Petroleum dealers challenged enforcement of a State licensing order after subsequent Central orders regulated the same products. The court held the State order overridden and its enforcement arbitrary and unjustified. It dismissed all writ appeals, maintaining the declaration that the State order was unenforceable and void.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN &
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937
WA.No. 581 of 2009
WP(C) 14350/2008, DATED 05-12-2008
APPELLANT(S)/RESPONDENTS 2 TO 4 IN WPC:
1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE COMMISSIONER OF CIVIL SUPPLIES, COMMISSIONERATE OF CIVIL SUPPLIES, PUBLIC OFFICE, OPP. MUSEUM, THIRUVANANTHAPURAM.
3. THE TALUK SUPPLY OFFICER, TALUK SUPPLY OFFICE, ALUVA.
BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL
RESPONDENT(S)/PETITIONERS AND IST RESPONDENT IN WPC:
1. ALL KERALA BHARAT GAS DISTRIBUTORS ASSOCIATION, SANSKRIT COLLEGE ROAD, TRIPUNITHURA, KOCHI, REP. BY ITS GENERAL SECRETARY, A.R.VENUGOPAL, AGED 61 YEARS, S/O.LATE N.R.NAIR.
2. JOSEPH GEORGE P., AGED 59 YEARS, S/O.LATE C.J.GEORGE, PROPRIETOR, SEENA GAS, VHARATGAS DISTRIBUTOR, ANGAMALY.
3. UNION OF INDIA,
R1,2 BY ADVS. SRI.H.B.SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.THOMAS P.MAKIL R3 BY SRI.N.NAGARESH, ASST.SOLICITOR GENERAL OF INDIA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 8/2/2016 ALONG WITH WA.NO.821/2009 AND CONNECTED CASES, THE COURT ON 24-02-2016, DELIVERED THE FOLLOWING:
PJ
“C.R.”
ASHOK BHUSHAN, C.J. and
A.M. SHAFFIQUE, J.
====================================
W.A. No.581 of 2009, W.A. Nos.638, 680, 689, 700, 701, 712, 792, 805, 808, 816, 817, 818, 819, 820, 821, 827, 828, 829, 830, 842, 843, 844, 845, 846, 848, 852, 854, 858, 861, 862, 863, 864, 873, 874, 875, 878, 886, 889, 893, 894, 895, 900, 902, 906, 911, 912, 913, 914, 927, 928, 929, 930, 938, 943, 1024, 1025, 1040, 1041, 1045, 1046, 1057, 1078, 1081, 1088, 1135 and 1146 of 2009
==================================== Dated this the 24th day of February, 2016
J U D G M E N T
Ashok Bhushan, C.J.
These Writ Appeals have been filed against the common judgment dated 05.12.2008 in a bunch of Writ Petitions filed by the respondents to these Writ Appeals. Writ Petition No.14350 of 2008 was treated as the leading Writ Petition by the learned Single Judge. Writ Appeal No.581 of 2009 arising out of the aforesaid Writ Petition is being treated as the leading Writ Appeal and reference of facts giving rise to W.A.No.581 of 2009 shall be sufficient for deciding all these Writ Appeals.
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No.14350 of 2008.
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such conditions, if any, be also exercisable by the State Government and other authorities. The Central Government by order dated 13.11.1962 which was published in the Gazette of India dated 14.11.1962 made delegation of certain powers enumerated in Section 3(2) to different State Governments including the State of Kerala. At the time when the above delegation order dated 13.11.1962 was issued, the Central Government had not issued any order under Section 3 with regard to the petroleum products. The Central Government thereafter issued various Orders under Section 3, viz., (i) Petroleum products collection of information Order, 1966; (ii) Petroleum Products (Maintenance of Production) Order, 1970; (iii) Petroleum Products (Regulation of Supply and Distribution) Order, 1979; (iv) Petroleum Products (Supply and Distribution) Order, 1972 and Petroleum Storage Order, 1971.
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meantime, the Central Government continued to issue various Orders under Section 3 for petroleum products. Petroleum products included motor spirit, high speed diesel oil, petroleum based lubricants and liquified petroleum gas. The Central Government continued to issue Orders under Section 3 and it issued Orders separately regarding liquified petroleum gas, motor spirit, high speed diesel oil, and petroleum based lubricants oils. With regard to liquified petroleum gas, the Central Government issued the following Orders, viz., (1) The Liquified Petroleum Gas (Restriction on Use) Order, 1974; (ii) The Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 and (iii), The Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. With regard to motor spirit and high speed diesel oil, the Central Government issued the following orders, viz., (i) The Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1988 and (ii) The Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005. With regard to lubricant oils, the Central Government issued Lubricanting Oils Grease (Processing, supply, Regulation and Distribution) Order, 1987.
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the Central Government the Government of Kerala notified the enforcement of the 1981 Order by Notification dated 22.01.2008 published in the Kerala Gazette Extraordinary dated 31.01.2008 with effect from the date of publication.
“(i) Declare Ext.P1 order as illegal and ultra vires.
(ii) Declare Ext.P1 order as unenforceable as against Distributors and Dealers of Liquified Petroleum Gas.
(iii) Call for the records and files leading to Exts.P1, P7, P8 and P9 from respondents 2 to 4 and quash Exts.P1 P7, P8 and P9 by issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction.
