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RAM CHANDRA MAWA LAL AND OTHERS ETC.

STATE OF UITAR PRADESH ANJ? OTHERS ETC.

January 9, 1984

[S. MURTAZA FAZA)'., Au, A. VARADA.RAJAN AND M.P. THAKKAR. JJ.]

Defence of India Rules, 1971 pro111ulgated under'De}ence of Jncli~ Act. 1971- Rllle 114-Inrerpretation of-Wh6ther State Govern111e11t can fix price of Im article declared to be essential c; ornn1odity under the Essential Conunodities Act, 1955 in , respect of which Central Government has alrearlv fixed priee under Fertilizer (Control)' Ofcler, 1957 pron111Jftated under the Essen; ial Co1111nodities Act, /955.

Defence of flu/ia Rules, 1971-Rule 114 (3) (h)-Scope <~/'-Expression •any' article-includes fertilize_rs.

Interpretation-Rule of-What is test for ascertaining whethe;. conflict between.

Central and State statf/tes irreconcilale . .

Uttar .Pradesh Fertilizer Prices (S11pple1nentary) Order, 1974-Validity of

On ()ctober 11, 1973, the Central Govenuncnt in en.:'ise of power under

cl. (3) of the Fertilizers (Control) Order, 1957 pron1ulgated under s. 3 of the Essential Commoditic5 Act, 1955; issued a notification fixing the maximun1 retail selling price of certain fertilizer \vhich de'alers t:ould charge from consu1ners leaving with the dealers a ve, y .low margin of profit.

S1nnc time later in order to con1pcnsate the manufacturers for the higher cost of inputs, the Central Governn1ent issued another notification on June J, 197 4 fixing a very high retail selling price of the fertilizer to be charged by the dealers fro111 the consumers.

The dealers Started charging the higher price fixed by notification dated June I, 1974 even for the stcks of fertilizer acquired by them prior to June 1, 1974 at the lower rate thus earning fabulous profit.

Qn June l t, 1974 the State of Uttar Pradesh issued a notification-(Uttar Pradesh Fartilizcr Prices (Supplen1entary) Order, 1974) in exercise of power under rule.114 of the Defence of India Rules, 1971 promulgated under the Defence of India Act, 1971. This notification stated that the st0cks of fertilizer acqu1red upto May 31,1974 .PY 'the dealers and which remt:iincd unsold with them should be sold only at the.price fixed by the Central Govcrn1nent's notification dated October I J, 1973 and not by notification of June l, 1974. The appellant<; (dealers) challenged before the Hit; h Court the legality and validity of the Staie Governn1ent's notification dated June 14, 197 4 on the grounds: (I) that the fertilizer in qu'eStion having been declared an essential commodity under the Essential Co1ninodities Act, 1955, an Act specia-I!y enacted inter alia for regulating!prices of essential comn1odities, its price . could be regulated only under that Act and not under the Defence of India Rules;

(2) that the notification being inconsi5tcnt with the Central <!overninent's notification dated June l 1974 was invalid; and (3) that the notification being discriminatory was violativ~ of Art. 14 of the C0nstiiution .. The High Court upheld the

RAMCHANDRA MA\VALAL V, U. P. STATE

~ \'.alidityof the impugned notification and dis1nissed the writ petitions.

~;1ppeals. ·

Disn1issing the appeals by 1najority,

HELD: .. (Per Mu:taza.Fazal Ali and Thakkar, JJ.)

Hence.the.'$C

Both the Essential Con1111oditirs Act. 195?', as slso the Defence of India Rules of !971, are Central legislation:5 enacted b) the Parliament. There i.!I no

onst1tutional or jurisprudential limitation on. th~ c.on1petcnce of the Parlian1ent to reate two avenues or sources of power for the regulation of prices of articles. (fince ParJian1ent cin constitutionally Jnd validly enact two statutes creating two • sources of power, and since, under both the statutes prices of fertilizers c.in be

~ . n; gulated, there is no illegality in acting under 'either or 'both'. [357 DEJ

Under the DIR poer has been conferred, inter a/ia. to fcqulale the price of'any.' article. The expression any article' is wide enough in its mplitude to

lilt.. , envelope 'fertilizers'. The fact that 'fertilizers' have been declared .as an

essential commodity under the Essential Con1n1odities_ Act, .1955 and its price

can be reguhitcd under the powers conferred by that Act, iS altogether in1material. f357 H; 3~8 A]

The Centre and the State both cannot speak on the sa1ne cbannel and create disharmony..

If both speak, the voice of the Centro will drown the voice of the State. The State has to re.n1ain silent' or it will be •silenCc<l'.

But the State has the right to 'speak' and can 'speak' (with unquestionable authority)

where. the Centre is 'silent', without introducing disharmony. If the Ceqtre sits only on a portiOn of the Chair, the State can sit on the rest of the portion with

arn1s throWn on the shoulders of each other.

While the Sfate cannot sit .on the E lap or on the shoulders of the Centre, both can certainly walk handin-hand,

~\_ending support to each other, 1n a friendly nlanner, towards the sa1ne destina- , tion. If the Centre has buil_t a wall, <>nd has, left a gap from which intruders • can infiltrate, the State can fiJ(1he gap in the wall, and thus make its own contribution to the common cause. What is inore, each in theory? nU pdnciPle must be presumed to be conscious of the need for accord and need for • cornmodating each other in.the interst of •NATIONAL HARMONY'. [360CF] F

A general statute applies to all persons . and localities w.ithin its_ jurisdl\:·

1. tional scope, prescribing the governing. law upo_n the subject it encompasSes, Unless a special statute exists to treat a refinement of the subject with particularity or to prescribe '1 different law for, a particular localit)r.

Where, however, the later spedal or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coterminous operation, the general G

~ statute will not be repealed, bat the special vr local statute Will exist as an exception to its terms. [361 BC]

Suthtrland's Statutory Construction, 3rd Edition. Vol, L Page 488, referred to.

One of the tests forascertaining whether the inconsistency is an irreconcila- H ble or intolerable ?Ile, is to pose tis question: Can the State law he obeyed or

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respecteCt without flouting or violating the Central law in letter and spirit? If 'the answer is in t!1e affinnatic, the State Jaw cannot be invaliatcd. .Not at any rate when ihe State law merely 'pro1notes' the real object of both the laws, and is in the real sense 'supplementary• or 'coinplernentary' to the Central law.

[361 G-H; 362 AJ

In the present case, the Central notification is altogethCr silent on the ramification regarding sales from out of existing stocks acquired by the dealers a"t lower rates. The impugned State notificatio'n, oh. the other hand, deals exclusiVely 'with this aspct. The State notificatiOn speaks on a.refinem'ent of tht subject about which the Centra) notification is blissfully unaware and on which it is altogether silent. Both notifications can therefore safely be construed as supplen1entary and friendly rather than inconsistent or hostile. [360 B-C] •

Ill the instant case, assumii1g that there is inconsistency between the Central Goverllment's notification and that of the State Government, it does not appear to 1, Je an irreconcilable or intolerable one, so as t6 invalidate .the Stite Govcrnm.erit's notification. In the Prcserit case the test, answers in favour of the validity of the impugned State notification. The Cci1tral notification is not violated if the dealers sell the fertilizers from out of the existing stocks acquired . at the lower rates, for both the notifications fix the minimum seJlin8 price and the maximum , selling price fixed under the State notification is not highCr than that fixed under the Centfal.notific3.tion. What is n1ore, the State notification 'promotes and serves' the object and purpose of bO.th the Centre and the state. 'Prorqotes and serves' in th~ sense, that the 1nanifest object of fixing maxin1u1n ceiling Price is to make available to the cultivators who grow 'the food for the NATION to obtain the inputs at reasonable. prices and to protect thein from exploitation so that the food production is not retarded. [362 A-C]

Art..254(2) does not envision Presidential assent . to 'notifialions' issued' under an Act (as distinguished fron1 'laws made.by legislature'). [363 F]

Kera/a State E/ect1fcity Board~. Indian Alu111iniun1 Co. t19?°6] 1 S.C.C. 466 at p, 478, referred to ..

The impugned notification is nOt violative of Art. 14 Of the Consthution since the vry basis of the challenge on the score of hostile discrimination is F' found to be non-existent.[ 364 DJ

(Per Vareiarajan J. dissenting)

It cannbt be assumed that Parliament which had already legislated in the Essential Commodities ACt, 1955, a permanent measure, in respect of fertilizer . intertdect to legislate once again and could have felt the need to le&islatC once aeaJn in the temporary Defence of India Act, 1971 in respect of the same article, cspecialJy because what could be done under the Defence of India Act and the Rules which. niay be framed thereun.der could as well be done with 'equal force under the Essential Commod'i"ties Act and order's which may be passed thereupder. [377 B-C]

Section 3(2) of the Essential Commodities Act lays down. that the Central Government may, havin'g regard. to the local conditions of any area and other relevant circumstances, fix different prices or rate~ in respect of d'!trerent areas

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•RAMCHANDRA MAWALAL I'. U. P. STATE 351

and-for difl'erent classes of consumers. The' State- Government could have reqaested the Central G, overnment to act under s.3(2) of ihe Essential Con1modities Act and fix a different price or rate for the sale by dealers in that State of fertilizer carried over fron1 the stock held. on 31.5.1974. Section 5(b) of the Essential Commodities Act provides for delegation of powers and says that the Central Government may, by

0 notified order, direct that th_e power to make or issue notifications under s.3 of that Act shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction be exercisaJ>le also by such State or such otTicer or authority . subordinate -to a Sta.tc Government as n1ay be specified in the direction. The Central Government has not sslled any direction under s.S(b) of the Essential Co!Dmodities Act delegating hs power to issue notification.under s.3 of that Act to.the State Government or any officer or aut.hority 0 fthat Government. The State Gover11n1ent has thus not' resorted to the Provisions contained in s.3(2) or s.S(b) of the Essential Comn1oditics Act, but has proceeded to fix the price of fertilizer on its own under the Defence of India Rules, 1971 which it cannot do under those Rules and the Defence of India Act, 1971 in respect of the essei1tial commodity. [377 H; 378 A-D]

The Defence of India Act, J971, which was a general and temporary• ACt, and the Rules framed thereunder cannot apply to fertilizer which is an essential commodity governed by the Essential Co1nmodities Act, 1955 and the Fertilizer (Control) Order, 1957 made under the provisions of that Act. Therefore,· the .State Government canriot without delegation issue any notifi.cation under the

D, efence of India ct and Rules, 1971 in regard to the price of - fertilizer, an essential commodity governed by the EssefJ.tial Commodities Act and the Fertilizer (Control) Order, 1957. [378 H; 379 A-BJ

There des not appear tO be any provision in Art. ~4(2) of the Cpnstitution for placing any notification made by a State Government under thC Defeace of India Rules, 1971 for conSiderafion by the President. [380 C] ·

If the Stat~ Government's impugned notifiyation is assumed to be a law enacted b.Y that State's Legislature on Entfy 26 of List II, since the Act of Parliament passed on Entry 33 of List III and the Fertilizer (Control) Order, 1957 passed under that Act were already in force,-the assent of the President had to be received in order that the State Government's notification assumed to be~ a law enacted by the State's Legislature may prevail in the State as required by Article 254(2) of. the Constitution. There is nohing on record to show that the in1pugned notification of the State Governmen, t Was placed before the President" for his assent and that hi's assent has been received. Therefore, the State Govern~ meat's impugned notification even. as a law cannot prevail over the ear1ilir n.o!iftcation of the Central G?vernment. [389 F-G; 380 CJ .

