the fact that the notification was
issued by the State Government with the object of preventing
dealers in the State
375
of Uttar Pradesh from driving under excessive profit from
agricultural consumers in respect of the fertilizer which
had been purchased by the dealers at Rs.1005 per ton under
the old Central Government's notification dated 11.10.1973
and that it applies to the fertilizer which was in stock at
the end of 31.5.1974, should not weigh with the Court, for
the question is of the power of the State Government to
issue the notification. The question is whether the State
Government has power to fix the price of fertilizer under
the Defence of India Rules, 1971, framed in exercise of the
powers conferred by the Defence of India Act, 1971 after the
Central Government had already fixed the price under the
Fertilizer (Control) Order, 1957 made in exercise of the
power conferred by the Essential Commodities Act, 1955. If
in law the State Government could fix the price in respect
of the limited stock of fertilizer carried over from
31.5.1974, it can certainly fix the price of the fertilizer
received by the dealers even after 1.6.1974 in respect of
which the Central Government's notification dated 1.6.1974
would undoubtedly apply.
The Essential Commodities Act, 1955 in an enactment
passed by Parliament to provide, in the interest of the
general public, for the control of the production, supply
and distribution and trade and commerce in certain
commodities which have been notified under that Act as
essential commodities. The very object of the Essential
Commodities Act is to check the inflationary trends in
prices and to ensure the equitable distribution of essential
commodities. Section 1(2) of that Act makes it applicable to
the whole of India. It is a permanent enactment in the sense
that its operation is not restricted to any particular
period. The Fertilizer (Control) order, 1957 has been made
in exercise of the power conferred by s.3(2)(c) of the
Essential Commodities Act, 1955 for controlling the price at
which any essential commodity may be bought or sold.
Fertilizer has been declared to be an essential commodity
under s.2(a)(xi) of the Essential Commodities Act as
mentioned above. Therefore, the price fixed in the
notification issued under the Fertilizer (Control) Order,
1957 squarely applies to fertilizer. The Defence of India
Act, 1971 also is an Act of Parliament which was intended to
provide for special measures to ensure the public safety and
interest, the defence of India and civil defence and for the
trial of certain offences and for matters connected
therewith. That Act also extended to the whole of India, but
under s.1(3), it came into force at once and remained in
force during the period of operation of the Proclamation of
Emergency and for a period of six months thereafter. Sub-
clause (a) of Sub-section (3) of s. 1 saves anything duly
done under the Act as if the
376
Act had not expired. As stated earlier the Emergency which
was in force when the State Government's impugned
notification dated 14.6.1974 was issued, was lifted on
22.3.1977. The life of the Defence of India Act, 1971 thus
extended upto six months after 22.3.1977. In that way the
Defence of India Act, 1971 was a temporary enactment
intended to be in operation for only a limited period.
The Defence of India Rules, 1971 had been issued in
exercise of the power conferred by s.3 of the Defence of
India Act, 1971. Under Rule 114(2) of those Rules, if the
Central Government or the State Government is of opinion
that it is necessary or expedient so to do for securing the
defence of India and civil defence, the efficient conduct of
military operations or the maintenance or increase of
supplies and services essential to the life of the community
or for securing the equitable distribution and availability
of any article or thing at fair prices, it may, by order,
provide for regulating or prohibiting the production,
manufacture, supply and distribution, use and consumption of
articles or things and trade and commerce therein or for
preventing any corrupt practice or abuse of authority in
respect of any such matter.
Sub-rule (3)(h) of Rule 114 said that without prejudice
to the generality of the powers conferred by sub-rule (2) an
order made thereunder may provide for controlling the prices
or rates at which articles or things of any description
whatsoever may be sold or hired or for relaxing any maximum
or minimum limits otherwise imposed on such prices or rates.
The State Government's impugned notification has been
issued, as already stated, in exercise of the power
conferred by this sub-rule of Rule 114.
The Central Government had already assumed power under
the Essential Commodities Act, 1955 to control the price of
essential commodities including fertilizer as a permanent
measure, and could do under the provisions of that Act in
relation to that essential commodity what it may do under
the Defence of India Act, 1971, a temporary measure, if
fertilizer could be brought under the description of
"articles or things of any description whatsoever". But
since it had already assumed the power under the Essential
Commodities Act, 1955 to control the price of fertilizer it
was not necessary for it to get itself armed once again with
the power to control the price of the same essential
commodity under the Defence of India Act, 1971 which came
about 16 years later. Therefore, the contention of Mr.