(iv) Issue a writ in the nature of prohibition or any other appropriate writ, order or direction prohibiting respondent Nos.2 to 4 from enforcing Ext.P1 Order against Distributors
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and Dealers of Liquified Petroleum Gas and second petitioner and
(v) Grant such other and further reliefs as are deemed just and necessary in the facts and circumstances of the case including the costs of this proceedings.”
on behalf of the State Government, second respondent justifying the issuance of the 1981 Order. The counter affidavit stated that the State Government has been delegated power to issue Order by the delegation Order dated 13.11.1962, issued by the Government of India, Ministry of Petroleum and Natural Gas. It was pleaded that the purpose of the 1981 Order is to ensure regulating the activity of the dealer.
“A. Certain provisions contained in the State Order are clearly inconsistent with the provisions of Petroleum Act, 1934 and the Board Act 2006. A subordinate legislation cannot contravene the provisions of a plenary law. In this view of the matter, the provisions of the State Order will, therefore, have to be treated as void or unenforceable to the extent of their inconsistency with the provisions of the aforementioned plenary legislations.
B. The Essential Commodities Act 1955, insofar as it comprehends petroleum and petroleum product, as an Essential Commodity, should be treated as having been impliedly repealed by the provisions of the Petroleum and Natural Gas Regulatory Board
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Act, 2006.
C. The provisions of the Central Orders and the State Order, give rise to different consequences and are not capable of resolution. In fact, there is a conflict between the provisions of these two. Consequently, the provisions of the State Order will have to be considered as repugnant and void to the extent of inconsistency. The principles underlying cases of repugnancy under Article 245(1) of the Constitution of India are applicable to orders issued by the Central Government and State Government under the Essential Commodities Act, 1955.
D Statutory instruments have been brought into force by the Central Government specifically to deal with petroleum products. The Central Government has, therefore, exercised its power under Section 3 of the Essential Commodities Act. If that be so, the field is not available to be occupied by the State Order, which, though issued in 1981, was enforced only in 2008, w.e.f. 22.1.2008, during the currency of the Central Orders issued in 2000 and 2005, as the case may be.”
“54. Since I have undertaken an elaborate discussion on various aspects, I consider it appropriate to summarise my conclusions as hereunder:
(1) Section 6 of the Essential Commodities Act, 1955 gives
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overriding effect to the provisions of any Order issued under Section 3 of the said Act and the provisions of a statutory order issued thereunder cannot be struck down on the ground that they are inconsistent with the provisions of the Petroleum Act, 1934 or the Petroleum and Natural Gas Regulatory Board .
(2) The Essential Commodities Act, 1955 cannot be considered as having been impliedly repealed insofar as it relates to Petroleum and Petroleum Products, by the enforcement of the Petroleum Act and the Petroleum and Natural Gas Regulatory Board Act, 2006.
(3) The field relating to regulation of the supply and distribution of Motor Spirit, High Speed Diesel and Liquefied Petroleum Gas, petroleum products are comprehensively covered by the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 and the Liquefied Petroleum Gas (Regulation of supply and Distribution) Order, 2000. It, therefore, follows that the State Order, 1981 cannot co-exist with the aforementioned two Central Orders and there arises a repugnancy in law. This renders the State Order of 1981 unenforceable and void.
In the result, the writ petitions are allowed. It is declared that the Kerala Petroleum Products Dealers Licensing Order, 1981 is unenforceable and void. It is further declared that the petitioners cannot be subjected to
any penal consequences for the infraction of the provisions of the State Order of 1981. It is needless to say that the petitioners are bound to comply with the provisions of the Central Orders, which are applicable to them. The parties shall bear their respective costs.
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been decided by the learned Single Judge in favour of the Writ Petitioners. There being no challenge to the decision of the learned Single Judge on points A and B, we have neither entered into the said issues nor are expressing any opinion with regard to the same.
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order under Section 3. The State Government has not exercised any legislative power as conferred under the Constitution of India while issuing Ext.P1 Order. What has been exercised is the delegated power on behalf of the Central Goverment, hence the question of superior power does not arise. Learned Single Judge went wrong in examining the validity of the 1981 Order under Article 254 of the Constitution of India, whereas the present case was not a case regarding two separate Legislations but was a case of two orders issued under Section 3 of the 1955 Act. The principle contained in Article 254 as regards two Legislations is not applicable while examining the two statutory instruments. Various clauses of the 2005 Order were not considered by the learned Single Judge which in no manner overrides the 1981 Order.
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fully aware that the field is occupied by the Order issued under Section 3 and there is no scope for enforcement of the 1981 Order. Enforcement of the 1981 Order in the year 2008 was wholy without jurisdiction. The Central Government in issuing Orders under Section 3 have covered the entire field of petroleum products and hence it was not open for the Government to enforce the 1981 Order covering the same field and the Orders issued by the Central Government being Order of delegator shall override the Orders issued by the delegatee, since the entire field was fully occupied by the Orders issued by the Central Government.
(i) Whether the State of Kerala could have issued the 1981 Order whereas the Central Government had already in exercise of the power under Section 3 issued different orders under Section 3 covering the field and further could have enforced the Order by Notification dated 31.01.2008?
