309 of 1953
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights
K C Jain and B P Maheshwari for the petitioners
K B Asthana and C P Lal for the respondents
October 18
The Judgment of the Court was delivered by DAS J
This is a petition made under article 32 of the Constitution by the Chamber of Commerce Hapur and three individual persons praying for a writ in the nature of mandamus directing the State of Uttar Pradesh and two of its officers in the Food Department to abstain from enforcing the Uttar Pradesh Food Grains Futures and Options Prohibition Order 1945 or any orders or directions contained in the letters issued by the respondents copies whereof are annexed to the petition and marked B and D
The facts and circumstances leading up to this application may be shortly stated at the outset
The Chamber of Commerce Hapur is a company incorporated under the Indian Companies Act with its registered office at Hapur
There are about 200 members of this Chamber of Commerce including petitioners Nos
2 to 4
Petitioner No 3 is also its resident and Petitioner No 2 is also a member of its Executive Committee
The members of the Chamber carry on business in foodgrains including pulses both on ready and forward basis
The Chamber acts as a clearing agent for a commission and guarantees the performance of forward contracts by its members upon payment of margin money according to the rules
841 On or about the 1st September 1945 the U P Government in exercise of powers conferred on it by rule 81 2 of the Defence of India Rules issued Notification No 8071cs
promulgating the United Provinces Food Grains Futures and Options Prohibition Order 1945 hereinafter called the 1945 Order
Section 2 a of that Order defined  foodgrains as meaning any of the foodgrains mentioned in the schedule thereto
Arhar peas urd and moong were mentioned as items 6 7 8 and 9 of that schedule
Section 3 provided as follows  3
No person shall aenter into any futures in foodgrains or pay or receive or agree to pay or receive any margin relating to any such futures b enter into any options in foodgrains
The Defence of India Rules expired on the 30th September 1946 and consequently all orders made thereunder were also due to expire on the same date
On the 1st October 1946 however there came into force the Essential Supplies Temporary Powers Ordinance 1946 hereinafter referred to as the 1946 Ordinance promulgated by the Governor General and published in the Gazette of India on the 25th September 1946
Section 3 of that Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities as defined in section 2a thereof
Section 4 authorised the Central Government to direct by notified order that the power to make orders under section 3 should in relation to such matters and subject to such conditions as might be specified in the direction be excercisable also by such officer subordinate to it or by such Provincial Government or such officer thereof as might be specified in the direction
Section 5 of that Ordinance ran as follows   5
Continuance in force of existing orders
Until other provisions are made under this Ordinance any order whether notified or not made by whatever authority under rule 80 B or sub rule 2 or sub rule 3 of rule 81 of the Defence of India Rules in respect 842 of any matter specified in section 3 which was in force immediately before the commencement of this Ordinance shall notwithstanding the expiration of the said rules continue in force so far as consistent with this Ordinance and be deemed to be an order made under section 3 and all appointments made licenses or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made granted or issued in pursuance of this Ordinance
 The 1945 Order therefore continued in force until other provisions were made under the 1946 Ordinance
In exercise of powers conferred on it by section 4 of the 1946 Ordinance the Government of India on the 21st October 1946 made the notified order No CG6032 IIl1 directing that the powers conferred on it by section 31 of that Ordinance should in relation to foodstuffs be exercisable also by any Provincial Government subject to certain conditions therein set out
In November 1946 was passed the Essential Supplies Temporary Powers Act 1946 hereinafter called the Act
Section 3 of the Act reproduced section 3 of the 1946 Ordinance with certain modifications not material for our present purpose
Section 4 of the Act corresponds to section 4 of the 1946 Ordinance
The relevant portions of section 17 of the Act provide as follows   17
Repeal and savings 1 The Essential Supplies Temporary Powers Ordinance 1946 XVIII of 1946 is hereby repealed
2Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act and all appointments made licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made granted or issued in pursuance of this Act
843 3         4    In exercise of powers conferred on it by section 4 of the Act the Central Government by Notification No C G 6032 III1 dated the 5th March 1947 amended the abovementioned notified order No PY 6032 I dated the 21st October 1946 by inserting after the word foodstuff the words including cocoanut oil but excluding other edible oils and oilseeds  The net result of this notification was that edible oils and oilseeds were excluded from the scope or operation of the delegated power