377
Govindan Nair that the Essential Commodities Act, 1955 is a
special enactment relating to only essential commodities and
the Defence of India Act, 1971 is a general enactment
relating to all other commodities, and that the words
"articles or things of any description whatsoever" occurring
in Rule 114(3)(h) of the Defence of India Rules, 1971 cannot
be understood to include essential commodities has force and
has to be accepted. It cannot be assumed that Parliament
which had already legislated in the Essential Commodities
Act, 1955, a permanent measure, in respect of fertilizer
intended to legislate once again and could have felt the
need to legislate once again in the temporary Defence of
India Act, 1971 in respect of the same article, especially
because what could be done under the Defence of India Act
and the Rules which may be framed thereunder could as well
be done with equal force under the Essential Commodities Act
and orders which may be passed thereunder. Therefore, the
contention that the State Government has no power to fix the
price of essential commodities covered by the Essential
Commodities Act, 1955 and the Fertilizer (Control) Order,
1957 in exercise of the power conferred on it by Rule 114 of
the Defence of India Rules, 1971 issued under the Defence of
India Act, 1971 is well-founded and has to be accepted.
Section 3(2)(c) of the Essential Commodities Act, 1955,
pursuant to which the Fertilizer (Control) Order, 1957 has
been made says that without prejudice to the generality of
the powers conferred by sub-section (1) an order made
thereunder may provide for controlling the price at which
any essential commodity may be brought or sold. This sub-
clause of s.3 of the Essential Commodities Act has not left
anything to be done under the Defence of India Act, 1971 in
the matter of fixation of price of any essential commodity
whether it be for securing any essential commodity for the
defence of India or for the effective military operation or
for securing the equitable distribution and availability of
essential commodities at fair prices or distribution thereof
and trade and commerce therein as envisaged in s.3(1) of
that Act.
If the State Government felt that there was any special
circumstance to be taken into account for fixing the price
of the essential commodity fertilizer, in the State of Uttar
Pradesh at a rate lower than the one fixed by the Central
Government in its notification dated 1.6.1974, it could have
achieved that object by getting steps to be taken under the
Essential Commodities Act itself. Section 3(2) of that Act
lays down that the Central Government may, having regard
378
to the local conditions of any area and other relevant
circumstances, fix different prices or rates in respect of
different areas and for different classes of consumers. The
State Government could have requested the Central Government
to act under s.3(2) of the Essential Commodities Act and fix
a different price or rate for the sale by dealers in that
State of fertilizer carried over from the stock held on
31.5.1974. Section 5(b) of the Essential Commodities Act
provides for delegation of powers and says that the Central
Government may, by notified order, direct that the power to
make or issue notifications under s.3 of that Act shall, in
relation to such matters and subject to such conditions, if
any, as may be specified in the direction be exercisable
also by such State or such officer or authority subordinate
to a State Government as may be specified in the direction.
The Central Government has not issued any direction under
s.5(b) of the Essential Commodities Act delegating its power
to issue notification under s.3 of that Act to the State
Government or any officer or authority of that Government.
The State Government has thus not resorted to the provisions
contained in s.3(2) or s.5(b) of the Essential Commodities
Act, but has proceeded to fix the price of fertilizer on its
own under the Defence of India Rules, 1971 which it cannot
do under those Rules and the Defence of India Act, 1971 in
respect of the essential commodity.
Section 6 of the Essential Commodities Act, 1955 saves
any order made under s.3 of that Act from the impact of any
other enactment. It is not possible to accept the contention
that the other Act or enactment referred to in s.6 of the
Essential Commodities Act, 1955 would be only the Act or
enactment which was in force on the date of commencement of
that Act and not any future Act or Acts. This contention has
been wrongly rejected by the learned Judges of the High
Court. Section 6 of the Essential Commodities Act says that
an order made under s. 3 shall have effect notwithstanding
anything inconsistent therewith contained in any enactment
other than that Act or any instrument having effect by
virtue of any enactment other than that Act. It is true that
there is a similar saving provision in s.37 of the Defence
of India Act, 1971 which says that the provisions of that
Act or any Rule made thereunder or any order made under any
such Rule shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than
that Act or in any instrument having effect by virtue of any
enactment other than that Act. But as stated above, the
Defence of India Act, 1971, which was a general and
temporary Act and the Rules framed thereunder cannot apply
to fertilizer which is an essential commodity governed
379
by the Essential Commodities Act, 1955 and the Fertilizer
(Control) Order, 1957 made under the provisions of that Act.
