JUDGMENT [ENTITY], J.
1. The petitioner in this writ application has questioned the authority of the respondent Sub-divisional Officer who has issued notices to the petitioner directing him to deliver rice to the Bihar State Food and Civil Supplies Corporation in accordance with the provisions of the [ACT] (hereinafter to be referred to as 'the Procurement Order').
2. The petitioner owns and runs a single huller rice mill. It is the case of the petitioner that on 15-1-1980 he was served with a notice issued by the respondent Sub-divisional Officer stating therein that according to the aforesaid Procurement Order the petitioner should deliver 40% of the rice produced by it each day to the Bihar State Food and Civil Supplies Corporation, in the alternative he may enter into compounding agreement to deliver 2000 quintals of rice for the Kharif year 1980-81, failing which legal action shall be taken against the petitioner. According to the petitioner, as the Procurement Order itself is invalid having no force in law, the petitioner is not liable to deliver any paddy or rice as required by the said order.
3. [SECTION] of the [ACT] (hereinafter to be referred to as 'the Act') prescribes that whenever the Central Government is of the opinion that it was necessary and expedient for maintaining or increasing supply of essential commodities or for securing equitable distribution and availablity of such commodities at fair price it may by order provide for regulating supply and distribution of such essential commodities. [SECTION] enumerates some of the purposes for which such order can be made. [SECTION], with which we are concerned in this writ application, vests power in the Central Government to make order requiring any person to sell any part of the essential commodity held in stock or produced or received by him to the Central Government or the State Government or to any Corporation owned and controlled by such Government. Under that very clause, the Central Government has been authorised to fix the price, if an order to be made in relation to foodgrains. In view of [SECTION], an order made under [SECTION], if it is of a general nature or affecting a class of persons, has to be notified in the official Gazette. [SECTION] is the provision regarding delegation of the powers by the Central Government to officers or authorities subordinate to the Central Government or to State Government and its officers, the relevant portion whereof is as follows:
"5. The Central Government may, by notified order, direct that the power to make orders or issue notifications under [SECTION] shall, in relation to such matters and subject to such conditions if any, as may be specified in the direction, be exercisable also by -
(a) xx xx xx Or
(b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction."
On a plain reading of the aforesaid [SECTION] it will appear that the Central Government can direct the State Government to make order under [SECTION] in relation to such matters and subject to such conditions as may be specified in the order of delegation. From time to time the Central Government in accordance with the aforesaid section by notified orders, has directed that the power under [SECTION] may be exercised by different State Governments, including the State of Bihar, in respect of different essential commodities.
4. The order of delegation which is in force was published in Notification GSR 800 dated 9-6-1978 which was issued by the Central Government in exercise of the power conferred on it by the aforesaid [SECTION] saying that the power under [SECTION] of the Act to make orders in respect of matters specified in [SECTION] thereof in relation to foodstuffs shall be exercisable also by the State Government subject to the conditions.
"(1) that such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in this behalf:
(2) that before making an order relating to any matter specified in the said Clause (a), (c) or (f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff, under the said Clause (d) the State Government shall also obtain the prior concurrence of the Central Government, and (3) that in making an order relating to any of the matters specified in the said Clause (j) the State Government shall authorise only an officer of Government"
The procurement Order has been made by the State Government on the basis of aforesaid order of delegation. There should not be any dispute that the State Government as the delegated authority has to make an order in accordance with the conditions mentioned in the order of delegation itself.
5. On behalf of the petitioner it was urged that one of the conditions mentioned in the order of delegation aforesaid as well as in [SECTION] of the Act, as amended by [ACT] is that before making an order relating to any matter specified in Clause (f) of Sub-
section (2) of [SECTION] of the Act. i. e., before making any Procurement Order, the State Government must obtain prior concurrence of the Central Government. According to the petitioner, the Procurement Order in question has been made without such prior concurrence of the Central Government, and, as such, it is invalid. It was also submitted that the said Procurement Order was never published in the Bihar Gazette as required by [SECTION] of the Act on 9-12-1980 when it is said to have been made, or any time soon thereafter, and, as such, it will be deemed not to have come in force at all.