In other words the power delegated to the Provincial Government was withdrawn in respect of edible oils and oilseeds so that the Provincial Government could not thenceforth make any order controlling the production supply and distribution of or trade and commerce in edible oils and oilseeds
On the same day another Notification being Notification No C G 6032 III2 was issued by the Central Government in exercise of powers conferred on it under section 3 of the Act directing that no order made or deemed to be made by a Provincial Government under the Act should have effect from that date so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil from any place in a Province to any other place within or outside the Province or so as to regulate or control the price production or distribution thereof in any way
Therefore the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil or so to regulate or control the price production or distribution thereof in any way
On the 15th November 1947 two Notifications were issued by the Central Government
By Notification No PY
6032 VI1 made under section 4 of the Act the Central Government made a further amendment in Notification No PY
6032 1 dated the 21st October 1946
by inserting after the word oil seeds the words and pulses other than gram
The effect of this amendment was that pulses other than gram were 844 also excluded from the operation of the power delegated to the Provincial Governments
In other words the power delegated to the Provincial Governments was withdrawn in respect also of pulses other than gram so that the Provincial Governments could not thenceforth make any order controlling the production supply and distribution of or trade or commerce in edible oils and oilseeds and pulses other than gram
Simultaneously by Notification No PY
603 2 VI2 made on the 15th November 1947 under section 3 of the Act the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect from that date so as to prohibit or restrict the movement of pulses other than gram from any place in a Province to any other place within or outside the Province or so as to regulate or control the price production or distribution thereof in any way
As a result of this Notification the 1945 Order also ceased to have effect so as to prohibit or restrict the movement of pulses other than gram or so as to regulate or control the price production or distribution thereof in any way
Then came the Uttar Pradesh Foodgrains Futures and Options Prohibition Order  1951
It was promulgated by the State of Uttar Pradesh on the 20th September 1951
By section 2a this Order defined foodgrains as meaning any of the foodgrains specified in the schedule thereto
Arhar peas urd and moong were items Nos 6 7 8 and 9 of that schedule
Section 3 of the Order ran as follows  No person shall aenter into any futures in foodgrains or pay or receive any margin relating to any such futures b enter into any options in foodgrains
 Section 8 made a contravention of any provision of the
Order or any order issued thereunder punishable under sections 7 and 7 A of the Act of 1946
By section 9 of this Order the 1945 Order was withdrawn
As the Uttar Pradesh Foodgrains Futures and Options Prohibition Order 1951 directly made it illegal and a punishable offence for any person to enter into any futures in amongst others arhar peas urd and moong or to pay or receive or to agree to pay or receive any margin relating to any such futures
IO members of the Chamber of Commerce Hapur including the  present petitioners Nos 2 to 4 on the 29th October 1951 made an application to this Court under article 32 of the Constitution for enforcement of their fundamental right under article 191g to carry on their business and prayed for the issue of a mandamus restraining the State of Uttar Pradesh from enforcing the Uttar Pradesh Foodgrains Futures and Options Prohibition Order 195 1 in so far as it related to pulses other than gram and from exercising any power there
under and for a declaration that section 2a read with items 6 78 and 9 of the schedule thereto was illegal and ultra vires the powers of the State Government
That application succeeded and the offending Notification to the extent it dealt with arhar peas urd and moong was declared invalid and the State of Uttar Pradesh was directed to abstain from giving effect to it
As will appear from the judgment pronounced by this Court on the 15th May 1952 on that application it was not seriously disputed that the effect of the amendments referred to above was that the power to control and regulate trade originally delegated to the Provincial Government by Notification No PY
6031 I dated the 21st October 1946 was modified so as to exclude from the scope of such delegation pulses other than gram
On the 10th June 1953 a letter exhibit B to the petition was addressed by the Deputy Commissioner Food Uttar Pradesh to all Regional Food Controllers and Deputy Regional Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the schedule to the 1945 Order including pulses other than gram as punishable