Therefore, the State Government cannot without delegation
issue any notification under the Defence of India Act and
Rules, 1971 in regard to the price of fertilizer an
essential commodity governed by the Essential Commodities
Act and the Fertilizer (Control) order, 1957. The learned
Advocate-General of the State was perhaps fully conscious of
the legal position that the State Government cannot fix the
price of an essential commodity by any notification under
the Defence of India Rules, 1971 in the circumstances when
he took the patently unacceptable stand before the learned
Judges of the High Court that the State Government did not
in fact fix the price of fertilizer in its impugned
notification dated 14.6.1974 but it only directed that
certain stock of fertilizer which was in the possession of
dealers at the end of 31.5.1974 and was carried over by them
shall be sold at the rate fixed in the Central Government's
earlier notification dated 11.10.1973, which as stated
above, has been specifically superseded by its subsequent
notification dated 1.6.1974. If the State Government had not
fixed the price at which fertilizer can be sold be dealers
by the impugned notification dated 14.6.1974 though it is no
doubt in respect of the stock carried over from 31.5.1974,
one fails to see what else it did or why it was considered
necessary. Therefore, the learned Judges of the High Court
have rightly rejected that submission of the learned
Advocate-General.
As stated above, trade and commerce in and the
production, supply and distribution of the products of any
industry where the control of such industry by the Union is
declared by Parliament by law to be expedient in the public
interest fall under entry 33 of the Concurrent List III, and
trade and commerce within the State subject to the
provisions of Entry 33 in the Concurrent List III fall under
Entry 26 of List II of the Seventh Schedule to the
Constitution. If the State Government's impugned
notification is assumed to be a law enacted by that State's
Legislature on Entry 26 of List II, since the Act of
Parliament passed on Entry 33 of List III and the Fertilizer
(Control) Order, 1957 passed under that Act were already in
force, the assent of the President had to be received in
order that the State Government's notification assumed to be
a law enacted by the State's Legislature may prevail in the
State as required by Article 254(2) of the Constitution
which reads thus:
"Where a law made by the Legislature of a State
with respect to one of the matters enumerated in the
Concurrent
380
List contains any provision repugnant to the provisions
of an earlier law made by Parliament or an existing law
with respect to that matter, then, the law, so made by
the Legislature of such State shall, if it has been
reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the
Legislature of the State."
There is nothing on record to show that the impugned
notification of the State Government was placed before the
President for his assent and that his assent has been
received. Therefore, the State Government's impugned
notification even as a law cannot prevail over the earlier
notification of the Central Government.
The learned Judges of the High Court were not right in
rejecting the submission made before them that there is
conflict between the two notifications of the Central
Government dated 1.6.1974 and of the State Government dated
14.6.1974 and in holding that the State Government has
unfettered power under the Defence of India Act, 1971 to fix
the price of fertilizer and regulate its supply
notwithstanding the fact that fertilizer is an essential
commodity under the Essential Commodities Act, 1955 in
observing and that what the Central Government can do under
the Fertilizer (Control) Order, 1957 the State Government
can do under the Defence of India Rules, 1971. There is a
clear conflict between the two notifications in respect of
the same essential commodity, fertilizer, for under the
Central Government's notification dated 1.6.1974 the price
at which a dealer can sell fertilizer of the concerned
variety is Rs. 2000 per ton while under the State
Government's notification dated 14.6.1974 it is only Rs.