6. Cause has been shown on behalf of the respondent State and several affidavits have been filed, one of which has been sworn by the Food Commissioner, Bihar. It is not the stand of the respondents, and, perhaps, it could not have been in view of the specific condition mentioned in the order of delegation as well as in [SECTION] itself, as amended by [ACT] that the Procurement Order in question could have been framed without prior concurrence of the Central Government. But, according to them, there has been compliance of this requirement, and, as such, the Procurement Order cannot be held to be invalid. About publication, their stand appears to be that no sooner the procurement Order was made on 9-12-1980, a copy thereof was sent for publication to the Secretariat Press, Gulzarbagh and there might have been some delay in publication in the Official Gazette but copies of the procurement Order were circulated to different officers in the different Subdivisions of the State,
7. Before I deal with the submissions made on behalf of the petitioner, I may indicate the salient features of the Procurement Order in question. It requires the rice millers to sell for kharif year 1980-81 at the procurement price, 2000 quintals of rice or in the alternative 40 % of each variety of the rice produced or manufactured in the Mill every day. The kharif year 1980-81 has been defined to mean commencing on 1-11-1980 and ending on 31-10-1981. The procurement price has been defined to mean the price specified in the schedule of the said procure-
merit Order in respect of paddy and rice. In respect of wholesale dealers it enjoins to deliver 25% of total quantity of paddy and rice of each variety held in stock on the date of the commencement of the Procurement Order and, thereafter, 25% of the total quantity of each of the varieties of paddy and rice purchased by him for sale every day, in alternative to sell 1000 quintals at Procurement price.
8. I may point out at the outset that no formal order of the Central Government giving concurrence to the Procurement order in question has been produced on behalf of the State. They rely for compliance of the requirement of this condition on different correspondence between the State Government and the Central Government. On behalf of the petitioner it was urged that the order granting concurrence by the Central Government is an exercise of the executive power and any such order will be deemed to be a Government order which must be made in accordance with the requirement of [SECTION] of the [ACT], i. e., it should be executed in the name of the President and should be authenticated in a manner specified in the Rules which have been made by the President. As such, there is no question of gathering the said order of concurrence from different correspondence between the Central Government and the State Government. It was further submitted that even if it was permissible to ascertain an order of concurrence on basis of those correspondence in the facts and circumstances of the present case it cannot be held that the Central Government had concurred to the different terms of the Procurement Order or had any occasion to apply its mind to the different terms thereof.
9. No doubt, if an order is to be held as an order of the Central Government or the State Government, it should be made and authenticated in accordance with the requirement of [SECTION] or [SECTION] of the [ACT]. Reference in this connection may be made to the well known case of [PRECEDENT] and [PRECEDENT]. [PRECEDENT]. Once such orders are not made in accordance with the requirements of the aforesaid Articles, the State cannot claim immunity from challenge and when such orders are challenged on any ground whatsoever then the State has to satisfy that they were passed or made in accordance with the requirements of law. In the case of [PRECEDENT], it was observed (at p. 185) :
"Strict compliance with the requirements of [SECTION] gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State."
10. But the question is as to whether an order of the Central Government granting concurrence to the proposed procurement Order will be deemed to be an order within the meaning of [SECTION] of the [ACT]. It cannot be denied that in process of issuing a Government order several other orders are passed and all such orders cannot be held to be orders within the meaning of [SECTION] or [SECTION] of the [ACT] so that each one of them has to be made and authenticated as required by the aforesaid Articles. It is the ultimate decision of the State Government which has to be made and authenticated in accordance with the said Article, in my view, an order granting concurrence by the Central Government is an order which has to be passed by the Central Government in process of making of the Procurement Order and it is really the procurement order which is the Order within the meaning of the aforesaid [SECTION] or [SECTION] which has to be made and authenticated in accordance with the said provisions. As such, I am not inclined to accept the contention made on behalf of the petitioner that the order of concurrence must be authenticated in accordance with [SECTION] of the [ACT].