The reasoning advanced was that the Uttar Pradesh Foodgrains Futures and Options Prohibition Order 1951 having been declared ultra vires by the judgment pronounced by this Court on the 15th May 1952 that Order became unenforceable and 108 846 consequently the 1945 Order continued in force
A copy of this letter was forwarded amongst others to the Chamber of Commerce Hapur for information and guidance
By its letter dated the 25th June 1953 the Chamber pointed out that the earlier Order of 1945 had been withdrawn by section 9 of the Order of 1951 and as the last mentioned section had not been declared ultra vires by the Supreme Court the 1945 Order could not be regarded as continuing in force
On the 17th September 1953 the Regional Food Controller of Uttar Pradesh wrote a letter exhibit D to the petition to the President Chamber of Commerce Hapur asking the latter to immediately stop all future transactions pertaining to the foodgrains mentioned in the schedule to the 1945 Order in which delivery was contemplated within the State of Uttar Pradesh and threatening action to be taken against the Chamber
This threat of action necessitated the present petition for the reliefs mentioned above
Learned advocate appearing for the State seeks to justify the attitude of the State on two grounds
It is urged that section 3 of the 1946 Act which reproduced with certain modifications section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities
This power was delegated by the Central Government to the Provincial Governments by Notifi cation No PY
6032 1 issued on the 21st October 1946 under section 4 of the 1946 Ordinance
The subsequent amendments made by Notification No CG 6032 III1 dated the 5th March 1947 and Notification No PY
6032 VI1 dated the 15th November 1947 withdrew the power so delegated only with respect to edible oils and oilseeds and pulses other than gram and such withdrawal was only with regard to the production supply and distribution of those commodities but not with regard to trade and commerce therein
The second ground advanced is that the Order of 1951 having been declared ultra vires the Order of 1945 which was continued first by section 5 of the 1946 Ordinance and then by section 17 of the Act remained 847 in full force
In our judgment there is no substance in either of the two arguments
As we have already pointed out two Notifications were published on the 5th March 1947and two Notifications were issued on the 15th November 1947
By Notification No C G 6032 III1 dated the 5th March 1947 and Notification No PY
603 2 VI 1 dated the 15th November 1947 the earlier Notification No 6032 I dated the 21st October 1946 was amended by inserting therein the words edible oils and oilseeds and pulses other than gram and thereby excluding those commodities from the scope of the delegation
As a result of these amendments the Provincial Governments could not from and after the respective dates of those amending Notifications make any order controlling production supply distribution of or trade and commerce in those commodities
These Notifications did not puport to affect Notifications that had been previously made
But simultaneously with these amending Notifications two more Notifications were issued namely Notification No CG 6032 III2 dated the 5th March 1947 and Notification No PY
6032 VI2 dated the 15th November 1947
By these Notifications the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price production or distribution of those commodities in any way
As a result of the joint operation of these Notifications the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price production or distribution of those commodities
As that Order of 1945 ceased to have effect with regard to the price production distribution and movement of those commodities it is not easy to comprehend how that Order could continue to regulate or control trade or commerce in those commodities
Trade or commerce in any commodity cannot be controlled unless the price production distribution and movement of that commodity can also be controlled
848 It follows therefore contrary to the contentions of the State that these two Notifications of 1947 quite effectively superseded the 1945 Order so far as it purported to regulate or control the price production distribution and movement of or trade and commerce in edible oils and oilseeds and pulses other than gram
The second branch of the argument is equally fallacious
It is wholly incorrect to say that the judgment pronounced by this Court on the 15th May 1952 declared the Uttar Pradesh Foodgrains Futures and Options Prohibition Order 1951 ultra vires and invalid in its entirety
That judgment only declared it invalid to the extent of the restrictions complained of by the then petitioners namely in so far as it purported to restrict dealings in edible oils and oilseeds and pulses other than gram
The rest of that Order of 1951 and in particular section 9 by which the 1945 Order had been withdrawn remained unaffected by that judgment of this Court