(ii) Whether in view of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 and the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 and the Lubricating Oils Grease (Processing, Supply, Regulation and
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Distribution) Order, 1987, the 1981 Order issued by the State Government in exercise of the power under Section 3 of the 1955 Act stood overridden and could not have been enforced by the State Government by Notification dated 22.01.2008?
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide-
(a) for regulating by licences, permits or otherwise the productioI1 or manufacture of any essential commodity;
(b) for bringing under cultivation only; waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops, generally, or of specified food-crops, and for otherwise maintaining-or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which any essential commodity may be brought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition. use of consumption of any essential commodities;
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(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
(j) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity-
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him
to the Central Government or a State Government or to an officer or to the Central Government or to a Corporation owned or controlled by agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1.-An order made under this clause in relation to food-grains, edible oil - seeds or edible oils, may having regard to the estimated production, in the concerned area of such food-grains, edible oil seeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation, the producers.
Explanation 2- For the purpose of this clause, “production” with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar.
(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs or cotton textiles which, in the opinion of the authority making the order, are, or, unregulated lated, are likely to be, detrimental to the public interest;
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters:
(i) for requiring persons engaged in the production, supply or distribution of, trade and commerce in, any essential commodity to maintain and produce for-inspection such books, accounts and records relating to their business and to furnish such
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information relating thereto, as may be specified in the order;
(ii) for the grant or issue of licences, permit or other documents, the charging of fees therefor, the deposit of such sum if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or' other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of a such forfeiture by such authority as may be specified in the order.
(j) for, any incidental and supplementary matters, including in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination:
(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be committed and any packages, covering or receptacles in which such articles are found;
(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is' iable to be forfeited under the provisions of this Act;
(iii) of any books of accounts and documents which in the opinion of such person would be useful for, or relevant to, any proceedings under this Act and the return of such books of accounts and documents to the person from whom they were seized after copies or extract there-from, as certified by that person in the manner specified in the order, have been taken.”
Section 5 which contains the power of delegation is to the
following effect:
(a) such officer or authority subordinate to the Central Government; or-
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(b) such State-Government or such officer or authority subordinate to a State Government, as may be specified in the direction.”
Provisions of the 1955 Act indicate that the Parliament delegated the authority to issue an order for regulating or prohibiting the production, supply and distribution of essential commodities to the Central Government. However, Section 5 empowered the Central Government to further delegate the power of issuing an Order or Notification under Section 3 to State Governments or to the Officer or authorities subordinate to the Central Government or State Government as may be specified in the direction. The Central Government in exercise of the power under Section 5 issued as Order delegating its certain powers to the State Governments for issuing Orders under Section 3 by delegation Order dated 13.11.1962. The delegation Order issued by the Central Government dated 13.11.1962 is as follows:
“ORDERS
New Delhi, the 13th Novemeber 1962
S.O.3524. In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955) as in force in India and as applied to the State of Pondicherry, the Central Government hereby directs that the powers conferred on it by Section 3 of the said Act to make order under clause(c ), (e), (e), (f), (h) (i) (ii) and (j) of sub-section (2) of that section shall in relation to the petroluem and petroleum products, be exercisable also by-
(i) the State Governments of Bihar,
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Gujra, Kerala, Madhya Pradesh, Madras, Maharashtra, Mysore, Punjab and Rajasthan, Uttar Pradesh and West Bengal.
(ii) the administrators of the Union Territories of Andamans and Nicobar, Delhi and Himachal Pradesh; and
(iii) the Chief Commissioner of Pondicherry and with the previouis consent of the aforesaid Governments, administrators and Chief Commissioner by an officer subordinate to it or him, as the case may be, and not below the rank of a District Magistrate.
(No.F 101(49)/62 PPD)”
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defines petroleum products in clause Section 2 (r) which is to the following effect:
“2(r) “petroleum Product” means motor spirit, high speed diesel oil petroleum-based lubricants and cooking gas”
The 1981 Order thus was meant to regulate the motor spirit and high speed diesel oil, petroleum based lubricants, cooking gas, etc. The 1981 Order begins with the following statement:
“SRO.60/88. Whereas the Government of Kerala are of the opinion that it is necessary and expedient so to do for ensuring the availability and distribution of unadultered petrol, high speed diesel, cooking gas and petroleum based lubricants at fair prices:
Now, therefore, in exercise of the powers conferred by sub-sections (1) and (2) of section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with the orders of the Government of India, Ministry of Mines and Fuel No. S.O.3524 dated the 13thNovember, 1962, published at page 3842 of Part II, sub-section (ii) of Section 3 of the Gazette of India dated the 24thNovember, 1962, the Government of Kerala hereby make the following Order, namely:-
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Section 3(2) as delegated to it. A Perusal of the 1981 Order indicate that the said Order provided for – clause (3) licencing of dealers; clause (4) cariers of petroleum products to obtain licence; clause (7) prohibition of possession of petroleum procuts by non-oil company or nondealer except in accordance with a permit; clause (11) application for grant of dealer's licence and clause (12) period of validity of licence, execution of agreement and payment of licece fees. After issuing the 1981 Order by the State Government, several Orders were issued by the Central Government under Section 3 with regard to liquified petroleum gas as noted above, the latest of such order is the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. Clause (3) of the 2000 Order contains restriction on unauthorised possession, supply and consumption of liquified petroleum gas; clause (4) restriction on storage and transport of liquified petroleum gas; clause (5) restriction on sale or distribution of liquified petroleum gas below or in excess of the standard weight; clause (6) prohibition on carrying unauthorised liquifieid petroleum gas equipments; clause (8) display of storage and sale of liquifieid petroleum gas by a distributor; clause (9) procurement storage and sale of liquified petroleum gas by a distributor; clause (13) power
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of entry, search and seizure; clause (14) provides for the overriding effect of the Order which is to the following effect:
“14. Overriding effect of the Order .- The provisions of this Order shall have overriding effect notwithstanding anything contained in any Order made by a State Government or a Union Territory Administration.