11. But then even if it is held that the order of concurrence need not have been authenticated in the manner prescribed by [SECTION], still it has to be established on behalf of the State that, in fact, such order of concurrence was passed by the Central Government before the Procurement Order was made. On behalf of the State in support of the contention that the Procurement Order was issued only after obtaining concurrence from the Central Government, reliance was placed on a letter dated 16-10-1980 issued by the Deputy Secretary to the Government of India to all the State Governments. In the said letter guidelines of "the Procurement and Pricing Policy for Kharif Cereals for 1980-81" have been given. It was also mentioned in that letter that the Government of India have fixed the procurement price of common variety of paddy at Rs. 105/- per quintal for the year 1980-81. It was further mentioned that the States may fix the levy percentage of rice on millers at a level which may bring in larger quantities of rice out of which the States could retain stocks for meeting their requirements, and ultimately it directed the State Governments, including the State of Bihar, that Draft levy orders on rice and proposals for modifications in the existing orders to implement the above policy may kindly be sent to this Department urgently for the concurrence of the Central Government. A copy of this letter is Annexure-B to the counter-affidavit filed on behalf of the State. Then it has been stated in the affidavit filed on behalf of the State that on 22-10-1980 the Food Commissioner, Bihar sent a teleprinter message to Shri [ENTITY], the Joint Secretary to the Government of India, Ministry of Food and Agriculture, informing him the State Government's proposal to impose levy over the rice mills at the rate of 40% of their production of each variety of rice produced or manufactured each day, and over the wholesalers at the rate of 25% of the total quantity of paddy and rice of each variety held in stock. It was further communicated to the Central Government that the State Government proposed to allow compounding at the rate of 1500 quintals and 750 quintals, respectively, for millers and wholesale dealers. The Food Commissioner has further stated that he received a telephonic communication from the Central Government on 27-10-1980 which was followed by a telex message of the same late, relevant portion whereof is as follows :
"Central Government concurs in your proposal to impose levy at 40 per cent and 25 percent on rice millers and wholesalers respectively subject to the condition that compounding shall be at the rate of three thousand quintals for rice mills and one thousand and five hundred quintals for wholesalers." A copy of the aforesaid telex message is Annexure-B/1 to the counter-affidavit tiled on behalf of the State. It has been stated that after the receipt of the telephonic message aforesaid on 27-10-1980, the proposed procurement order along with the memorandum was placed before the Council of Ministers in its meeting held on 27-10-1980. In that memorandum it was pointed out that concurrence of the Government of India was awaited in respect of the procurement price of the rice. The Cabinet approved the memorandum with modification that the compounding rate for rice millers should be 2000 quintals instead of 3000 quintals as suggested by the Central Government and for the wholesalers 1000 quintals instead of 1500 quintals. The Food Commissioner has further stated that the proposed levy order was not finally made, as the Central Government's approval with regard to the price of Rice under levy order was awaited. Thereafter, a telex message was sent on 24-11-1980. In that telex message the Central Government was informed that the State Government has decided to impose levy at the rate of 40% on rice mill and 25% on wholesale dealers, but in case of compounding it has been fixed at 2000 quintals and 1000 quintals, respectively. In the said telex message it was further stated that the order was not being issued because concurrence in respect of price of the rice was awaited for which several teleprinter messages had been sent. Ultimately on 3-12-1980, according to the statement of the Food Commissioner, he contacted Shri [ENTITY], Joint Secretary, Ministry of Agriculture and Food, Government of India on telephone and sought concurrence of the Central Government with regard to the proposed fixation of procurement price of rice at Rs. 179/-per quintal for common variety, Rupees 185/- per quintal for fine variety and Rs. 192/- per quintal for superfine variety of rice. On telephone concurrence was also sought for in respect of the rate of the compounding with millers and wholesalers and the Central Government was informed that other terms of the Procurement Order shall be same as it was in the year 1978. According to the Food Commissioner, on the same day, i.e. 3-12-1980, Shri [ENTITY], the Joint Secretary aforesaid telephonically conveyed to him the concurrence of the Central Government with regard to the proposed fixation of procurement price of rice, scale of compounding with rice millers/wholesalers as approved by the Bihar Cabinet as well as in respect of the proposal that other clauses of the [ACT] be continued and incorporated in the new Order. After the aforesaid concurrence, which was conveyed through telephonic message, according to the Food Commissioner, the proposed Procurement Order was submitted before the Food Minister for approval and on 9-12-1980 the said order was made and a copy thereof was sent to the Superintendent, Secretariate Press, Gulzarbagh, Bihar, to publish the same in an extraordinary issue of the Bihar Gazette on 9-12-1980. It is further the case of the State that when a dispute was raised as to whether the procurement order had been made with prior concurrence of the Central Government the Food Commissioner informed aforesaid Shri [ENTITY], the Joint Secretary on 9-3-1981 that although the Central Government's concurrence was conveyed to the State Government on telephone by him the fact of concurrence is being disputed. On that Shri [ENTITY] said that he was sending a letter confirming the telephonic concurrence on 3-12-1980. Shri [ENTITY] addressed a letter dated 16-3-1981 to the Food Commissioner saying, I confirm that on the 3rd December, 1980 the Central Government's concurrence was conveyed to you on phone. It may be pointed out that the present writ application was admitted on 23-2-1981, as such, the aforesaid letter of confirmation dated 16-3-1981 was received during the pendency of the writ application. A copy of the said letter is Annexure-C to the supplementary counter-affidavit filed on behalf of the State of Bihar on 2-4-1981.
12. Now taking all the correspondences and statements, referred to above, into consideration it emerges that on 16-10-1980 the Central Government fixed price of paddy and conveyed it to the State Government. Then by telex dated 27-10-1980 the Central Government agreed with the State Government to impose levy at the rate of 40% and 25% on millers and wholesalers, respectively. So far as the fixation of procurement price of the rice and rate of the compounding agreement and other terms and conditions of the Order are concerned, it rests on the telephonic conversation between Shri [ENTITY] and Shri [ENTITY], the Food Commissioner, on 3-12-1980, which is supported by a letter of confirmation dated 16-3-1981.