Zaverbhai Amaidas v. State of Brnnbay, (1955] 1 SCR 799, referred to. . . .

There is a clear conflict be"twcen the two notifications is respect of the same essential commodity, fertilizer, for under the Central Goverllment's notification dated I.6.1974 the price at which' a dealer can seH fertiiizer of the conCerned variety is Rs. 2000 per ton whil~ .under the Staie Government's notification dated 14.6.1974 is only Rs.1050 per ton though no doubt it is restticted to the stock carried over from 31,5.1974 which is in1material in judging the power of the State Oover.nment to fix the price of an essential commodity by a notification

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made under.the Defence of India Rt; les, ~197 J in respect of which th; Central Government hact already fixed the price urilier the Fertilizer (Control) Order.

1951. Once the Central enact1nent and the Central Oovernn1ent's notification

goern the price of an essential cotUinodity the State Gove'fn1nent's notification issued in exerci1; e of the clelega'ed authority under the Defence of ldia Act and the Rules framed thereunder cannnt preVaiJ. [380 F-H]

The two enact1nents have to be read in such a way that there is no conflict between them while giving effect to them in their respective fields of operation. If the Essential Cun1moditics Act; 1955 and tlle Fertilizer (Control)

Order, 1957 are considered to apply exclusively to fertilizer, an essential commodity, and the Defence of India Act, 1971 and the Defence of India Rules, 1971 are considered to apply to other co~1111odities excluding essential co1n nlodities there \Vould be no conflict whatsoever between - the Essential Con1modities Act and the Defence of India - Act and between the notification issued under Fertilizer (Control) Order, 1957 and the Defence of India Rules,

1971. [381 A;. 383 D-E]

The author of the two enactments, Essential Con1modities Act, 1955 anct Defence ofTndia Act, 1971 is the san1e, na1ncly, Parlia1nent; and Parliament 1nust be held to have not intended to contradict itself while dealing with distinct matters or situations under those enactn1ents. [f the State .Governments are free to fix: their own prices iri notiflcationS issued by then1 under the Defence of Tndia Rnles, 1971 when the Central Govenunent's notification fixing asingle price for the \vhoie country in respec~ 'or an essential co1nn1odity is in force that notification of. the Central Oovern1nent will beco1nc otiose. The question is whether.Parliament would have intended such' a conSequence. The. answer can only be an emphatic no. [382 D-E]

Craies on Statute Law (seventh edition) at Page 222 and Maxwell on..,, the

fntepretation of Statutes, referred to.

\Vhat has been done by the State Qovernn1ent under the i1npugncd notification is utterly lacking in power and cannot be allowed to stand merely because it r, elates only to a co1nparatively small quantity of fertilizer carried over fron1 the stock of 31.5.1974 and was intended to benefit and protect agi-icultural consumers and p.revent dealers fro1n 1naking .. undue profits. [384 F] . . .

CIVlL APPELLATE JURlSDICTION: CivilAppeaI Nos. 1568-76, 1609-!2,

1656, 1672. 1675-80, 1707. 1616, 1644, 1645. 1646, J671, 1673, 1708 of

1974. •

From the Judgment and Order dated 14th August & l.:lth September, !974 of the 'Allahabad High Court in Civil Writ Petition.

Nos. 34122, 3498, 3430, 346.:l, 3491, 3429, 3427, 3423, 3472, 3443, 3473, 3474, 3494, 3439, 788, 774, 786, 787, 791, 793, 869, 3428. 3502, 3420, 3421, 3528, 3478, 3477, & 3478 of 1974. •

Yogeshwar Prashad,

S. C.

Manchanda,

S. K.

Bagga,

RAMCHANDRA MAWALAL v. u. P. STATE (Thakk!!r, J.) 353 ' Pramod Swarup, 0. P. Agarwal, Ms. Baby Krishnan G.S. Chatter; ce.

A ..f Mrs. S. Dikshit, R.N. Tri1w/i & Miss R. Govind for the Appellants.

The following Judgments were delicred •· THAKKAR, J.. The Cortstitution which promises a socialistic pattern of Society in the preamble and traces. the contours of the socialistic philosophy which permeates the spirit of the Constitution, Can neither com1nand nof commend the.exercise of the Constituticnal Jurisdiction to issue HIGH PREROGATIVE WRITS under Art. 32, 226 or 227, in order not to remove injustice. but to do injustice, i.n order not to prevent exploitation of the poor by the rich. but to permit such exploitation. And yet the CONSTITUTIONAL JURISDJC- T!ON of the Court (as polar:zed from its 'ERROR JURISDICTION'

has been invoked in order to use the hand of the Court for transferring money from the pockets of poor cultivators (who feed the Nation) to the pockets of tlie dealers in fertilizers (who feed .themselves) by challenging a notification on technical gro1;1nds.

Such jurisdiction is invoked to enable the 'dealers' to reap , a 'rich' harvest of 'unjust enrich1ncnt' tluough the instrumentality of the Court at the cost and expense of the cultivators.

We firmly believe that the Court exercising CONSTITUTIONAL JURISDICTION is not obliged to grant a writ in such circumstances. But we need not . elaborate on the theme furthermore as the High Court has rejected the p::tition on merits and as we are of th~ san1e opinion. ·

Events leading to the institution of the Writ Petitions under •Article 2)6 of the Constitution of India giving rise to this group of appeals (by certificate of fitness granted by the Allahabad High Court)

have l"iken the follow; ng course :

(i) On October 11, 1973 the Central Government issued a notification fixing the maximum retail selling price of certain varieties of fertilizers to the consumers. It was issued in exercise of powers under clause (3) of the Fertilizer (Control) Order of 1957 promulgated under

Section 3 of the Essential Commodities Act of 1955 (referred to as 'Act' hereinafter).

(ii) Some time later, on June I, 1974, the Central Government issued a Notification whereby the maximum retail selling price of different varieties of fetilizers was steeply revised upwards in or<le; to compensate the 'rnanufacturers' in the context of the spurt in the prices of various inputs. The extent of the rise may be illustrated by . taking the instance of 'Urea 46% Nitrogen'. Its price was revised upwards from Rs. 1090 per ton to Rs. ~000 per ton.

B . (iii) O~ June 14, 1974 the State of tJttar Pradesh issued the Uttar Pradesh Fertilizer Prices (Supplementary) Order,

1974 in exercise of the powers conferred by Rule 114 of the Defence of India Rules, 1'>71, . adverted to as . 'D, I.R.'-hereinafter. Under this notification the registered 'dealers' were prohibited froin charging to the cul~ C tivators price in excess of .the maximum price prevailing immediately prior to the upward revision authorised by the Central Government on June' I, 1974, in respect of stocks acquired at pre:revision .rates held .by the dealers on the eve of the upward rvision of prices.

(iv) The net result of the two last menli, oned notifications was as follows ; The dealers could sell to the cultivators

fctili'zers at the higher rates authorised by the notifica- .tion dated June I, !974 from out of the stocks acquired ·

thereafter under both the notifications. As regard~,' the stocks acquired after June I, 1974 the.registered dealers were not affected by the notification issued by the State Government under the DIR inasmuch as the notification issued by the Central Government authorising the upward revision remained unaffected by the notification issued by the State. The dealers however could not sell the fertilizers at the higher rates from out of the existing stock acquired by them at the /owe; rates imme- . diatcly prior to the upward.revision effected on June' I, 1974, in view of the aforesaid notification issued by the State Government on June 14, 1974. Taking the ins- . tancc of •Urea 46 % Nitrogen' the net impact of the impugned State notification 'Was that the 'dealers' were not permitted to charge to the cultivators Rs. 2000 per , ton instead of Rs. 1090 per ton in. respect of st9cks

acquired at the lower rates.

(v) It was in this backgronnd that the dealers instituted the petitions giving rise to the present appeals by certificate, challenging the legality and validity of the

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RAMCBANDRA MAWALAL v. u. P. STATE (Thakkar, J.) 355

i mpgned notification issued by the State Government A on June 14, 1974.

Now; the follqwing facts are not in dispute :

(i) The registered 'deaiers' were entitled to a fixed profit margin of Rs, 45 per ton (and no more) under the terms B and conditions of the licence held by them.

(ii) The stocks acquired prior to .June I, .1974 were meant for sale to the cultivators at. the pre-upward revision rates at whiCh rates ihe dealers had acquired the stocks.

This stock had ·remained unsold with the dealers till then because the cultivatorshd not been a'ble to effect their purchases till that date. ·

(iii) The price rise was authorised to compensate the 'manufacturers'. in the context of the spurt in the price of

 various 'inputs' and had no bearing on the selling price D for the 'dealers' who werenot concerned ith the cost of production.

(iv) In case the State Government had not issued the impugned notification dated June 14, J974, the dealers would have been enabled to charge about twice the prices at which the stocks were made available to them for sale prior- .to the notification. For instance, 'Urea 46 % Nitrogen' made available to the dealers for effecting sales to the cultivator~ _at , Rs. 1090 per ton could have ·

been sold to the cultivators at Rs. :2000 per ton. Thus they would have been enabled to make a wind fall bum• per profit of Rs. 910 per ton (in respect of 'Urea 46 % Nitrogen') as against permitted profit margin of Rs. 45' per ton (i.e. about 1000 % in place of about 5 %) and to secure 'unjust enrichment'. for themselves to such . an unconscionable C)\tent at the cost of the cultivators.

It is in the backdrop of these undisputed facts that the, question regarding the validity of the impugned notification dated June 14, 1974 issued by the State of Uttar Pradesh came to be challenged before the High Court of Allahabad.

The impugned.notification was issned in.order to meet a problem

A which arose in the peculiar facts and circumstances of the situation.

The problem arose apparently . because the competent authority exercising the powers of the Central Government under the Essential Commodities Act overloke~ that the dealers who were concerned with the distribution of the fertilizers to the cultivators, on a fixed and assured profit margin of Rs. 45 per ton: would be having with B them 'stook-in-trade obtained at the pre-enhancement prices.

And that they, might tako. undue advantage of the situation by charging a higher rate .to the consumers even in respect of the stocks acquired at the lower rates. The dealers could and should have sold the stockin-trade acquired at .the pre-enhancement price at the hitherto prevailing rates till the o:d stocks were exhausted. That is what would C have been expected of them, having regard to the fact that they were getting a fixed and assured margin of profit of Rs. 45/- per ton .and that the enhancement of the price was. necessitated and made solely, to neutralize the rise in the. cost of the inputs, which phenomenon affected only the 'manufacturers' and .not , the 'dealers'. There was therefore no occasion o.r justification on their part for charging a D . higher price to the consumers in regard to the sales effected from the existing stocks acq.uired at the lower rates. The notification issued by the Central Government on June. I, 1974 was si/el/f on the question o(selling prices in respect of sales from out of stocks acquired earlier at , the !owe( rate.

Since the said notification issued by the Central Government was silent, the State Government, which appears to E have been more vigilant,' stepped .in and exercised powers which were conferred on it by the DIR.