Clause (15) provides for power of the central to exempt which is as follows:
“15. Power to exempt.- The Central Government may, if it fconsiders necessary for avoiding any hardship or in consideration of the public interest, by a notification in the Official Gazette exdempt any person or class of persons from all or any of the provisions of this Order, either generallyh or for any specific purpose, and subject to such conditions as may be specified in the notification.
clause 16 provides for repeal and saving.
Similarly the 2005 Order was issued by the Central Government in supersession of the the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1998. Clause 2 contained the definition clause. Clause (3) provides for product supply and transportation; clause (4) provides for restriction on marketing of motor spirit and high speed diesel; clause (5)
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provides for grant of authorisation to market motor spirit and high speed diesel' clause (7) provides for power of search and seizure; clause (8) provides for sampling of product and testing; clause (9) provides for the power of Central Government to issue directions to any dealer, transporter or consumer or any other person, such direction as it considers necessary regarding storage, sale, transportation and disposal; clause (10) contains the overriding provision which is to the following effect:
“10 .Overriding effect :- The provisions of this Order shall have overriding effect notwithstanding anything to the contrary contained in any order made by a State Government or by an Officer of such State Government before the commencement of this Order except as respect anything done or omitted to be done thereunder before such commencement.
Similarly Petroleum Products (Maintenance, Production, Storage amd Supply) Order, 1999 was issued in supersession of the 1970 and 1974 Orders and in supersession of various orders as mentioned in clause (10) which provided for repeal and saving. The 1999 order was issued to regulate production, storage and supply of petroleum products in the interest of sustaining public life, economy and protecting consumer's interest. The 1999 Order contains detailed provisions regarding regulation, supply and distribution of
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petroleum products, collection of information, power to search and seizure, etc.
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Section 3 with regard to the subject matter which was delegated to the State Government.
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E.R. 616) while answering the question as to whether delegation of power itself divest the delegator of those powers following was observed:
“The first point which I have to consider is whether a competent authority, when it delegates some of its powers under reg.51, divests itself of those powers. The effect of delegation was considered in Huth v. Clarke [1890] 25 QBD 391). I need not deal with the facts of that case, but his judgment Lord Coleridge, CJ., said:
But delegation does not imply a denudation of power and authority; the sixth schedule of the Act that is the Act with which the was dealing provides that the delegation may be revoked or altered and the powers resumed by the executive committee. The word “delegation” implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating and many examples of this might be given.
In the same case Wills J, said (25 QBD 391 at page 395):
Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.”
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aspects of the expression “delegation”. The statement of law made by Coleridge, CJ was quoted with approval. The following was observed in paragraphs 8, 9 and 12:
“8. It is an accepted position in law that to "delegate" to another is not to denude yourself. As was observed by Wills, J. in Huth v. Clarke (1890 (25) QBD 391 : 63 LT 348):
"In my opinion the word, in its general sense and as generally used, does not imply, or point to, a giving up of authority, but rather the conferring of authority upon someone else."
As observed by Lord Coleridge, C. J. in 25 QBD 304, the word "delegation" implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The person delegating does not denude himself. (Per Wharton's Law Lexicon, 1976 Reprint Edn. at p. 316.) Delegation implies also the power to withdraw delegation. As indicated in Wharton's Law Lexicon, delegation is a sending away; a putting into commission; the assignment of a debt to another; the entrusting another with a general power to act for the good of those who depute him. The word "delegate" means little more than an agent. An agent exercises no power of his own but only the powers of his principal. The observation in Huth case (1890 (25) QBD 391 : 63 LT 348) was referred to in Roop Chand case (1963 Supp. (1) SCR 539 : AIR 1963 SC 1503). In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except insofar as it may already have become bound by an act of its delegate. [See Battelley v. Finsbury Borough Council (1958 LGR 165).]
"As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly
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selected member of a regular party convention.
As a verb, in its general sense and as generally used, the term does not imply, or point to, a giving up of authority, but rather the conferring authority upon someone else.
At common law, it is the transfer of authority by one person to another, the act of making or commissioning a delegate.
Expression 'delegation of authority of power' is a term which like the word 'delegate' does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself."
“When a sub-delegation as permitted by the enabling Act is made, it does not divest the authority making sub-delegation of his statutory authority. He may cancel the sub-delegation and resume his authority and he may even exercise concurrent powers without cancelling the sub-delegation.”