13. Now the question is as to whether under the circumstances mentioned above it can be held that the Procurement Order has been made after obtaining prior concurrence of the Central Government. In view of [SECTION] of the [ACT] the executive power of the Union is vested in the President which can be exercised by him either directly or through officers subordinate to him. In view of [SECTION] of the [ACT] the President has to make rules for more convenient transactions of the business of the Government of India and for allocations amongst Ministers of the said business. In exercise of this power, [ACT], [PRECEDENT], have been framed where different authorities have been vested with the power to take executive action. On behalf of the petitioner it was contended that there was no material on the record to show that Shri [ENTITY] under the relevant rules of business could grant concurrence on behalf of the Central Government. But, even if it was assumed that he had been vested with such a power, the fact remains that no order granting such concurrence in respect of the Procurement Order in question which was an exercise of statutory power, has been produced on behalf of the respondents. Such order need not be made and authenticated in accordance with [SECTION], still, in my view, it is difficult to hold that such order even need not be in writing. Learned Additional Advocate General appearing for the State submit-
ted that he is not in a position to state whether any such order of the Central Government granting concurrence has been recorded on any file of the Central Government or of the State Government. Prior concurrence is one of the conditions prescribed under the orders of delegation which has to be complied with in view of [SECTION] of the Act. Whenever Central Government or the State Government exercises a statutory power or an executive power it has to be exercised in accordance with the well settled norms, and when sanctity of such actions or orders is challenged, then it is not enough to contend that the requirements have been complied with orally. If it is held that a power which has to be exercised under a Statute can be exercised orally as well it will lead to devastating results in many cases. If the State had established the fact about existence of such an order of concurrence, then communication thereof on telephone might have been condoned, but where the existence itself is in doubt, any oral communication will not cure the infirmity in making the Procurement Order in question. It is relevant to point out in this connection that in the Procurement Order there is no mention of having obtained prior concurrence of the Central Government. In past whenever such Procurement Orders had been made this fact was mentioned in the Procurement Order itself.
14. Learned Additional Advocate-General faintly contended that the Court should presume about the regularity of the official acts. This is a re-buttable presumption. When the main ground of attack throughout has been about the existence of an order of concurrence by the Central Government, it 5s futile on the part of the State Government to take shelter of presumption regarding the official act. In this connection, it may be pointed out that Shri [ENTITY], the Food Commissioner, has stated in his affidavit that he informed Sri [ENTITY] that the factum of concurrence was being disputed. Even then, the alleged order of concurrence of the Central Government to the Procurement Order in question has not been produced, and plea of concurrence is based on telephonic conversation. The Supreme Court in the case of Biren Dutta v.
Chief Commissioner of Tripura (AIR 1965 SC 596) in connection with [SECTION] of the [ACT] observed that whatever may be said regarding complying with [SECTION] of the [ACT] while making such order the decision to continue the detention of the detenu should be recorded in writing. Similarly, this Court in the case of [PRECEDENT] rejected a plea of implied sanction before an appointment is made to a public office under the relevant Act. In my view, if the Central Government had passed any order of concurrence in respect of the Procurement Order in question in writing even on any file of the Central Government, it should have been produced, especially when the communication of that order before issuance of the Procurement Order is oral and the fact of taking prior concurrence has not been mentioned in the Procurement Order itself. In each of the Procurement Orders made in the years 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977 and 1978, at the beginning, it had been mentioned that prior concurrence of the Central Government had been taken. In my opinion, on the materials on record it is difficult to hold that before the Procurement Order was made Central Government's concurrence had been obtained which was one of the conditions of delegation as well as the requirement of [SECTION] as amended by [ACT]. The result will be that it has to be held that the Procurement Order having been made without prior concurrence of the Central Government is invalid and ultra vires.
15. In view of my findings above, there is no necessity of deciding the effect of non-publication of the Procurement Order in the Official Gazette, no sooner the Order was made. At the hearing it was almost an admitted position that the procurement order was made on 9-12-1980, but the extraordinary Gazette dated 9-12-1980 was actually published on 26-2-1981. According to the affidavit of the Food Commissioner, a copy of that Order was sent for publication to the Secretariat Press, Gulzarbagh on 9-12-1980 itself, perhaps, due to lapse on the part of the authorities of the Press this could not be published till 26-2-1981. This is a matter of concern for the State Government and it is expected that the matter is enquired into and the persons responsible for the delay are identified.
16. In the result, this writ application is allowed and the notices which have been issued to the petitioner demanding levy in respect of rice and threatening legal actions are quashed. In the circumstances of the case, there will be no order as to costs.
[ENTITY], J.
17. I agree.