The challenge before the High Court .was made 011 thre~ main grounds, viz:,

(Al The Central -Government having issued a notification in exercise of powers under the Essential Commodities Act, 1955, the State Government could not have issued the_ impugned oiification under the Uttar Pradesh Fertilizer Prices (Supplementary) Order, 1974 issued in exercise of the powers conferred under Rule 114 of the 'D.l.R.". The power to . fix the maximum price iri respect of fertilizers could be exercised only under the Essential Commodities Act, it being a special Act, and could not !)ave .been exercised by the Siate Government,

by issuing an order under the 'D.l.R.'

.(B) Even if the State Government had the 'power to -issue

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RAMCHANDRA MAWALAL v. u. p, STATE ('Thakkar, J.) 357

the notification under the D.T.R., the notification was invalid by reason of its inconsistency with the notification issued by the Central Government on June I, 1974 under the Essenti~I Commodities Act, 1955.

(C) The impugned notification was violative of Article 14

of the Constitution' of India.

The High Court of Allahabad negatived all the three contenticns by an extremely well considered and well reasoned judgment. Tn the present group of appeals by certificate, the original petitioners have reiterated the same contentions before this Court.

Re: G1•ound A : The argument in substance is that Essentir.1 Commodities Act, 1955, is a special Act under which the price relating to a commodity declared to oe an essential commodity can be regulated.

The power to regulate the price in respect of such an essential commodity cannot therefore be exercised under Defence.of India Rules,

1971 or under any other provision of law.

Now, both the Essential Commodities Act, 1955, as also the Defence of '!ridia Rules of 1971, are Central legislations enacted by the Parliament. The 'D.T.R.: were brought into force by the Parliament in 1971 in order to meet an emergency situation. The legislative competence of the Parliament to enact the legislation on the subject in question, namely, fixation of prices of all articles, is not questioned. The Parliament having competence to legislate in regard to the subject has enacted both the legislations, one in 1955, another in 1971. ·

The impugned notification has been issued under the latter statute. The 'D.l.R!.' having been enacted later, it cannot, and it has not been, contended that the doctrine of repeal is attnrcred.

Since there is legislative competence, since the statute is not eclipsed by the doctrine of express or implied repeal,. how can . the power exercised under the valid statute be assailed ? The only argument advanced, a misco.nceived one in our opinion, is, that since the 'Act' deals with essential commodities, and fertilizer has been decliired under the Act as an essential commodity, the power conferred by the 'D.J.R:' cannot be. oxercised in respect of regulation of the price of such a commodity or article. It is not disputed that u.nder the_ DIR power has been conferred, inter-alia, to regulate the price of 'any' article. The expression 'any article' is~ v.1idC enough in its amplit'ude

to envelope 'fertilizers'. The fact that 'fertilizers' have been declared as an essential commodity, and its price can be regulated under the powers conferred by the Act, is altogether immaterial.

There is no constitutional or jurisprudential limitation on the conipetence of the Parliament.to create two avenues or-sources of power for the regulation of prices of articles. There is nothing in principle or precedent to support the proposititin .that two avenues or soucces of

poer ca1inot be validly created. What then is ihe fabric of the challenge ? The only answer offered by the counsel is that the Act is a 'statute specially enacted, inter alia, .for regulation of the prices of

cmmoditics declared to be essential and therefore in respect of such commodities, the power can be exercised only under the Act.. We . are unable to accede to this argument, Since, 'as discussed earlier, Parliament can constitutionally and vaiidity enact two statutes creating 'two sources of power; and since,.· under both the "tatutes prices of , fertilizers can be regulated, there is no ilJegality in acting under 'either' or 'both'. Counsel; however seeks support from the following passage .from craies on statute Law"' :-· .

"Acts of Parliamei1t some times contaiii general enact ments relating to the whole subject-matter of the statute, and also spei:ific and particular enactments relating to certain special matters; and if the general and specific enactments prove to be in any way repugnant to one another, the question will arise, which is to control' the .other? ln Pretty v.

Solly, (1859) 26 Beav.606, 610, Romiily M.R. stated as follows what he considered to be. the rule of construction under such circu1nstances. "The general rules," said he, '\vhicl; t are applicable to particular and general en'actments in statutes are very clear; the only difficulty is in their applica tion. ~The rule iS, thai whenever there is a partictilar enactnzent

and a general enactment in the same .statute, and the latter, taken in its .most comprehensive sense, would over rule the former, the pa'rticularenac(ment must be operative, and the general enuctment must be. taken to affect only .the other parts of the sta/11/e to which it may properly apply."

(Emphasis added)

' It is overlooked that the said passage deals with different pro-

(1) Statute Law ofCraies, 7th Edition, 222

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RAMCHANDRA MAWA)., AL v. u. P. STArE (Thakkar,'J.) 359

visions in the "same'.' statute. That when there is a special provision in the very same statute in regard to a subject matter,· the special provision -of the statute will orc)inarily prevail. in rivalry or competition with the general provision, is a proposition with which there is no quarrel. Btlt then we are not at all concerned with any rivalry . . . between two provisions of the 'same' statute. We arc faced with two enactments by the same legislaiure which create two sources of power to achieve the same purpose. To repeat what has been obser- ved earlier, there is no lega_I bar. tocreating two sourcc-s of po,.ve-r.

And there is_ no authority in pri.nciple or precedent for contending that one source of power Is more valid than the other. Or that the power validly conferred by the same Jegislaturecan be exercised only under one, and not the other, of the two statutes, leaving aside the question of irreconcilable or intolerable inconsistenty. We, therefore, confirm the view of the High Court and repel the challenge.

' .

Rec Groun<I B: The validity of the impugned, notification issued by the State undr the 'DIR' is assailed on the ground that it is inconsistent' with the earlier notification issued by the Centre: As discussed earlier, the Central notification does not 'specifically' deal with the question as regards selling price in respect of sales from the existing stocks acquired by the dealers at the pre-e11ha11ceme11t prices which remained' unsold with them as the cultivators could not effect purchases till then. fn other words the Central notification does not deal with this rami_fication at all. It does not show awareness or' this dimension and is altogether silent on the suhject. The impugned , State notification, issued later, on the other hand, deals, specifically,

pointedly, and solely, with this dimension. lt is in this perspective that the issue has to be judged bearing in mind the undisputed.position that there is no Centre-State conflict inyolved in the sense that (l) the Centre which is not even impleaded as a party, does not question the power of t_he State or the validity of the notification as impinging on its (Centre's) jurisdiction or at1thority; (2) Centre has not asserted its superior authority from the standpoint of Centrc-Statc-powere'quation in Order to supersede the State notificatibn.

The question clamouring for solution in this scenerio has .t', VO facets, viz :

(!) Whether !here is any inconsistency between the Central notification on the one hand and the State notification on the other, and;

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360 SU PREM~ c6URT REPORTS

[1984) 2 S.C.R.

(2) whether the inconsistency is .an irrcconcilabic er intoiern blc

one ..

. ls there inconsistency ?

. The Centra"i notification, as discussed earlier, is altcgether silent on the ramification regarding sales from out of existing stocks acquirrd bY, the dealers at lower rats, The impugned State notification, on the other hand, deals-exdusively with this aspect. The state notification sp, aks on a refinement of the subject about which the Central n(\ti- . . fication is blissfully unaware .and on. which it is altogether >il•nt.

Th.e t\VO do not ov.:rlap.' Ttiere is therefore no ral inconsistency.

The principle may be stated thus. The Centre and the State both ca_nnot spea!i on the same channel and creat~ disharmony. 1 f both speak, the voice of the Cenire will drown the voice of the State. The • State has to remain 'silent' or it will be 'silenced'. But the State

• • I Ins the right to 'speak", and can 'speak' (:vith unquestionabre authori_ty) where the Centre is 'silent,' without intrOducing-dlShar1ncl}y; If the Centre sits only on a p}rtion of the Chair, the State can sit on the

rest' of the portion with. arms thrown on the shoulders of each other.

While the State cannot sit on the lap or.on the shoulders of the Centre, both can certainly walk hand-in-hand lending support lo each other, 'in a frkn"<lly manner, towards .the same destination: , If the Centre has built a wall, and has left. a gap from whic, h _inl, rudcrs can infiltrate, the state can fill the gap in the wall. and thus -make its own C:ontribu- . . tion t_o the Common Cause, What is more, each in theory and principle must be presun1ed' to b~ conscious o'f the need fot accord and nod for accomm-x!ating each other in the into rest of 'NATlONAL

HARMONY'.

'The Centre can object io the State speaking on the same c'l1annel, or sitti1ig on its should'irs, and perhaPs; even overrid'e the State.

But th_B-cntre and the 'State can certinly ci_ccomtnodate_ each othc'r in a friendl.y spirit in the overall NATIONAL INTEREST when both of

lh::1n are trying to supplement each other. fn fhe present case both notifications can s-afely be construed as supplementary and friendly

nther than inconsisterlt or hosti'le .. The Centre does not question th<; authority of tho State, and, evidently". the Centre does net object to the' State SJYaig on the nuance .on which the Centre hC!s_ mtlint3ined

.... silnc~.· There is therefore no real eJemeilt of inconsistency jn the t\.vo . notifications: . The following -passage extracted from Statutory

..;..._.

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'RAMGHANDRA ,\!AWALAL v._u. P. STATE (Thakkar, J.) 361

Constructio.n by .;>utl; erland (para 2022< 1 l,)hows th.at the aspect tela', ting to 'refinement' is a well recognized factor and that the. state law can be treated as an exception when the inconsistency is not irreconcilable':~ ~

, :, A gnenll Statue appiies to a.Ji persons and lora1ities within its jurisdictional scope, prescribing the governing law upon the sUbject it e 11c:::nnpass'.!~,, unless a speciql stlltute exists to treat a refinement of the subject with particularity or to p.resoribca .different law for.a particuJa:r 16cality .. Likewise \Vhere a later statute adaP, ted for a pafticular locality conflicts with a general law of state-wide application, the special or local Jaw will supersede the general enactment. Where, however, the 1ater speial or local statute.·; s not irreconcilable with . the general statute to the .degree th;<! both statutes C.'.lnnot have a ter1ninous operation, te general statute wiJI not, be reRe.aled, but the special or /Ocal stqtute will exist as an cxception to its ternzs. ,, .. (Emphasis added)

Assuming for the , sake of argument that i't is considered to be an incOnsistency, Jt does not apper to be. an irreconcilable or into- 1 :rable ne, SJ as UJ inVal!date it, as will be presently shown.

f.ci the alleke.i inr:onsistency irreconcilableor intolerable.one ?