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not delegation of power by Central Government so as to denude itself of exericising any power delegated under Section 5. The sceheme of the Act indicate that the Central Government can still exercise power of issuing orders under Section 3 even if it has delegated the said power to the State Government. Use of the phrase “ be exercisable also by ” in Section 5 indicate that the power delegated to the delegatee be exercisable also by the delegator. Thus the scheme of the 1955 Act does not indicate that after delegation of the power to the State Government, the Central Government has to withdraw the delegation and thereafter exercise power under Section 3. The Central Government is empowered to exercise powers under Section 3 in spite of it having delegated its power to the State Government.
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(Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 as well as the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 clearly contain provision overriding any order issued by the State Government as delegatee of the Central Government. It shall be useful to refer to clause 10 of the 2005 Order which provides as follows:
“10. Overriding efffect :- The provisions of this Order shall have overriding effect notwithstanding anything to the contrary contained in any order made by a State Government or by an Officer of such State Government before the commencement of this Order except as respect anything done or omitted to be done thereunder before such commencement.”
Clause 10 contains a non-obstante clause qua the orders issued by the State Government or any Order before the commencement of the order by the Central Government. The intention is clear that any Orders issued by the State Government as delegatee shall stand overridden by the issuance of the order under Section 3 of the Central Government.
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the supply of essential commodities. The Defence of India Act, 1939 enabled the Central Government to frame rules among other things for maintaining supplies and service essentials to the life of the community. Various Orders have been issued by the Central Government in exercise of the powers under the said Act. Another enactment issued was Essential Supplies (Temporary Powers) Act, 1946 which contained provisions of Section 3, 4 and 6 which were akin to Sections 3, 5 and 6 of the 1955 Act. The Central Government in exercise of the powers under the Defence Act, 1939 has issued an order, viz., Iron, Steel and Scrap (Production, Procurement and Distribution) Control Order, 1949 operation of which order was continued by the Essential Supplies (Temporary Power) Act 1946. In the State of Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) Control Order, 1949 was issued by the Director of Civil Supplies to whom power was delegated by the State Government. By a notification issued by the Central Government, the Essential Supplies (Temporary Power) Act 1946 was made applicable to Part B State of Madhya Bharat. By a further notification dated 12.09.1950, the Indian Iron, Steel and Scrap Control Order, 1943 issued by the Central Government was made applicable to the State of Madhya Pradesh. The appellant before the Apex Court was proceeded
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with prosecution under the Madhya Bharat Iron, Steel and Scrap (Production, procumentment and Distribution) Control Order, 1949 which was challenged in the High Court. The Indian Iron, Steel and Scrap Control Order of the Central Government did not expressly provide for repeal of the Madhya Bharat Scrap Iron and Steel, etc. Order 1949. The Apex Court held that if the two Control Orders cannot operate simultaneously it would repeal and replace the State law. The following was observed in paragraph 14:
“In the first place, even if the provisions contained in the two sets of orders were in identical terms, it might be proper to hold that the Indian Scrap Order replaced the State Law in order to give some meaning and effect to the extension of the Indian Scrap Order to Madhya Bharat. But that is not the position here. There are marked differences between the provisions of the two orders such that it would not be possible for the two to stand together. For instance, Rule 3 of the Indian Scrap Order prohibits producers from acquiring or agreeing to acquire scrap except and in accordance with a written order of the Controller etc. There is no rule corresponding to this in the Madhya Bharat Scrap Order. In line with this, in Rule 6 of the Madhya Bharat Order which corresponds to Rule 8(4) of the Indian Scrap Order, there is no prohibition against acquisition for a higher price than the maximum fixed, such as is to be found in Indian Order. Again, Rule 7 of the Madhya Bharat Order relating to the restrictions on the movement of Scrap has no corresponding provisions in the Indian Scrap Order. Illustrations of this type of variation may be multiplied, but this is unnecessary as it was
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conceded that the provisions contained in the two orders were not identical. What we desire to emphasise is that the two orders, though achieving substantially the same object, are not identical in their provisions. If that is so, it is obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order would stand repealed and be replaced by the Indian law.”
The Apex Court further held that even if it is deemed that the Madhya Pradesh Scrap Control Order has been passed under the Act, 1946, the same shall stand replaced by application of Indian Scrap Order in the State of Madhya Pradesh. The following was stated in paragraph 15:
“When the Indian Scrap Order was extended to Madhya Bharat, the result was that it effectively replaced the Madhya Bharat Order on the same topic.”