1050 per ton though no doubt it is restricted to the stock
carried over from 31.5.1974 which is immaterial in judging
the power of the State Government to fix the price of an
essential commodity by a notification made under the Defence
of India Rules, 1971 in respect of which the Central
Government had already fixed the price under the Fertilizer
(Control) Order, 1957. Once the Central enactment and the
Central Government's notification govern the price of an
essential commodity the State Government's notification
issued in exercise of the delegated authority under the
Defence of India Act and the Rules framed thereunder cannot
prevail. The Two enactments have
381
to be read in such a way that there is no conflict between
them while giving effect to them in their respective fields
of operation. On the question of conflict and interpretation
of statutes, we find the following passage in Craies on
Statute Law (seventh edition) at page 222:
"Acts of Parliament sometimes contain general
enactments relating to the whole subject-matter of the
statute, and also specific and particular enactments
relating to certain special matters; and if the general
and specific enactments prove to be in any way
repugnant to one another, the question will arise,
which is to control the other ? In Pretty v. Solly(1)
Romilly M.R. stated as follows what he considered to be
the rule of construction under such circumstances. "The
general rules," said he, "which are applicable to
particular and general enactments in statutes are very
clear; the only difficulty is in their application. The
rule is, that whenever there is a particular enactment
and a general enactment in the same statute, and the
latter, taken in its most comprehensive sense, would
over rule the former, the particular enactment must be
operative, and the general enactment must be taken to
affect only the other parts of the statute to which it
may properly apply".
The following passage found at page 187 of the twelfth
edition of Maxwell on the Interpretation of Statutes may
also be noticed:
"If two sections of the same statute are
repugnant, the known rule is that the last must
prevail". But, on the general principle that an author
must be supposed not to have intended to contradict
himself, the Court will endeavour to construe the
language of the legislature in such a way as to avoid
having to apply the rule, leges posteriors priores
contrarias abrogant. For example, the provision in
order 47 of the Country Court Rules 1936 that "the
scale of costs in an action for the recovery of a sum
of money only shall be determined.... as regards the
costs of the plantiff, by the amount recovered" was not
construed as peremptory, for this would have brought it
out of harmony with the earlier provision in the same
order that "the costs of proceedings in a Country Court
shall be in the discretion of the Court."
382
One way in which repugnancy can be avoided is by
regarding two apparently conflicting provisions as
dealing with distinct matters or situations."
There will be clear conflict between the two
notifications if it is understood that the State Government
also can fix the price of any essential commodity covered by
the Essential Commodities Act, 1955 and the Fertilizer
(Control) order, 1957 in exercise of the power conferred on
it by the Defence of India Act, 1971 and the Defence of
India Rules, 1971. The conflict can be avoided only if it is
held that the Essential Commodities Act, 1955 and the
Fertilizer (Control) order, 1957 deal with essential
commodities and the Defence of India Act, 1971 and the
Defence of India Rules, 1971 deal with all other articles
and things of any description whatsoever. The author of the
two enactments, Essential Commodities Act, 1955 and Defence
of India Act, 1971 is the same, namely, Parliament, and
Parliament must be held to have not intended to contradict
itself while dealing with distinct matters or situations
under those enactments. If the State Governments are free to
fix their own prices in notifications issued by them under
the Defence of India Rules, 1971 when the Central
Government's notification fixing a single price for the
whole country in respect of an essential commodity is in
force that notification of the Central Government will
become otiose. The question is whether Parliament would have
intended such a consequence. The answer can only be an
emphatic no. That situation has to be clearly avoided by a
proper interpretation of the respective powers of the
Central and State Governments under the two Acts, and by
holding that the Essential Commodities Act, 1955, and the
Fertilizer (Control) order, 1957 deal with essential
commodities and the Defence of India Act, 1971 and the
Defence of India Rules, 1971 dealt with all other
commodities notwithstanding that fact that Rule 114(3)(h)
mentions "articles or things of any description whatsoever".
In Municipal Corporation of Delhi v. Shiv Shankar(1) it
is observed:
"To determine if a later statutory provision
repeals by implication an earlier one it is accordingly
necessary to closely scrutinize and consider the true
meaning and effect both of the earlier and the later
statute. Until this is done it cannot be satisfactorily
ascertained if any fatal inconsis-
383
tency exists between them. The meaning, scope and
effect of the two statutes, as discovered on scrutiny,
determine the legislative intent as to whether the
earlier law shall cease or shall only be supplemented.
If the objects of the two statutory provisions are
different and the language of each statute is
restricted to its own objects or subject, then they are
generally intended to run in paralleled lines without
meeting and there would be no real conflict though
apparently it may appear to be so on the surface.