,: There are dgreesof inconsi.stenc-yin the c_Qntext of conflict of laws. 'Fhec can be apparent or surface inconsistencywhich may be

considr<; d as a n9i\-hosti!e, tQlerable, benign, one, subject to the

unqu~-si::>ned pcnvcr .of the Centre' to override the State if so .mirided. On prii:iciple1 evey apparet inconsitency cannot be presumed to be hostile or intolerable. MJre so when the Centre .does not even raise a 'whisper of discofd. One of the tests for ascertaining whether th:. inc'.)fisistency is an irreconcilable or in.tolrable On~, is to pOse this quostion: Can the. State law be obeyed or respecied without flouting or violating the Cent{al Ja\v in letter.and spirit ? If the answer is in tho .tffirmative, the State law cannot be invalidated:· Not.at any rate when the State law merely 'promotes' the real object of both' the

(1) SUthi:ralnd's. Statutory Construction,

3rd Editic:_n .. Vo!. l; Pa2e 488

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362 SUPREME COURT RBPOR'fS •

(1984] 2 S.C.R.

laws, and is lri the real sense 'supplementary' or 'complementary' to the Central I.aw. In the present case the test answers in favour of the validity of the impugned State notification. The Central notification is not violated if the dealers sell the fertilizers from out of the existing stocks acquired at the lower rates, for both the notifications fix the' maximum selling price and the. maximum selling price fixed under the. State notification is not higher than that fixed under the Central notification. What is more, the state notification 'promoies and serve<' the obiect and purpose of both the Centre and the State. 'Promote' and serves', iff the sense, that the manifest object of fixing maximum ceiling price is to make available to the cultivators who grow the food 1for the NATION to obtain the in.puts at reasonable prices and to protect them from explo.itation so that the food production is not retarded. It is not contended even by the petitioners, for the ery good reason that it is incpable of being so contended, that the object of the price regulation is to enable the dealers to make unconscionable profit. Thus the impl>gned State notification promotes rather than 'defeats', the 'life-aim' of Cetral as also the State notifications. It :i, elps' rather than 'hurts' the objeciives and goals of the centre, and there is no.conflict whatsoever of 'interest', 'purpose', . or 'perspective'. The State has done only that which ihe Centre presumably would have r.eadily done if it was fully aware of the situac. tio.n from all angles of vision.

For, the only impact.of the impugned. notification is that the 'cultivator' for whose protection the price regulation is essentiallv made, is saved fr.om exploitation . without hurting the. legitimate claim .of the dealer, who, in any case, gets bis fixed profit margin of Rs. 45/- per ton.

In Australian Boot Tra.de Bmployees Federation v. Whybrow Co . .'ll the High Court of Australia in.a somewhat similar situation held that there was no inconsistency between a State law fixing a minimum wage for workers in the boot trade of 1$ per hour. and a federal law fixing a minimum wage for the same worlf.ers of l~ $ per hour. Speaking through Barton, J:. the court observed :-

' , "The determinations of the wages boards (in effect the State law} and. the proposed award (in effect, the Commonwealth law) are courched in the affirmative in respect of the material part of each, the provision as to the minimum wage.

None of them prescribed an inflexible rate. The (Stale)

determination~ prescribe a. minimum. and it is in each case

.(I) (1910) C.L.R. VoJ:IO, 266 at 299. ·

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RAMCHANDRA MAWALAL v. u. P. STATE (Thakkar, J.) 363 , lower than tile 'minimum named by. the proposed (Commonwealth) award. By paying the latter minimum . an employer will be obeying both laws. The affirmative words of the'

(Commonwealth) award, therefore, do not "impart a contradiction" between it and the (State) determinations. It . is impossible lo say that the mployer cannot obey the one

without disobeying the other. Therefore, the former and the.

ltter may stand together. Therefore, according to the proper test, they are not inconsistent." ·

(Emphasis added)

It would thus appear that in a somewhat parallel situatioll. the Australian High Court.had taken the view. that sfoce both laws can be. obeyed without disobeying an)', there Is no conflict. In the present case also an endeavour must be made to place a harmonious interpretation hich would avoid•a collision between the two. Another . way o( looking at the problem is. this : The impugned notification, .

though issued by the State, has its source of'power in the 'DIR' which is a Cent£~! Statute enacted. by the Parliainent. The State is merely an instrumeutality for executing the purpose of the Central Act. The impugned notification which is 'later' in point of time must, therefore~ prevail to the extent it 'speaks' on the refinement or nuance of the matter on which nuance the earlier notification is "silent'. In any view of the matter; therefore •. the challenge from

thi• platform cannot succeed.

:..

ft may be mentioned that a half-hearted argument was advanced that Art. 254(2) would be attracted and Preside1itial assent wotllm become necessary in. order to give effect to the impugned notification.

There is no merit in it in as much as Art. 254(2) does iiot' envision

Presidential assent to '1iotifications' issued under an Act (as distinguished from 'laws made by legislature') as has been observed by a . Constitution Bench of this Court in Kerala Siate Bfectricity Board v .

Indian .Aluminium Co.,'i' wherein Alagiriswami, J. speaking for • himslef and for Bhagwati, Goswami and Sarkaria JJ. says :-

"Was it necessary to get the President's assent for this notification as contended by some of the respondents '!

Quite clearly no Presidential assent was possible to the"notification. Article ~54(2) does not conten; plate Presidential .

 (I) [1976] I S.C.C. 466 at 478

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SUPREME COURT REPORTS. [19B4]2sc.R ·.

assent to iwtifilYJtions itsued under th;. Act. The article contemp1ates Preside11tia/- assrnt onli' to lc.11's ad~ bv' the legislature of. a State." This gr.ound of attr.ch. also accordingly fails.

Regarding gr<Jund (C) : The appellants contended that ihc impugned notification was violative of Art. 14 of the Constitution of . India and was t)1erefore invalid. The argument was advanced. on the asumption that the State Government had permitted govcrinen- . tai' ag, ncies falling within the definition of 'dealer' in .the FertiEzer Control Order, 1957 to sell. the stocks held by tlie said agencies immediately preceding the issuance of the im, pugnd. notificat, ion dated June I, 1974 at the h_igher. rates. This allegation has been controverted by the State of Uttar -Pradesh.

A refereTice to the counter-affidavit sworn by the Accounts Officer, Fertilizers and Manuafs Dirccturni~ of Agriculture, field in :C.M.P. No. 6773 of ! 97j clearly shows that the State. Gcjvern1nent had nOt' granted any such pern1issi011.

Thus~ the very basis of the challenge on the score of hostile discrimination is found to be non-e><isten!.

The High CouTt was perfectly jus'tified in rejecting this contention.

We, therefore,' confirm the. view taken by the High Court.

' Thus all the gounds called into aid. by the appellants for challenging the impugned notification are found to be dcvcid of substance.

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U~<ler the circumstances the appeals fail and are disniissed. .), Having regard to the facts and circumstances of the cas.e there will b.., o order regarding cots. · . '

rhe interim orders passed bv this Court are hereby vacated, In the result, the concerned District Magistrate will now have to take appropriate step~ to pass on and pay to the cultivator; the differential amount deposited by the dealers pursuant to this Court's orders dated

September~. 1974, and, Oetober, IO, 1974, as early as possible. And, in any event; within six months of this order: after proper verification~

We order .accordingly.' ·

Appeals dismissed.

Interim orders vacated.

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RAMCHANDRA M., WALAL v. u. P. STATE {Varadarajan, J.) 365

VARAD.~RAJAN, J. Ci.vil"Appal 1656 of 1974 is by special !ave.

The other appeals are by certificate granted by the AHahaba<) High Court. All the app, als arise out of the judgment of a Division Bench

ofthat High Court in a balc)1 of Writ Petitions ouf of which 'W.P ..

NJ. 342l of 1974 was treated as the leading case .. Civil Appeals

1568-1576 of 19.74 and.batch have.arisen out of tha, t batch of Writ P; titions. fn the other set of Civir Appeals another, Writ Petition of 1974 is said to have been treated.as the leading case by the Higl1 Court. The decisions were renC:ered in Writ Petition No. 3421 of

1974.foi one b:ttch and in another Writ Petition of 19'74 for the other batch. But in all the appeals before us, the judgment in !VP. No. 3421 of ]''}74 alone was referred to. ·

The Writ Petitions filed under'.Article 22G of the Co

0 nsliiution . challenged the validity of a notificqtion dated 14'6'~ 974 issued by the Government of Uttar Pradesh in exercise of the power conferred by Rule 114 of the r:iofence of India Rules, 1971, qirecting. that no registered.dealer

0 offerliJizer shall charge or retain. enter into or enforce an)I contract for charging, in respect of any fertilizer sold to any

person on or after 1.6:1974, from any stock held cln 3L5.1974, a prie exceeding the maximum price fixed by the Central Government for the sale of fertilizer under an earlier notification dated I I.JO. J 973 issued .under Clause 3 of the Fertilizer (Control) Order, 1957 made in exercise of the power conferred bys. 3 of the Essential Commodities kot, 1955, as it prevailed on 31-5-1974. The Writ Petitions challenged also an order dated 18.6. 1974 passed by the. Distriq Agriculturnl O:licers directing registered dealers of fertilizers to refund the excess

price charged on the sale of fertilizer effected on or after 1.6.1974 from out of the stock Which was in existence on_3l.5.1974.' The.

Writ Petitions sought the. quashing of the said 'no.tification dated 14.6.1974 and also a direction to the District Agricultural Officers and other District Authorities not to ask' the dealers to refund the excess in respect of sales completed prior to the date of that notification . . The High. Court has, while upholding the. validity of the notification dated .,4 .. 6.1974 nd dismissing the prayer for quash°; ng the same,

directed the District Agricyltural Officers and other District Authorities not to enforce the order .for refuntl of the excess price. ryalized o.n the sale of fertilizer up to 14.6.1974. from the .stocks which were • in existence on 31.5.1974. This part of the High Court's order has become firial and has not been challenged by the State Government. • This Court ha.s. directed by orders dat<; d 2.9.1974 and 30.10.1974' that the excess price charged 0n the sale of fertilizer whi.ch was in the possession .of the appellants. before 1.6'1974 :should be deposited . . ,

D ...

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with the District M1gistratc concerned within a fortnight of the sales, .to rclll'ain in a separate account . .

Tile fertilizer in question is admittedly a commodity controlled under the Fertilizer (Co1; trol) Order, 1957 issued by the Central Governme11t in exercise of th~ power conferred liy s.3 of the Essential Co_mmodities Act, 1955. The.maximum price for sale of fertilizers by registered dealers to consumers is fixed under Clause 3 of .the Fertilizer (Control) Order, 15157 by no.tifications issued from time to tune. The sale price of one of the varieties of fertilizers with which

w~. are concerned in these appeals has been fixed at .Rs:· 1050 per ton by a notification dated 11.10.1973 which was in force on 31.5.1974.

The price fixed in that notification.for the sale of that variety of ferti-· liizer. to rgistered dealers was,; Rs. 1005 per ton leaving a 1nargin of Rs. 45 P"'ton in sale to consumers it Rs. 1050 per ton. The Cent- 1:al Government, ii1 supersession of the notification dated J l.10.1973 fixed the maximum sale price of that variety of fertilizer at Rs. 2000 per ton by a notification datect.1.6.1974;- thus giving an increaes of.

Rs .. 950 per ton for that variety to th(i dealers. The deakrs started scllmg at the new rates fixed in that notification for the several varieties of fertilizers. The Government of Uttar Pradesh being of the view tl1at the Central Government's notificatio11 dated 1.6.1974 was not intended to apply to old stock' procured by delers at consider"ably lower prices from producers which was in existence oi1 31.5.1974, issued the impugned notification dated 14.6.1974 directing that the old stock should be sold at the old rate of Rs'._ 1050 per ton with elfect from 1.6.1974. The Writ Petitions were filed by the dealers, -some of them for quashing the State "Government's notificat.ion 'dated 14.6.1974, some for quashing that notification as also for direi:ting the District Agr, icultural Officers and other District Authorities not to enforce the order me11tioncd above and some for the latter direction alone. .