A Division Bench of this Court had occasion to consider the similar issue in Tata Iron and Steel Co. Ltd. v. State of Kerala (1972 KLT 35). In exercise of the powers under Section 3, Government of India, made Iron and Steel Control Order, 1956. Clause 2A of the Control Order provided that the Central Government may exempt one or more categories as may be specified from all or any of the provisions of the Order. In exercise of the said power an order dated 29.02.1957 was issued exempting certain categories of iron and steel. The Central Government by Order
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dated 18.06.1966 delegated the power to make orders specified in clause (d) to (j) of Section 2(3) to the Government of Kerala. The State of Kerala issued an Order on 02.04.1968 iz., Iron and Steel (Declaration of Stocks and Maintenance of Accounts) Order, 1968. In pursuance of the said order, the Director of Industries and Commerce issued Circular dated 22.04.1968 to all dealers requiring them to furnish stock statement of the due date to the Director. Writ Petition was filed challenging the said order as well as the Circular issued by the Director of Industries and Commerce. The Division Bench held that power of delegatee can only be subejct to the powers of the principal. It was contended before the Division Bench that the said Orders were directly in confict with the provisions of the Iron and Steel Control Order and the 1968 Order as a whole should be held to be invalid. The Division Bench further laid down that the law is well established that if power is vested with two authorities one subordinate to the other, to act in respect of certain matter, the subordinate authoritaties have no authority to act, if the superior authority has already acted. The following was stated in paragraph 9:
“9....But the law is well established that if power is vested in two authorities, one subordinate to the other, to act is respect of a certain matter, the subordinate authority has no scope to act, if the
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superior authority has already acted. It would be all the more so, if the subordinate authority makes different and more stringent provisions. It was contended on behalf of the respondents that Clause.12 of the Iron and Steel Control Order only empowers the Controller to act in respect of the matters mentioned therein, and that so long as the Controller has not acted in exercise of that power no question of any inconsistency with the provisions contained in Clause.5 of Ext. P3 arises. Such a contention was advanced before the Supreme Court in State of Orissa v. Tulloch & Co. (AIR 1964 SC 1285). In that case the constitutional validity of certain provisions in the Orissa Mining Areas Development Fund Act, 1952. which empowered the State Government to levy a cess or a fee on all extracted minerals for the development of the mining areas was questioned on the ground that the said provisions were repugnant to S.18(1) of the Mines and Minerals (Regulation and Development) Act, 1957. This section only empowered the Central Government to take all steps as may be necessary for the conservation and development of minerals in India; but the Central Government had not taken any such steps or made rules in that respect. So it was contended that, until the Central Government acts under S.18(1), there was no repugnancy, which should exist in fact, and not depend merely as a possibility. The contention was rejected by the Supreme Court. After laying down the tests which should be applied for ascertaining whether there is conflict between the two legislative provisions we have already quoted the relevant passage the Court stated:
"In the present case, having regard to the terms of S.18(1), it appears clear to us that the intention of Parliament was to cover the entire field, and thus to leave no scope for the argument that until rules ware framed, there was no inconsistency and no supersession of the State Act."
The same principle applies here. The authority competent to exercise the power under S.3 of the Act is the Central Government; and that authority has exercised the power in respect of the matters mentioned in Clause.12 of the Iron and Steel Control Order by empowering the Controller to do such things as he deems necessary. Then the State Government, who is another delegate of the Central Government, has no scope to come into that field and do anything. The powers delegated to the State Government are not additional powers, but concurrent powers which can be exercised only subject to
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the exercise of the said powers by the Central Government. Clause.5 of Ext. P3 cannot, therefore, be sustained in the face of Clause.12 of the Iron and Steel Control Order.”
Ultimately, the following was ordered in paragraph 10:
“10. For the reasons stated above, we bold that the State Government Order, Ext. P3 cannot apply to the petitioner who is governed by the Iron and Steel Control Order, 1956. Ext. P4 is a notice issued by the second respondent pursuant to Ext. P3, and it cannot, therefore, be sustained. Ext. P4 is accordingly quashed.”
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is useful to refer to only a few of the provisions of the 1981 and 2005 Orders for understanding the scheme of the Orders issued by the Central Government under Section 3. As noted above, the 1981 Order was issued by the State of Kerala in exercise of the delegation Order dated 13.11.1962 of the Central Government. Order of the State of Kerala, viz., the Kerala Petroleum Products Dealers Licensing Order, 1981 was issued to cover all petroleum products which were defined in clause 2(r) such as motor spirit, high speed diesel oil, petroleum based lubricants and cooking gas. As noted above, after the delegation order dated 13.11.1962, the Central Government issued various Orders under Section 3. Separate Order has been issued with regard to different petroleum products, viz., separate Order has been issued for the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), separate Order has been issued for liquified petroleum gas, and separate Order has been issued for petroleum based lubricants. When the petroleum products which were generally covered by the 1981 Order of the State were separately dealt by the Central Government under Section 3, the new Statutory regime brought by Section 3 has to prevail and given effect to which is the clear intendment of the Orders issued by the Central Government under Section 3.
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The scheme of the 1981 Order as compared to the subsequent Statutory scheme brought into by the Central Government as per Section 3 is clearly apparent by a perusal of the different provisions of the 1981 Order and subsequent Orders issued by the Central Government under Section 3. For eg., we take up certain provisions of the 1981 Order, i.e., the Kerala Petroleum Products Dealers Licensing Order, 1981 and the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Order 2005 to examine the scheme of the aforesaid two orders. The 1981 Order defines 'dealer' in clause 2(g) as a person engaged in the business of purchase, sale and storage for sale of petroleum products, duly appointed and authorised by an Oil Company but does not include an Oil Company. Clause (3) of the 1981 Order provides for Licensing of dealers which is as follows:
“3. Licensing of dealers.- (1) No person shall commence or carry on the business of storage or sale or any petroleum product in the State except under and in accordance with the terms and conditions of license from the licensing authority within 30 days from the date of commencement of this Order.”
The 2005 Order defines 'dealer' in clause 2(d) which is to the following effect:
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“2(d) “dealer” means a person to purchase, receive, store and sell motor spirit and high speed diesel oil whether or not in conjunction with any other business and shall include his representatives, employees and agents.”