Statutes in pari materia although in apparent conflict
should also so far as reasonably possible, be construed
to be in harmony with each other and it is only when
there is an irreconcilable conflict between the new
provision and the prior statute relating to the same
subject matter, that the former, being the later
expression of the legislature, may be held to prevail,
the prior law yielding to the extent of the conflict".
If the Essential Commodities Act, 1955 and the
Fertilizer (Control) order, 1957 are considered to apply
exclusively to fertilizer, an essential commodity, and the
Defence of India Act, 1971 and the Defence of India Rules,
1971 are considered to apply to other commodities excluding
essential commodities there would be no conflict whatsoever
between the Essential Commodities Act and the Defence of
India Act and between the notifications issued under
Fertilizer (Control) order, 1957 and the Defence of India
Rules, 1971. If that is not done there will be real conflict
between the two and, therefore, the two Acts must be so
construed as to avoid conflict in the manner indicated
above.
Mr. Manchanda invited attention to the following
observation in Zaverbhai Amaidas v. The State of Bombay(1)
"It is true, as already pointed out, that on a
question under article 254(1) whether an Act of
Parliament prevails against a law of the State, no
question of repeal arises; but the principle on which
the rule of implied repeal rests, namely, that if the
subject-matter of the later legislation is identical
with that of the earlier, so that they cannot both
stand together, then the earlier is repealed by the
later enactment will be equally applicable to a
question under article 254(2) whether the further
legislation by Parliament is in
384
respect of the same matter as that of the State law.'
There is no question of placing the later law, Defence
of India Act, 1971, for consideration by the President under
Article 254(2) of the Constitution for both the laws, the
Essential Commodities Act, 1955 and Defence of India Act,
1971 are laws passed by Parliament. There does not appear to
be any provision for placing any notification made by a
State Government under the Defence of India Rules, 1971 for
consideration by the President. As already stated, if the
impugned State Government's notification is, however,
considered to be in the nature of a State law there is
nothing on the record, to show that it was placed before the
President for consideration and had received his assent as
already stated.
Relying upon the above decision in Zaverbhai Amaidas v.
The State of Bombay (supra) Mr. Manchanda made a half-
hearted plea that the impugned State Government's
notification relates only to fertilizer which was carried
over from the stock held at the close of 31.5.1974 and that
it is intended to protect agricultural consumers from
dealers making undue profit and should therefore, be held to
be, valid in law. It is not possible to accept this
submission of Mr. Manchanda. There is no basis, whatsoever,
to presume, and it will, be totally uncharitable to the
Central Government to presume, that the Central Government
which had assumed powers under the Essential Commodities
Act, 1955 to control the distribution of fertilizer and make
it available at fair prices to consumers was ignorant of or
had overlooked the fact while making the notification dated
1.6.1974 fixing a higher price for dealers to sell
fertilizer to consumers with effect from that date that
there may be some stock of fertilizer on 31.5.1974 purchased
by dealers at lower prices which may be carried over for
sale subsequently. What has been done by the State
Government under the impugned notification is utterly
lacking in power and cannot be allowed to stand merely
because it relates only to a comparatively small quantity of
fertilizer carried over from the stock of 31.5.1974 and was
intended to benefit and protect agricultural consumers and
prevent dealers from making undue profits. For the reasons
stated above the appeals are allowed and the impugned State
Government's notification dated 14.6.1974 is quashed. There
will be an order directing the District Agricultural
officers and other District Authorities in the State of
Uttar Pradesh not to ask the dealers to refund the excess in
respect of the sales completed prior to the date of the
impugned notification. The District Magistrates concerned
shall return the monies deposited with them by the dealers
pursuant
385
to this Court's orders dated 2.9.1974 and 30.10.1974. The
respondents shall pay the appellants' costs. There will be
one set of advocate's fees in the batch of appeals in which
the appellants are represented by Mr. Govindan Nair and
another set of advocate's fees in the other set of appeals
in which Mr. Yogeshwar Prasad appears for the appellants.
H.S.K. Appeals dismissed.
386





Tags :-    ram   chandra   mawa   lal   others   etcvsstate   uttar   pradesh   others   etc   

Read / Write Comments



Quick Links



Browse By Category





web analytics