. The qaestion for consideration by the High Court was the validity of the .State Governme.11t's notification dated 14.6.1914 as regards ihe stock of fertilizer available with the dealers at the end of 31.5.1974, (e., whether that notification will prevail"over tlie Central Govern- ·

mcnt's notification dated 1.6.1974.

The first contention urged for the dealers before the High Court was that fertilizer was not a commodity essential to the community within the meaning of s.3 of the Defence d india Act, 1971 and, therefore, the State Government had no power to fix its price or give

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RAMCHANDRA MAWALAL v. u. P. STATE (Varadarajan, J.) 367

any other.direction in regard thereto. 1'he learned Judges of the High Court held tl1at chemical fertilizers being necessary for increased production of food crops and oil seeds crops-.under modern scientific methods of agriculture would be commodities essential for the life. ' of the cornmuni.ty and that the argument.that trade in chcn:iical ferti- lizers cannot be regulated m1d>0r s.3 of the Defence of India'Act, 1971 is untenable. Before us no argument was advanced by the learned counsel for the appellants that chemiCal fertilizers arc not essential

0 commdites. 01\ the other hand, it was repeatedly contended that it is an esseniial commodity within the meani1ig of s.2(1)(a) of the Essential Commodities Act, 1955 and is specifically mei1tioned as such in s.2(l)(a) (xi) of that Act. There is no dispute before us about this matter though there is dispute whether fertj_lizer can. be brought within the words "any article" mentioned in Rule 114(2) of the Defence of India Rules, 1971. Therefore, that question does not arise for detailed consideration by us.

The second ground of attack before

0 the High Court was that the State Government lacked the power to control the price of chemical D fertilizer on the ground that no suc; h power is conferred on it by the Defence of India Act, 1971 and the rules framed thereunder in respect of chemical fertilizer as being needed forthe preparation of the defence or connected with the prosecution of war .. This contention was rejected by the learned Judges of the High Col!rt. It is not necessary for us to consider this aspect of the matter as no such argument was E advanced before us by the learned counsel for the appellants .. The dispute before us is as to whether chemical fertilizer would fall withi1; the words "any article" found in Rule 114(2) of the Defence. of India Rules framed in exercise of the power conferred by s.3 of the Defence of India Act, 1971 though it is not disputed that the impugned Stat.e Government notijication dated 14.6.1974 was issued when the

. F emergency wiuch was lifted on 22.3.1977 was in , force.

The riext contention mged before the High Court was that as the Central Government had already fixed the .price of chemical fertilizer by the notification dated 1.6.1974 issued under the Fertilizer (Control) Order, 1957 made in exercise of the power conferred by s'.3(i2) (c) of G the Essential Commodities Act, 1955, the State Government had no power to fix its price under Rule 114(2) of the Defence of India Rules, 1971 by the later .notification dated 14.6.1974 in exercise of its delegated power.. This contention w"Us rejected by the learned Judges of the High Court as being unacceptable. The argument of the H learned Advocate-General. appearing for the State of Ut):ar Pradesh

before the High Co.ur'. was that by the impugned notification dated . '14.6.1974 the State Government had not fixed any price, but hid only . directed that certain stocks of fertilizers which were in the possession

•Of dealers on 31.5.1974 shall be sold at the ra1es fixed by the Central' Gavernment in the. earlier Notification dated 11.10.1973 which had been superseded by its own 1iotifica!ion dated, J.6.1974, has not been acceptedby the. learned Judges of the High. Court as the basis of their decision. 011 the other hand, they have proceeded on .the basis th4t the State Government bas fixed the dealers' sale price of the fertiliiler bythe impugned notification in exercise of the .power conferre~ by Rule 114 of the Defence of India Rules, 1971.

.The undisputed fact is that the price fixed for the sale of the fertilizer to dealers was Rs. 1005 per ton under the Central Government's previous notification dated 11.10.1973 which was superse(J0d by its subsequent notification dated J.6.1974 in whic!1 the price fixed for sale of the fame variety of fertilizer to dealers was Rs. 1960 per ton from the date. of that notificatio1i. The price. fixed for sale by dealers was .Rs .. 1050 per ton under the superseded notification \lated ll.10.1973 and Rs. ,2)00 per .ton.in the notification dated 1.6.1974. The learned Judges of the High Court noted the obvious fact that the dealers would get an excessive margin of Rs. 995 per ton in respect of the old stock , purchased by themat Rs. JOOS p.er-ton by selling that stock at the new sale price of Rs. 2000 per ton fixed by the notiliction dated 1.6.1974, whereas .under the notification dated 11.10.1973 their margin was only Rs. 45 per ton. They liave expressed the view that it could be a legitimate circumstance to per- , suade' them to -exercise their discretion under Article 226 of the Con- .stitution against -the appellants.

The lef!rned Judges rejected the contention urged on bhalf of the de.alers that there is conflict. of power exercised by the Central Government and the• State Government in the same commodity, fertilizer, by the two notifications dateq (6.J974 and'

014.6.1974.-bn the ground that the Essential Commodities Act, 1955. under which the Fertilizer (ContrO:I) Order, 1957 has been made and the Central 'Governmenj's notification dated 1.6.1974 has been issued. and. the

I)efence of India Ac.t, 1971, under which the Defence of India Rules, 1971 have been fra,'.ned and. the State Governme.nt's notification dated 14.6.1974 has been issued, are both Central enactments crperating in different fields and have different objects, that it is only an · accident that the,. two notifications relate to the same !'ommodity, •

fertilizer, considered as an essential commodity. by the Central Gov-

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• RAMCHANDRA MAWALAC v. U.P, STATE (Varadarajan, J.) 369.

ernment under the Essential Commodities Act and as a commodity essential to the community by the State Govemment'lmdr the Defence . of Tndia Rules, that the State Government has unfettered power under Rule 114 of the Defence bf India Rules, 1971 to fix the price of . . . fertilizer and regulate its supply notwithstanding the fact that fertilizer is. an essential commodity qnder -the J; lssentiai. Commodities Act .. 19.55 and .that the State .Government can 'also. do under the Defence_ of India Rules,- 1971 framed under the Defence of India Act, 1971 what.the Cen!ral Government can do under the Fcrtil, izer (Control) Order. 1957 made under the Esential Commodities Act, 1955, The 1-'arned Judges rejected the argument of the learned Advocate-General that the Central Governme.nt's notification dated 1:6.1974 does not apply to .stock

of fertilizer which the dealers had carried forward from the stock which was available on 3LS.1974 and held that in vie"'. of:s.37 of the Defence of India Act, 1971 whicli says tht the provisions of that Act or any Rule made thereunder or any Order c::ade under any such Ru!' shall haw effect not withstanding anything inconsiSteni

iherewith co.ntalned in any enactm, nt other than that Act. or in any , instrument having ffect by vrtue of any enactment other ,!han that Act confers supremacy on the later State Government notification dated 14.6.1974 over that of the Central Oovernmnt <lale<l 1.6.1974,

 They held that the similar provision in s.6 of the Essentiai'Comni.odities Act, 1955 which says that any order made under s.3 of that Act shall have effect notwithstanding anything inconsistent therewith . in any other enactment or any instrument having effect by virtue E of any enactment other than that Act will not 'have any effect on the . power of the State .Government. exercised under the Rules made under the later Defence of India Act, 197-1 which also is a Central enactment bn the ground that the pr.ovisions of .the later enactment p(evail over those iri the earlier enactment of the same legislativejiody m view of s.37 of the later Act.

The learned J.udges 'of the High Court rejected .the contention urged ol) behalf of the dealers that the Essential Commodities Act ., is a speci•I Act deali1ig with essential commodities nd the Defence qf India Act, 1971 ls a general Act dealing with a!lother commodities and, thercfvre, the notification dated 1.6.1974 issued by the Central G Gowmment under the Fertilizer (Control) Order, 1957' made under the provisions pf that Act must prevail over the St.ate Government's notification dated 14.6.1974 issued u11der the Defence of India Rules, 1971, framed under the 'Defence of India. Act, 1971. Jhey. have. observed that no question of speciai or general Ac\ arises fn these H cases in view of. tlii provisions contained in s.37 of.the Defence of

, .

A India Act, 1971 and that s.6 of the Essential Commodities Act, 1955 draws within its ambit only those Acts which were in existence and 1--" in force on the date f commencement of that Act and that it cannot take within its ambit the later Defence of India Act, 1971.

The learned Judges of t)le High Court rejected the contention B urged on behalf of the dealers that the State Government's impugned notification dated 14.6.1974 is malafide and motivated and the result • of colourable exercise of power. There is no need to refer to this &round of attack in detail as no argument was advanced in this court about any su;:°h groud. .

C The next contention urged before the learned Judges of the High Court on behalf of the dealers was that the State Government's notification dated 14.6.1974 was discriminatory on the ground that. some governmental agenc.ies falling. within the definition of "dealer" in the Fertilizer (Control) Order, 1957 were permitted to sell their stock o( fertilizer carried over fr6m 31.5.1974 at the new rate mentioned

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D in the Central Govern~1ent's notification dated 1.6. 1974. The learned Judges rejected 'this contenton on the ground that . the impugned notification dated 14.6.i974 applies to all dealers of fertilizer equally and does not provide for any such discrimip.atory treatment.to gov• ernmental agencies and that the executive oder to that effect, if any, may be illegal and would not invalidate. the impugned notification as ...\-'

E being discrimintory. .

The learned Judges of the High Court thus upheld the validity of the State Government's impugned notification dated 14.6.1974 and held that it is only prospective in ope1; ation and would apply only to sales of fertilizer made from 14.6.1974 out or"the stock which was available with the dealers at the end of 31.5.1974.

The appellants are dealers in fertilizer as defined in Clause 2(c) of the Fertilizer (Control) Order, 1957. According. to that clause . ."dealer" means any person carrying on the business of seJ!ing fertilizer, whether wholesale or retail. , According to Clause 2(d) of that Order, fertilizer means any substance used or intended to be used as a fertilizer of the soil and specified in column 1 of Schedule I and_ includes a . mixture •of fertilizers and a special mixture of fertilizers. Trade artd

ommerce in, and the production; supply. and disfribution of the products of any industry whet.e the control of such industry by the

Union .is declared by Parliament by law to be expedient in public interest fall under entry 33 of the Concurrent List Ul in the Seventh

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RAMCHANDRA MAWALAL 1'. U.P. STATE (Varadarajan, .(.)" 371

Schedule of the Canstitution. Trade and commerce within the State subject to the provisions of Eutry 33 of List TIJ faH'under entry 26 of the State List II in the same Seventh Schedule, Fertilizer is an essen: tial commodity under s.2(a)(xi) of the .Essential Commodities Act,

1955. The Fertllizer (Control) Order: 1957, has been made in exercise of the power conferred by s.3 of the Essential 'Commodities Act iri respect of fertilizer. Under Clause 3(1) of that Order the Central Government has power, with a view .to regulating equitable distribution of fertilizers and making fertilizers available at fair prices', by a notification ift the official gazette, to fix the maximum price or rates . at which any fertilizer may be sold. by a manufacturer or a dealer.