Clause (5) provides for grant of authorisation to market motor spirit and high speed diesel which is to the following effect:
“5. Grant of authorisation to market motor spirit and high speed diesel. - (1) Whoever desires to secure authorization to market and sell motor spirit and high speed diesel shall submit an application to the Central Government as per the form given in Sch.II along with a fee of rupees ten lacs either by way of banker's cheque or Demand Draft in favour of Pay and Accounts Officer, Ministry of Petroleum and Natural Gas payable at New Delhi.
(2) After scrutiny of the application, the Central Government shall, if it is satisfied with the details furnished by the applicant, after requiring the applicant to furnish bank guarantee for the amount specified by the Government, issue authorization to market motor spirit and high speed diesel indicating the terms and conditions of such authorization.
(3) The Central Government, if is satisfied that any of the conditions relating to the authorization as specified in clause have been violated, may cancel the authorization issued under this clause:
PROVIDED THAT before cancellation of the authorization the applicant shall be afforded an opportunity of being heard.”
The 1981 Order issued by the State Government which was basically a Dealers Licensing Order has been clearly
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overridden by providing a different scheme for the State Government for granting authorization in accordance with clause (5) of the 2005 order.
“19. Power of entry, search and seizure.- (1) Any officer of the Civil Supplies Department not below the mark of an Assistant Taluk Supply Officer or any officer of the Police Department not below the rank of a Sub Inspector may with a view to securing compliance with the provisions of this Order:-
(a) inspect any dealer outlet and test the petroleum products in his stock and also take samples of the same for further analysis.
(b) seize the entire stock of petroleum products in his possession if he has reasons to believe that the petroleum products are adultered.
( c) seize any book of accounts or other documents, maintained by the dealer which in his opinion would be useful for proceeding further under this Order.
(d) stop any lorry, tanker or any other vehicle transporting petroleum products and test the petroleum products contained inn the vehicle.
(e) seize the vehicle transporting petroleum products if he has reasons to believe that the petroleum products are adulterated or any of the provisions of this Order is violated.
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(2) The provisions of the Code of the Criminal Procedure, 1973 (Central Act 2 of 1974), relating to search and seizure shall, so far as may be, apply to search and seizure under this clause.
(3) Where any of the authorities specified in sub-clause (1) effects any seizure under the said sub-clause he shall prepare forthwith an inventory of petroleum products, vehicle or other articles seized and shall also issue a receipt for the same.
(4) Any books of accounts or documents seized under the provisions of sub-clause (1) shall be returned to the person whom they were seized not later than sixty days from the date of seizure, after taking copies thereof, or extracts therefrom, if necessary, provided that the person from whom they are so seized certifies as true such copies or extracts before taking back the books of accounts or other documents.
(5) Where a stock of petroleum products or a vehicle liable for confiscation seized under the provisions of this Order, the Officer making the seizure shall take all measures necessary for securing the production of petroleum products or the vehicle before the appropriate court and for the safe custody of the same pending such production.
Explanation.-“Appropriate Court” in this sub-clause shall mean such court as is specified in or under the Essential Commodities Act, 1955 in which proceedings would lie for contravention of the provisions of this Order and shall also include the Collector of the District referred to in Section 6A.”
The 2005 order also contains a provision relating to power of search and seizure in clause (7) which is to the following effect:
“7. Power of search and seizure.- (1) Any Gazetted Officer of the Central Government or a State Government or any Police
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Officer not below the rank of Deputy Superintendent of Police duly authorized, by general or special order of the Central Government or a State Government, as the case may be, or any officer of the oil company, not below the rank of Sales Officer, may with a view to securing compliance with the provisions of this Order, or for the purpose of satisfying himself that this Order or any Order made thereunder has been complied with or there is reason to believe that all or any of the provisions of this Order have been and are being or are about to be contravened.-
(a) enter and search any place or premises of a dealer, transporter, consumer or any other person who is an employee or agent of such dealer or trans' or consumer.
(b) stop and search any person or vehicle receptacle used or intended to be used for movement of the product.
(c) take samples of the product and seize any of the stocks of the product and the vehicle or receptacle or any other conveyance used or suspected to be used for carrying such stocks and thereafter take or authorize the taking of all measures necessary for securing the production of stocks or items so seized before the Collector of District Magistrate having jurisdiction under the provisions of the Essential Commodities Act, 1955 and for their safe custody pending such production;
(d) Inspect, seize and remove with, such aid or assistance as may be necessary, books, registers, any other records or documents of dealer, transporter, consumer or any other person suspected to be an employee or agent of the dealer, transporter or consumer.
(2) While exercising the power of seizure provided under sub-clauses (c ) and (d) above, the Authorised Officer shall record in writing the reasons for doing so and a copy of such recording shall be provided to the dealer, transporter, consumer or any other concerned person, as the case may be.
(3) The provisions of Sec.100 of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall, as far as may be, apply to searches and seizures under this Order.”
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A perusal of clause (19) of the 1981 Order and clause (7) of the 2005 Order clearly indicate that power of search and seizure given in the said Order is clearly not in accordance with the powers of search and seizure as given in clause (7) of the 2005 Order. Clause (7) having overriding effect by virtue of clause (10) of the 2005 Order, the power of search and seizure in the 2005 Order shall prevail.