It is quite difficult to appreciate how in the circumstances the Order of 1945 can be regarded as having been revived by the judgment in respect of edible oils and oilseeds and pulses other than gram in spite of the express withdrawal of that Order by section 9 of the Order of 1951 which otherwise remains operative
In our judgment there is no substance whatever in either of the two branches of argument advanced before us and this application must succeed
Accordingly we grant prayers a b c and d of the petition
Before concluding we desire to express our strong disapproval of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh
Assuming there was any substance in their contentions the same should have been advanced before this Court on the previous occasion for the contentions if wellfounded would have been a complete answer to that application
If the contentions were subsequently discovered then the same should have been brought before the Court by way of review if any review lay
849 Instead of adopting that straightforward course the officers of the State have sought to circumvent the decision of this Court on a flimsy pretext and covertly to challenge its correctness on an obviously untenable plea which has not even the merit of a seeming plausibility
This conduct verges dangerously on a contempt of this Court
We desire to make it quite clear that we view with great disfavour such unworthy attempt to get round the decision of this Court


Summary:
Uttar Pradesh Food grains Futures and Options Prohibition Order 1951 made it illegal and a punishable offence for any person to enter into any futures in pulses other than gram or to pay or receive or to agree to pay or receive any margin relating to such futures
By section 9 of that Order the Order of 1945 containing similar provisions was repealed
An application under article 32 of 839 the Constitution presented by several persons including the present petitioners for the enforcement of their fundamental right under article 191g of the Constitution to carry on their business and restraining the State from enforcing the Order of 1951 in so far as it related to pulses other than gram and for a declaration that section 2a of the Order read with items 6 7 8 and 9 of the schedule thereto was illegal and ultra vires the State Government  succeeded in the Supreme Court and the State of Uttar Pradesh was directed by the Supreme Court by its judgment dated the 15th day 1952 to abstain from giving effect to it
On the 10th June 1953 a letter Exhibit B to the petition was addressed by the Deputy Commissioner Food Uttar Pradesh to all Regional Food Controllers and Deputy Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the Schedule to the 1945 Order including pulses other than gram as punishable
It was contended on behalf of the State 1 that section 3 of 1946 Act which reproduced section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities and this power was delegated by the Central Government to the Provincial Government by notification dated 21st October 1946 under section 4 of the 1946 Ordinance
The subsequent amendments made by two Notifications dated 5th March 1947 and dated 15th November 1947 withdrew the power so delegated only with respect to edible oils and oil seeds and pulses other than gram and such withdrawal was only with regard to production supply and distribution of those commodities but was not with regard to trade and commerce therein ii that the Order of 1951 having been declared ultra vires the Order of 1945 which was continued by section 5 of the Ordinance of 1946 and then by section 17 of the Act of 1946 was still in force
Held repelling the contentions i that as the Order of 1945 ceased to have effect with regard to the price production distribution and movements of those commodities that Order could not in any way continue to regulate or control trade or commerce in those commodities and the two Notifications of 1947 quite effectively superseded the Order of 1946 so far as it purported to regulate or control the price production distribution and movement of or trade and commerce in edible oils and oil seeds and pulses other than gram ii that the Order of 1951 was not declared ultra vires and invalid in its entirety by the judgment of the Supreme Court dated 15th May 1952
The Order was declared invalid in so far as it purported to restrict the dealings in edible oils and oil seeds and pulses other than gram
The rest of the Order of 1951 and in particular section 9 thereof by which the Order of 1945 had been withdrawn remained unaffected by the judgment of the Supreme Court
840 Strong disapproval was expressed by the Supreme Court of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh in circumventing the decision of the Supreme Court on a flimsy pretext
The contentions advanced on behalf of the State Government should have been advanced before the Supreme Court on the previous occasion when it delivered its judgment dated 15th May 1952 or the matter should have been brought before the Supreme Court by way of review if any review was competent