The Central Government had issued the notification dated 11.10.1973 fixing the maximum sale price by producers fo dealers as Rs. JOOS per ton .and the ma\J<.imum sale price by dealers to consumers as Rs. 1050 por ton. in respect of the variety of fertilizer with which we are . concerned in these appeals. There. is nothing on record to show that when that. notification of the Central Government was in force. there was any notification of the State Government of Uttar Pradesh fixing the maximum price o( fertilizer for sale by dealers. Subsequently, the Central Government issued the notification :No: G.S.R . . 254E dated 1.6.1974 fixing th'e rria, ximum price at which a dealer could sell t_hat variety of fertilizer as Rs. 2000 per ton in supersession . of the earlier notjfication .dated 11.10.1973.· There is no dispute . that the price fixed for sale, of that variety of fertilizer by the producer to the dealer is Ro. 1960 per ton. Under s.3(1) of the Defence of Tn>[ia Act, 1971 the Central Government had power, by notification in the Official Gazette, to ))Jake such rules as appear to it necessary or expedient for securing the defence bf India and civil defence, the Jl.Ublic safety, the maintenance of public order or the efficient conduct , of military o'perations, or for maintaining suppiies and services sscntial

to the life of the community. Section l (3) of that AGt said that the Act shall come into force at once and shalI remain in force during the period of opration of the Proclamation of Emergency and for six months thereafter. There is no dispute that the'.Emergency which was in force when that Act was pas sec\. was lifted on 22.3.1977.

Rule 114(2) of the Defence of India Rules, 1971 made in exerCise of the power conferred by s.3(1) of the Defence of India Ad, 1971 says that if the Central Government or the State Government is, of opinion that it is necessary or expedient so -to do for securing the defence of India and civil defence, the efficient conduct of military operations , or the maintenance or increase of supplies anl services essential to the life of the community or for securing the eg_uitable distribution and availabity of any artfole or thing at fair prices, it may, by order.

provide . for rcgulatig or

0 Jirohibiling uic production, manufacture. supply and di.stribution. use and cc; nsumption of articles or things and trad\' and co111merce therein or for preventing any corrupt practice or abuse' of autho.rity in respect of anysueh. matter.. ·. ·

Rule l 14(3)(h) gives power to the Central :Government or the . State Government to fix the prices or rates at which articles or things

of a1iy"descriptio11 whatsoever may be· sold or. hired or for relaxing

cl11y maximu1n or mininum limits otherwise imposed on suCh prices.or rates; It is under that rule that the State Government issued the impugned no'tification No. A-490(V}/XII-1974 <laird 14.6.1974 fixing the maximum prid .of th~. concerned variety of fertilizer in these terms : "No registered dealer shall charge or retain or enter into or enforce any contract for charging, i°' respect of any fertilizer sold to any person on. or after June I. 1974 from out of any stock carried over , by him from May 31, 1974 a price exceeding the maximum price flxed

under Clause 3. of the Fertilizer (Control) Order, 1957 as it prevailed qn May 31, 1974". The reference to .the price a.s it prevailed on May 3L 1974 is to the price fixed in the. Central Government's notilication dated IL 10. \973 which has been specifically superseded by the Government's notification dated 1.6.1974. The High Court has. held that the impugned notification dated 14.~.1974 is prnspective . . in.operntioIJ and t:an apply only to sales made from 14.6.1974 of the fertilizer which was carried over from the stock held at the close of 31.5.1974. ft is. not dispted that the notification could be. only prospective in operation and would not apply to sales effected up to 14.6.1974 of the fertilizer carried over from the stock which was I" Id at !_he.end of 3i.5.1974. Tt is al; o not disputed that the Slate Gpernment issiied the impugned notification with the object of preventing_ de.alers from profiting to the extra extent of Rs. 950 per ton in respect of the stock which had be.en purchased by them <prior to 1.6.1974 at Rs.JOOS per ton by selling the same at .Rs. 2000 per ton fixed in the notification dated 1.6.1974 while that stock could have been sold prior to l.6.1_974 only at Rs . .1050 porton. The question is which of these two notification is valid and should prevail in regard to the fertilizer carried ovr from .the stock held by dealers at the close of

31.5.1974.

The Central Government's notification dated 1.6.1974 issmd under Clause 3(1). of the Fertilizer (Control) Order, 1957 ri1ade in exercise _or"ihe power conferred by sJ(lj of the Essential Commodities Act 1955. and the State Government's impugned notification dated . . ' ..

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RAMCHANDRA MAWALAL v, u. p, ST_ATE \Varadar<ijan,' J.) 373

14.6.1974 issi; ed under ule ll4 of the Defence of India Rules, 1971 made in exercise of the powers conferred by. s.3(1) of the Defence of J'ndia Act; 1971 relate to -the same comm0dity, fertilizer, _which is declared to be an essential° commodity under s.2(a)(xi) of tlie Essential Commodities Act, 1955, and may ordinarily fall under. the term . "article o.r things of any description whatsoever" occurring in Rule 114(3)(h) of the Defence of India Rules, 1971 and 'both of them fix the. maxinium price at which dealers can sell the fertilizer. The Central Government's notification dated J.6.1974 applies fo the whole country while the impuged notification dated 14.6.1974 of the State

Governmnt cdrt apply only tothe State of Uttar Pradesh. ·

The appellants' attack on the impugned notification is two-fold.

The first ground of attack forcibly urged by Mr. P. Govindan Nair, senior'Counsel appearing for.one set of appellants is that the impunged notification is alto.gether invalid in.law .and non est on the grbund that the State Goverri1nent has no power whatsoever to isue the notification under the Defence of India Rules in respect of an essential commodity, fertilizor, covered by the Central Government's notifica- . tion issued under the Fertilizer (Control) Order, 1957, made in exercise of the powerconferred by the Essential Commodities Act .. The seccnd ground of attack urged by Mr. Yogeslawar Prasad, Senior Counsel

apparing for the other set of appellants is based on Article 14 of the Col1stitution, mimely, that it is discriminatory and, therefore, bad in law. Mr. S.C: Manchanda, -Senior Counsel appearing for the

respodents in all, the appeals naturlly subnif!ted tha't there is. no substance_ -in any .of these t; vo grounds.

The seco'nd ground of attack projected by Mr. Yogeshwar Prasad may be taken up first for. consideration. This ground has been considered by the learned Judges of the High Court as.the fifth ground of attack before them at pages 29 to 31 of the paper book in <:; ivil Appeals 1568-1576 of 1974, and rejected by them. The submission of Mr. Yogeshwar Prasad is that some governmental agencie.s ·,. falling within the definition of "dealer" in the Fertilizer (Control)

Order, 1957 \verc permitted by the Stafe.Gaverriment to sell the .ferliljzer carried over from the st0ck held at theclo; e cf 31.5c1974 at the new enhanced rate of Rs. 2000 per ton fixed in the Central Government's notification dated 1.6.1974 and that it is. discrimina_tcry' against the_ private dealers who are required by the impugned notification to se!i at the old rnte of Rs.· 1050 per ton fixed in the Central Government's old notification dated .ll.10.1973. To shew that such a direction was given by the State Government, Mr. Yogeshwar

Prasad invited attention to' the first sentence in the radiogrm 23.7.1974 issued by .the ChieJ Secretary

0 to the Government of Uttar Pradesh.

That sentence 'reads as follows : "All stocks of fertilizer available with ASO, AGRO Cooperatives and Cane Unions be distributed without any condition regarding purchase of fertilizers atntw rates';.

It is not possible to make out. what exactly was intended to. be conveyed by that sentence in the radiogram. In the counter-affidavit of the Accounts Officer, Fertil, izers and Manuares Directorate of Agriculture, Government of Uttar Pradesh, filed in C.M.P. 6773 of 1974 on the file of this Court, it is stated thanhe State Government .has not allowed any State owned agency to sell the stocks of fertilizer carried over from 31.5.1974 at the rates fixed in the Central Government's notification dated 1.6.1974, that the radiogram was not meant to permit Agricultural supplies Organisation and the Agro Industrial cbrporation and other governmental agencies to, sell the stocks carried over from 31.5.1974 at the revised rates and that it was issued to remove only the condition. There is no other materia_I on the record to show that any direction was given by the State Government for the -governmental agencies to sell the fertilizer arried over frol]'l 31.5.1974 at the enhanced rate fixed in the Central Government's notification dated I.6.1'174. Therefore, the very basis of the contention of Mr. Yogeshwar Prasa<l that. there is any discrimination. against private dealers like the appellants represented by him compared with governmental agencies in the matter of the sale price of fertilizer has not been establisi1ed.

Even if any such direction had been given, it would certainly be bad in law as being discriminatory. ft would not, however, invalidate the impugned. notification which per se applies to all dealers of fertilizers in the entire State of Uttar Pradesh,

wheth9r private or governmental.· Consequently, the impugned notification of the State Government cannot be held to be bad in law on . the ground of discrimination if it is otherwise valid.' Mr. Manchanda relied upon the aforesaid counter-affidavit in support or' his contention that there is no basis for the contention that there is any discrimination against private dealers. The second ground of a\tack projected by Mr. Yogeshwar Prasad fails and has been rightly rejected by the .learned Judges of the High .Court. · .· • • The first ground is as regards the power of the state Government to issue ihc impugned .notilication dated 14:6.1974, fixing for the sale o! fertilizers by dealers to consumers a price different from the one fixed in the Central Government's notification dated I.6.1974. In considering this quesiion the fact that the notification was .issued by the State. Government with the. object of preventing dealers in the State

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• '1\AMCHANDRA MAWALAJ, v. u; p, STATE (Varadarajm.i. J.) . 375

of Uttar Pradesh from driving undue excessive profit from agricultural consumers in respect of the fertilizer which had been purchased by the deale'rs at Rs. 1005 per ton under the old. CentrarGovernment's noti' fication dated 11.10.1973 and. that it applies to the fertilizer which was in stock at the end of 31.5.1974, should not weigh with the Court,· for th. question is of the po'wer of° the State Government to issue the notification. The questfon is whether the State Government • has power to fix the price of fertilizer under the .Defence of India Rules, 1971, framed in exercise of the powers.conferred by the Defence of India Act, 1971 after the Centra I Government had already fixed the price under the Fertilizer (Contrql) Order, J 957 rnae in exercise ofthe power conferred by the Essential Commodities Act, 1955 .. If in iaw the State Government could fix 'the price in , respect of the • limited stock of fertilizer carried over from 31.5.1974; it can certainly fix the price of.the fertilizer received by the dealers even. after 1.6.1974 in respect of which the Central Government's notification dated L6,1974 would undoubtedly apply. ·

The Essential Commodities Act, 1955 in an enactment passed D by Parliament to provide, in tl; e interest.of.the general public. 'for the control of the production, supply and distribution and trade and commerce in certain cOmmoditic.s which have been notified under that Act'as essential commodities. The very objct of the. Essential Commodit\es Act ls to check the inflationary trends in prices and to ensure the equitable d; Siribution of essential commcdities. Section .E 1(2) of that Act makes. it applicable to the whole of India. It is a permanent enactment in tf1e sense that its operation is not n::stricted to any particular pericd. 'The Fertilizer. (Control) Order .. 1957 has been made in exercise of the power conferred by s.3(2)(c) of the Essen~· tial Commodities Act, 1955 for controlling the price at which any essential commodity may be bought or sold. Fertilizer has been F declared to be an essential commodity under s.2(a)(xij of the Essential .