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regimes for different petroleum products by the Central Government has been provided for by issuance of Orders under Section 3 with different objects and looking into the nature of the petroleum products and the regulatory regime required for such petroleum products, the Central Government clearly intended that the earlier State Order 1981 which is contrary to the scheme which was enforced by the Central Government by the subsequent Orders shall be overridden.
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present is a case where the State under the 1981 Order is not exercising any of its legislative power rather the State is exercising only delegated power delegated to it by the Central Government under the 1955 Act. However, the principles which have been laid down for finding out repugnancy in two Statutes can also be referred to and looked into while finding out inconsistencies between the Orders issued by the State in exercise of the delegated power as well as the Orders issued by the Central Government under Section 3. It is useful to refer to the judgment of the Apex Court in
State of Orissa v. M.A. Tulloch & Co. (AIR 1964 SC 1284) where the Apex Court has laid down that when the Constitution expressly or by necessary implication provides that enactment of one Legislature has priority over the other, to the extent of the repugnancy, the one supersedes the other. It was further held that two enactments may be repugnant to each other even though obedience to each of them is
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possible without disobeying the other. The Apex Court further held that the inconsistency is demonstrated not by a detailed comparison of provisions of the two Statutes but by the mere existence of the two pieces of legislation. The following pertinent observation was made in paragraph 15:
“15.....Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after wold be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of S. 18(1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no supersession, of the State Act.”
The Principle enunciated by the Apex Court in the aforesaid judgment can very well be looked into to find out inconsistency between the Orders issued by the
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State in exercise of the powers under Section 5 and the Order issued by the Central Government under Section 3. The Order issued by the State exercising sub-delegated power has to be clearly subservient to the Orders issued by the Central Government under Section 3, if any contrary intention is demonstrable in the Order issued by the Central Government. In this context it is relevant to notice the decision of the Apex Court in Harishankar Bagla v. M.P. State (AIR 1954 SC 465) where the Apex Court had occasion to consider Section 6 of the 1946 Act which provision is pari materia to Section 6 of the 1955 Act. The Apex Court noted that Section 6 does not either expressly or by implication repeal any of the provisions of the pre-existing law neither does it abrogate them but the laws are simply bypassed. In paragraph 12, the following has been laid down:
“12......Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out
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from the statute book. The effect of Section 6 certainly is not to repeal any one of those laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the Order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions.”
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the Central Government. Whenever two Statutes cover the same subject it is well established that the Statute later in point of time prevails. In Municipal Council, Palai v. T.J.Joseph (AIR 1963 SC 1561) the Apex Court held that subsequent legislation represents the latest will of the legislation and should prevail. It is useful to quote the following from paragraph 17:
“17.....The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision....”
the considered opinion that the 1981 Order issued by the State Government in exercise of the power delegated to it by the Central Government stood overridden by the subsequent Orders issued by the Central Government on the subject matter of the 2000, 2005 and 1987 Orders as noted above and there was no occasion for the State Government to enforce the 1981 Order by Notification dated 22.01.2008. The State was
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totally oblivious to the fact that after the delegation order dated 13.11.1962 issued by the Central Government to the State Government to exercise the delegated power much water has flown and several Statutory regimes have become operational regulating the petroleum products separately. Enforcement of the 1981 Order by notification dated 22.01.2008 is wholly arbitrary and unjustified. The learned Single Judge did not commit any error in holding that the 1981 Order is unenforceable and void. We thus approve the view taken by the learned Single Judge, however, for the reasons as stated above.
In the result, all the Writ Appeals are dismissed.
Parties shall bear their own costs.
ASHOK BHUSHAN, CHIEF JUSTICE.
A.M. SHAFFIQUE, JUDGE.
vsv
2 issues framed by the court
Did subsequent Central petroleum control orders override the State's petroleum dealers licensing order issued under delegated powers?
Could the State enforce its overridden licensing order through a later notification?
Colour shows how this judgement treated each authority
Huth v. ClarkeRelied on¶174
[1890] 25 QBD 391
Gordon, Dadds & Co. v. Morris and OthersRelied on¶174
Gordon, Dadds & Co. v. Morris and Others
Ishwar Singh v. State of RajasthanRelied on¶182
([2005] 2 SCC 334) · Who else cites this
Harish Chandra v. State of Madhya PradeshRelied on¶210
AIR 1965 SC 932 · Who else cites this
Tata Iron and Steel Co. Ltd. v. State of KeralaRelied on¶223
(1972 KLT 35)
State of Orissa v. M.A. Tulloch & Co.Applied¶295
(AIR 1964 SC 1284) · Who else cites this
Harishankar Bagla v. M.P. StateApplied¶303
(AIR 1954 SC 465) · Who else cites this
Municipal Council, Palai v. T.J.JosephRelied on¶312
(AIR 1963 SC 1561) · Who else cites this
10 provisions across 6 enactments
STATE OF KERALA
THE COMMISSIONER OF CIVIL SUPPLIES
THE TALUK SUPPLY OFFICER
ALL KERALA BHARAT GAS DISTRIBUTORS ASSOCIATION
JOSEPH GEORGE P.
UNION OF INDIA
ASHOK BHUSHAN
A.M. SHAFFIQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