C9mmodi.tics Act as mentioned above. Ther.efore, .the price fixed in the notification issued under the Fertilizer (Control) Order, 1957 squarely applies tO fertiliz~"· The Defence of 1.ndia Act, 1971 also is an k:t of Parliament which was intended to provide for special measures to ensure the public safety and intere!t, the defence of India G and civil defence and for the trial of certain offences and for matters connected therewith. That. Act also extended to . the whole of India, but µnder s.1(3), it came' into force at 0°nce and remained in force 'tluring the period of' operatlon of ihe Proclamaticn of Emergency and for a period of six months there.after.

Sub-clause (a) of Subsection (3) of 's. ). saves anything duly done under the Act as if the

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Act had.not expired. As stated earfier the Emergency which was.in force when the .State G.overnment's impugned notific.atio.n dated 14.6.1974 was issued, was lifted 01; 22:3.1977: The life of the Deferice ofindia Act, 1971 thus extended upto si~ months after 22.3.1977, Jn .that way the Defence onridia Act, 1971 was. a temporary enactment intended to be in' operation for only a limited period.

• . ...

The Defene of India Rules, 1971 had been 'issued iri exercise of the powercoi1ferred l:iy s.3 of the Defence of India Act, 1971. Under Rule .114(2) of thqse Rules; if t)1e. Central Government or the State .

Government.is of opinion thatit is necessary or expedient. so t~ do. ) for securingthe defence of India .and civil defence, the efficient conduct ~· of military operations or the maintenance or increase of supplies and 1 services essential to the .life of the community or. for securing the .. equ. itable distribution aJ\d. availability of any ar.ticlc. ~.r thing at fair . prices,. it may, by order, provide for regulating or prohib.iting the . production, manufacture, supply and distribution, use and consump- . tion of articles or . things and trade and comerce therein of for ) preve11ting any corrupt practice or abuse of. authority in respect of any such matter.

Sub-rule (3)(h) of Rule 114 said that without vrejudice to tlie generality of.t11c powers conferred by sub-rule (2) an order made .

E thereunder may provide for controlling the p, rices or ratl'!l at which ' ' ) ' .

,. articles or things of. any description whatsoever may be sold or ,- hired or'. for. relaxing any maximum G>i' minimum limits otherwise imposed on such prices or rates. .The State Government's impugned notification ]fas been issued, as already.stated, in exerdse of the power f, ·•conferro(l by this. sub-nile of. Rule 114,_ •.

/ ' . . .

The Central Government had already. assumed power' under! the Essential Commodities Act, 1955 tO control the prfee of essential f CoJllmodities. includig-ferti!izer.as a perm.anent measure, and could do under the provisions ohhat Act in relation to that essential com- .. ;,, odity what it may do under the Defence 'ofJndia, Act, 197L a tem- G . poracy. measure, if frrtilizer . could be broi1ght under the .description . of '.'articles or things of , any description whatsoever". Bqt si, nce it .J1ad already assumed the power under the Essential Commodities Act, 1955 to control the price of fertilizer if was not necess:iry.for it to get itself armed oneeagain with the µower.to control theprice of •. - H the same essential commodity under the Defence .of India Act, 1971 .•

wich came about 16 years l.ater. Therefore, the conlenticn cf Mr.

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• RAMCHANDRA MA\\'ALAL v. u. P. STArn _(Varadarajan, J.) 377

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• -Govindan Nair that the Essential .Commodities Act, 1955 is a special A enadmerit relating to only essential commodities an!i the Defence. of India' Act, 1971 is a general enactment relating to .all other commodi~ ties, and that the words "articles .or things of any description what- _soever" occurring i.n Rule l 14(3)(h} of. the Defence of India: Rules, 1971.cannot be understood to include essential commodities has. force and hs to b~ acceted. It cannot be ass\lmed that Padianien.t which B had .already legislated in the Essential Comnicdities Aot, 1955, a

permanent measure, .in. respect of fertilizer intended to -legislate once '. again and could have felt-the need to legislate once again in the t.em-. por; ry Defence of India Act, 1971 in respect of the same article, especially bec.ausc what .could be done under the Defence of india Act and the .Rules which may be framed thereunder cbul<) as well C be. done with equal force under the Essential Commodities Act .a.nd orders which may be passed thereunder.

Therefore, the r; ontention that the state Government .has no power to fix the price of. esse!ltial ' commodities. covered bv the Essential Commodities Aet, 1955 and ·the Fertilizer (Control) Order, 1957 in exercise of:the. power con-· .ferred on it.by Rule 114 0fthe Defeqce of Jndi.a Rules, J.971 issued D" und.er the Defence of Tndia Act, 1971 is we.II-founded and has to be accepted.

. Section '.3(2)(c) of the Essential Comodities Act, 1'95.5, pursuant to which the Fertili, er .(Control) Order,.1957 bas been.made says that without prejudic~ to the generality of the powers conferred by sub- . section (l) an order made. thereunder may pFovide for. controlling the price at which any essential cpmmodity may be brought or sold.

Th; s sub-clause of s.3 of the -Essential Commodities Act.has not left anything to be done under the Defence of India Act, 1971 in. the matter of fixation of price of any essential commodity whether it be for secur~ i.ng ahy essential commoditv for the defence of India or fer the effective military. operation or for'. securig th~ equitable distribution and availability of essential commodities at fair prices or distribution

therof. and trade and commerce therein as envisaged in s.3(1) of that Act ' 1

lf the State Government felt th?rthere was any special. circum- stance to be t.aken into'a 0ccount for fixing the prit; e of'the essential . commodity, fertilizer,~ in the State of Uttnr Pradesh at a rate lower

than the one fixed by the Central Gov.ernmni in jts notification dated . 1.6.1974, it could. have achieved that objec~ by getting steps to be

taken under the Esscn.tial Commodities Act 'itself. Section 3(2) of that Act lays dowri .that the Central Government may, ha.ving regarg

to the local conditions of any area" and other relevant circumstances, tk different prices or rates in respect of different areas and for different classes of consumers. The State Government could have requested the Central Govrnment fo act under s.3(2) of the Essential Commodities Acbmd fix a different price or rate for the sale by dealers in that State of fertilizer carried over from the stock held on 31:5.1974.

Section 5(b) of the Essential c6mmodities Act provides for delegati6n of powers and says thai the Central Government may; by notified . order, dir•ci that the power to make or issue notifications. under s.3 of that Act shall, in relation to such matters and subject to .such con~ ditiom. if any, .as may be specified in the direction be exerciMble also by such State or such officer or authority sul)ordinate to a State

Government as may be specified in the direciion. The Central Gov' er.nment has ·-;10t issued any direction under s.5(b) of the Essential Commodities Act delegating its power to issue notification under s.3 of that 'Act to the State Government or any officer or. authority ·.of that Govern1nent. The State Government has thus not resorted to the provisions contained in s.3(2} or s.~(b) of the Essential Commo-. dities Act, but has. proceeded to fix the price of fertilizer .on its own under the Defence of India Rules; 197,1. which it cannot do under those Rules and the Defence of India Act, 1971 in respect of the essential commodity.

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Section 6 'of the Essential Commodities. Act, '1955 saves any order made mider s.3 of that Act from the impact of any other enactment. .It is not possib]e to accept the cntention that theother Act or enactment referred to in s.6 of the Essential Commodities Ac(

1955 would be only.ihe Act or enactmeht which was in force on .the date of commencement of that Act and. not any future Act or Acts. This contention has been wrongly rejected by the learned Judges. of the High Court. Section 6 of the Essential Commodities Act says that an order ·ade under s. 3 shall ave effect notwithstanding anything inconsistent the'rewith contained.· in any enactment other than .

that Act or any insrument having effect by virtue of any enactment other than that ,\ct .. It is true that there is a similar saving provision . , in s.37 of the.Defence of India Act, 1971 which says that the provisions of that Act or any Rule niade thereunder or any ordr made under any such Rule shall haye effect notwithstanding anything inconsistent : therewith contained in any enactment other than that Act or in any instrument having effect by virtue of any enactment other than that Act.

But as stated above, the Defence of India Act, 1971, which was a general .and tempotary Act and the Rules framed thereunder cannot apply to fertilizer which is an' essential commodity governed . . .

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RAMCHANDRA MAWALAL v. u. P. STATE (Varadarajan, J.) 379

by the Essential Commodities Act, 1955 and the Fertilizer (Control) A Order, 1957 inade under the provisions of that Act. Therefore, the State Government cannot without delegation issue any notification under the {)efence of India Act and Rule.s, 1971 .in regard to the price of fertilizer, an essential commodity governed .by the Essential Commodities Act and the Fertilizer (Control) order, 1957. The learned Advocate-General of"the State was perhaps fully conscious of the

 B legal position that the State Government'ahnot fix the price of an essential commodity by any notification under the Defence of India Rules, )971 in the circumstances when he took the patently unacceptable stand before tbe learned Judges of the High Court that the State Government did not in fact .fix the price of fertiliZer ii{-its impugned notification dated 14.6.1'974 but it only directed that ertain stock of C fertilizer which. was in the possession of dealers at the end of 31.5'.1974 and ws carried .over by•thetn shall be sold at the rate fixed .in the Central Government's earlier notification. dated ll.10.1973, which . as stated above; has been specifically superneded by 'its .. ·ubsequent notification dated 1.6.1974. If the .State Government had not fixed the price at which fertilizer caµ be sold be dealers by the impugned D notification dated '14.6.1974 though it is no doubt in respect of the stock carried over from 31:5.1974, one fails to see what else it did or why it was considered necessary. Therefore, the learned Judges of the High Court have rightly rejected U1at submission of the learned

Advocate-GeneraL · ' ·

As stated above, tra<!e and; commerce in and the production, suppl:\( and distribution of the products. of any industry where the control of such industry by the 1.Jni<in is declared by Parliament by law to be expedient in the public interest fall under entry 33 of the Concurrent List Ill, and trade and commerce within the State suliject .to the provision~ of Entry 33 in the Concurrent List III fall under Entry 126 of List II of the Seventh Schedule to the Constitution .. If the State Government's impugned notification is ass.urned to be a law enacted by that State's Legilsture on Entry 126 of List II, since

the Act of Parliamnt passeq on Eniw 3~ of List III and the Fertilizer (Control). Order, 1957 passed under that A.ct were already in force, the assent of the esident had to be received in order. that the State . Government's notification assumed to be a law.enacted by the Siate's Legislature may prevail in the State as .required by Article 254(2) of the Constitutio, n which reads thus : • •

. ' ' . "Where a law made by the Legislature of a State with H respect to one of the matters enumerated in the Concurrent ...

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380. '.

. SUPR~ME COURT REPORTS ·, [198412 s.c.R.-

List contains any provisi0n repugnant to the proisions of an earlier law !)lade. by Parliament or an existing law :with respect to that matter, then, t_heIaw, so made by the Legislature of _such State shall, if "it has been reserved for tJ1e considera!ion of the President"and has received his assent, prevail in that State : B' ' ".

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Provided that nothing in this clause shall prevent Par- _ liament from enacting at any time any law with respeci to the samematter including a law adding to, amending, varying or repealing the Jaw so made by the Legislat11re of the.State." .

There is nothing :on record to show that the impugne(I notification of the State Government was placed before the President for his assent and. that his assent has been received: Therefore, the State Government's impugned notification cverr ~.a law cannot prevail over the earlier notification of the Central Government. - " ... . ,

The learned Judges of the High Court-were not right in rejecting . the submission made before them that there is conflict between the two notifications of the Cental Government dated 1.6.1914 and of

th~ State. Government dated 14.6.1974 and in holding that the State . ·Government has nilfettered power under the Defence of India Act, 1971 to fix the price of ferfilizerand regulate its supply notwithstanding the fact that fertilizer is an essential commodity under the_ Essential Ccimmodities Act, 1955 in observing and that what tl{e Central Government can d9 under the Fertilizer (Control) Order, '1957 _the State Government can do under the Defence of India Rules, 1971. There is a clear conflict betweeh the two;10tifications.in respect of the same .. essential" commodity,· fertilizer,· for' under the Central Government's

oiification dated J .6.1974 the price at which a dealer' can sell fertilizer of the concerned. variety is Rs. 2000 per ton while under the State Government's notification dated !4~6;1974 it is only Rs. 1050 per ton though no (loubt il iS restricted to the stoc\< carried over from

31.5.1974. which is immaterial in judging the power of the State Gov' ernment to _fix the price of an essential commodity by a rtotificatio~ made under the Defence of fodia Rules, 1971 in respect_.of which the Central Government had already 'fixed the iJrtce under the Fertilizer (Control). Order,' 1957; Once the Central enactment and th~ Central Government's notification govern the pric~ of an essential -commodity• the State . Government's notification isued in exercise of ti\e delegated authority under the Defence of India Act and the Rules framed thereunder cannot prevaii. The Two enac_tments have

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.RAMCHANDRA MAWALAL v. u. P. STATE (VGradanjan, J.) 38J:

. to be read in. such a way that ther~ is 110 co;1flict between them while giving effect to thel(jjn their respective fields of operation .. On the question of conflict and interpretation of statutes, we find the following passage in Craies nn Sttute Law (seventh edition) at page 222 :

"Acts of Par!iamept sometimes contain general enact- ,111ents relating to the whole subject-matter of the statute, and also. specific and particular enactments relating to certain . special matters;· and if the general and specific enactments prove to be in any way repugnant to 011e anot)ler, tl; e question . will arise, V.:hich is to control the othe1'? In Pretty v. Sol/yl11 .

Romilly M.R. stated as follows what. he considered to be the rule of. construction under such circumstances. "The . general rules," said he, "whieh are applicable to particular and general enactments in statutes ar.e very clear; the only difficulty is in their application. The mk is, that wbenever . there is a particular enactment and a. general enactment in the same statute, and the latier, taken in its most comprehensive sense, wouH over rule the forme;., the particular enact- . ment must ' be operative,. and the general enactment msut be taken to affect only the other parts 0f the statute to which it may properly al'ply".

Th.e following passage foun<l at page 187 of the twelfth. edition of Maxwell on the "Interpretation of .Statutes may also be noticed ;

"If two sections of the sa:me statute are repugnant, the known Fule is that the last must prevail". But, O\J. the general principle that an author must, be supposed not fo have intended to contradict himself, the Court will -endeavour to con- . . . . . \ strue the language of the legislature in such a way as to avoid having to appl~ .the rule, leges pos(erioi"es priores cont~ rarias abrogant. For exaivple, the provision in Order 47 of the Country Court Rules 1936 that ·"the scale of costs in' an action for the recovery of a sum of money only shall be determined .... as .. regards tlie costs of the plan tiff, by the amount recovered" was not construed as peremptory, for this woulp have brought it out of harmony with he • .· earlier provision in the same Order that "the costs df proceedings in a Country Court shall be in the discretion .of the Court."

(I) (1859) 76 Beav .. 606.

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. A . One way in which rewgnany can be avoided is bY

regarding two. apparently conflicting priohs _as dealing with distinct matters .oi' situatins."

There -will be clear conflict between the .two notifications _if it is understood that the State Government also can_ fix the price of any_ essential comn10dity covei'ed by the Essential Commodities Act, ,1955 and th.e_ Fertilize~ (Control) Order, 1957 in exercise of the power - conferred _ori it by the Defence of India Act, 1971 and the Defence of India Rules, l-97L The conflict c:an be avoided only if it is held that the Essential Commdities Act, l 955 and the Fertilizer (Control).

Order, 1957 deal with essential commodities and the Defence of Jndi, a Act, 1971 and the Defence of India Rules, 1971 deal with all other articles and things of any description whatsoever. The author of" the two enactments, Essential Commodities Act, 1955 and Defence of India Act, 1971 is the same, namely, Parliament, and Parliament must be held to have 1\ot intended to contradict itself while dealing with -distinct matters or situations under those enactments. If the State Governments are free to fix their own prices in notifications issued by them under the _Defence of India Rulee;, 1971 when the Central Government's notification fixing a single price for the whole country in respect of. an essential commodity is in force that i10tification of the Central Government will become otiose. The question is whether Parliament would have intended such a consequene .

The answer can only be an emphatic no. That situation has to_ be clearly avoided by a proper interpretation of the respective powers

or"the Central and State -Governments under the two Acts, and by holding that the Essential Commodities Act, 1955, arid the .Fertilizer , (Control) Order, 1957 deal with essential commodities and the Defence of" India Act, 1971 and the Defence of India Rules, 1971 dealt with all other commodities notwithstanding that fact that Rule I14(3)(h) mentions "articles or things of any description whatsoever", . - • In Municip.al COrPoration of Del/ti v .. Shiv Shankar 111 it ts observed:

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G _ "To determine if a later statutory provision repeals by • implication -"''earlier one it is accordingly necessary to closely scrutinise and consider the "true meaning and effect • + both of the earlier and the later statute. Until .this is done -it cannot be satisfactorily ascertained if a11y fatal inconsis- '

• (I) '(1.973] 3 S.C.R .. 607.

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. RAMCHANDRA MAWALAL v. u. P •. STATE (Varadai'ajan J.) 383.

!ency exists betwe.en them; The meaning, scope and effect of the two statutes, as discovered on scrutiny, determine the legislative intent as to whether the earlier law shall cease

or shall only be spplemented. If , the objeefs of th~ two statutory provisions are, different and the language of each statute is .restricted'to its own objects or subject, Jhen they are generally.intended to run• in parallel lines without meet-· ing a.nd there would be no real conflict thougl; apparently it may appear to be. so on the surface. Sratutes in qari materia although in apparent conflict should also so far as

reasonably possile, be construed to. be in harmony with each other and it is only . when there is an irreconcilable conflict between the new provision and the prior statute relati11g to the same subject rnat.ier, thai the former, being the later expression of the legislature, may be held to prevail, tlrnprior law yielding to the extent of the conflict".

If the Essential Com; nodities Act, .1955 and the . Fertilizer . (Control) Order; 1957 are considered to apply xclusively to fertilitzer,

an essentiat commodity, and the Defence of lndia Act, 1971 and the Defence of India Rules, W7 J are considered to apply to other commodities excluding essential commodities there would beno C()nflict whatsoever between the Essential Commodities Act and the Defence of India Act. aud .betwee>1 the notifications issued u.nder Fertili.zer (Control) Order, 1957 a1id the Defence of India Rules, 1971. If that is not done there will be real conflict between the two and, therefore, the two Acts must be so construed as to avoid conflict in the manner indicated above,

Mr. Manchanda invited attention to the foUowing. observation, in Zaverbhai Amidas v. The State.of Bombay<ll · ' · ..

• ''It is true; as already pointed out, that on a question ' under ar.ticle :254(1) whether an Act of Parliament prevails against a law Qf the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, thit if the subject-matter. of the latet legislation is identical with thai of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, wiJJ be:equally applicable to a question under article 254(2) whether the further Jegisla}ion by. Parliament is in

(1) [1955] J S.C.R. 799.

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. SUPREME COURT REPORTS

[1984) 2 S.C.R. . respect of the same matt.er as that of the State law.'

There is no question of placing the liter 1aw, Defence of India Act, 1911, for consideration bi the President under .Article- 2S4(2) of ihe Constitution for both the laws, the Essential Commodities Act, 195~ and Defence of India Act,. 1971 are laws passed by Par- Hament. There does not appear Jo be any ptovi; ion for placing .. any notification ma"de by .a.State Government under the Defence of India Rules, 1971 for consideration by the President. As already stated, if the •impugned State Government's notification is, however, considered to be in the nature of a State law there'is nothing o~ the record to show that it was placed before the President .for coniideratiori and had. received his asse!1t as already stated .. .· ·• Relylng upon the above decisitm in Zaverbhai Amaidas v. The . State of Bombay (supra) Mr. Manchanda .made a half-hearted plea ·

that the impugned State Government's notification relates only to fertilizer which was carried over from. the •.gtock held t the close D . of 31.5.1974 and thaf it is intendd to protect agricultural consumers: from dealers making undue profit and should therefore, be held to be_; valid in law. It is not possible to acce]lt this submi.ssion of "Mr. Manchanda. There. is no basis, whatsoever, to presume, and it will . be totally uncharitable to the Central Government to presume, that' the Centr~J. Government which had ·assumed powers nn\ler the Essen, . E tial Commodities Act, )955 to control the distribution of fertilizer ,

arid make it a.vailable at fair prices to consumers was ignorant of or-, ' .. had overlooked: the fact while mhingthe notification dated 1.6.1974 .;

fixing a higher price' for dealers to sell fertilizer to consumers with . effect from. tnat .date that there may be some stock of fertilizer on, 3).5.1974 .purchase!l by dealers at lower prices which 'may be carried; .

F .aver for.sle stibseq\lently. What has ben done by° the State Government under the ipipugned notification is utterly , lacking in power • and cannot be allowed to stand merely because i( relates only tq a . comparatively small quantity of fertilizer carried over from the stock

031.5.1974. and was intended to benefit and. protect a"gricultural consumers and' prevent dealers from making undue profits. For th~ ; G reasons stated above .the appeals are allowed and the .impugned State Government's notification dated .14.6.1974 is. quashed.' There will;,

be an: order directing the District Agriculiural Officers and other• l

District Authorities in the. State of Uttar Pradesh not to ask the dealers ·to Tefund the excess in respect of the sales completed prior to the. date: H of the impuged notificatioli. The District Magistrates concerned. shall return the. n; ionies deposited with them by the dealers pursuant

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 RAMCHANDRA MAWALAL v. u: p. S'{ATE°(Varadarajan, J.) 3~5 ' .

II\ •

tq. this Court's orders dated :2.9.1974 and 30.IOJ974. The respondents A shall pay the. appellants' costs. There ,.; ill be>one set_ of advo.cate's fees in the batch of appeals in whicl) _the appellants are represented by Mr. Govindan Nair.and.another set of a_dvocate's fees in t~ other . ' set of. appeals in which Mr. Yogeshwar Prasad appears.for the appellants. · ·. . . _ " . : .. . · '

RS.K.

Appeals dtsmiSsed.

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