Holding

Parliament may enact two statutes creating parallel powers; the Uttar Pradesh notification under the Defence of India Rules, 1971 is valid, not irreconcilably inconsistent with the Central notification, and does not violate Art. 14.

Summary

The case concerned a challenge by fertilizer dealers to a Uttar Pradesh Government notification issued under Rule 114 of the Defence of India Rules, 1971, which fixed the selling price of fertilizer stocks acquired before 31 May 1974 at the lower price fixed by an earlier Central Government notification of 11 October 1973. The dealers argued that fertilizer, being an essential commodity under the Essential Commodities Act, 1955, could be priced only under that Act and the Fertilizer (Control) Order, 1957, and that the State notification conflicted with the Central notification of 1 June 1974 and violated Art. 14 of the Constitution. The Supreme Court held that both the Essential Commodities Act and the Defence of India Rules are central statutes enacted by Parliament; Parliament may create two parallel sources of power, and the State notification was not irreconcilably inconsistent with the Central one because the Central notification was silent on the treatment of existing stocks. Consequently, the State notification was valid and not discriminatory. The Court dismissed the appeals, upheld the State's power to issue the notification, and vacated the interim orders of the High Court.

Issues considered

Whether a State Government can fix the price of an essential commodity (fertilizer) under the Defence of India Rules, 1971 when the Central Government has already fixed the price under the Essential Commodities Act, 1955 and the Fertilizer (Control) Order, 1957.
Whether the State notification is inconsistent, irreconcilable or intolerable with the Central notification of 1 June 1974.
Whether the State notification violates Art. 14 of the Constitution on the ground of discrimination.
Whether presidential assent under Art. 254(2) is required for a State notification issued under the Defence of India Rules.

Legislation cited

Constitution of Indias. Art. 14, s. Art. 254(2)
Defence of India Act, 1971s. 114(2), s. 114(3)(h), s. 3
Defence of India Rules, 1971s. Rule 114
Essential Commodities Act, 1955s. 2(a)(xi), s. 3(2)(c), s. 5(b), s. 6
Fertilizer (Control) Order, 1957s. Clause 3

Subjects

essential commodityprice controlDefence of India RulesCentral vs State legislationconstitutional lawArt. 14Art. 254statutory interpretationconflict of lawsfertilizerprice fixing

Judgment

•
A 348

RAM CHANDRA MAWA LAL AND OTHERS ETC.
v.

STATE OF UITAR PRADESH ANJ? OTHERS ETC.
B
January 9, 1984
[S. MURTAZA FAZA)'., Au, A. VARADA.RAJAN AND M.P. THAKKAR. JJ.] j
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
c. 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.
D Central and State statf/tes irreconcila~le . .

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
E 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 st~cks of fertilizer
acquired by· them prior to June 1, 1974 at the lower rate thus earning fabulous
F 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 t
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
G 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 notifica-
.H tion dated June l 1974 was invalid; and (3) that the notification being discrimina-
tory was violativ~ of Art. ·14 of the C0nstiiution .. The High Court upheld the
•

RAMCHANDRA MA\VALAL V, U. P. STATE 349

~ \'.alidity·of the impugned notification and dis1nissed the writ petitions. Hence.the.'$C A
~;1ppeals. ~ ·

Disn1issing the appeals by 1najority,

HELD:
..
(Per Mu:·taza.Fazal Ali and Thakkar, JJ.)
B
. 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 D·EJ c
Under the DIR po~er 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]
D
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 hand·in-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 inter~st of •NATIONAL HARMONY'. [360C·F] 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 parti-
cularity 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 B·C]

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 t~is question: Can the State law he obeyed or
•
•

350 SUPREME COURT REPORTS [1984].2 s.c.R.
A respecteCt without flouting or violating the Central law in letter and spirit? If
'the answer is in t!1e affinnati~c, the State Jaw cannot be invali~atcd. .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
B 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 asp~ct. 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
c 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 Govcrn-
m.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
D 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 'notifi~alions' issued'
E under an Act (as distinguished fron1 'laws made.by legislature'). [363 F]

Kera/a State E/ect1·fcity 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 v~ry 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,
G 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
H 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
•
•RAMCHANDRA MAWALAL I'. U. P. STATE 351

and-for difl'erent classes of consumers. The' State- Government could have A
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
0

Central Government may, by 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
B
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
c
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
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·

I There d~es not appear tO be any provision in Art. ~4(2) of the Cpnstitution
)I· for placing any notification made by a State Government under thC Defeace of
India Rules, 1971 for conSiderafion by the President. [380 C] · E
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 no~hing on record to show that the F
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.
. . . G
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 H
State Oover.nment to fix the price of an essential commodity by a notification

·'r.
352 SUPREME COURT REPORTS
•
(1984) 2 S.G.R. ·

made under.the Defence of India Rt;les, ~197 J in respect of which th; Central
A Government hact already fixed the price urilier the Fertilizer (Control) Order.
1951. Once the Central enact1nent and the Central Oovernn1ent's notification
go~ern 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 l~dia 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
IB 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 a·nct
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 a·single 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
fnte~pretation 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: CivilAppea·I 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 Sep-
tember, !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. •
I
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 deli~cred
•·
THAKKAR, J.. The Cortstitution which promises a socialistic
pattern of Society in the preamble and traces. the contours of the B
socialistic ·philosophy which permeates the spirit of the Constitution,
Can neither com1nand nof comm·end 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- c
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 D
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. · E
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 :
F
(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 G
(referred to as 'Act' hereinafter).

(ii) Some time later, on June ·I, 1974, the Central Govern-
ment issued a Notification whereby the maximum retail
selling price of different varieties of fetilizers was steeply H
revised upwards in or<le; to compensate the 'rnanufac-
•
354 SUPREME COURT REPORTS· [1984] 2 s.c.R.

A turers' in the context of the spurt in the prices of various
inputs. The extent of the rise may be illustrated by
. taking the instance of 'Urea 46% Nitrogen'. Its price ' .
was revised upwards from Rs. 1090 per ton to Rs. ~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 regis-
tered '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
ofstocks acquired at pre:revision .rates held .by the dealers
on the eve· of the upward r~vision of prices.

D (iv) The net result of the two last menli,oned notifications
was as follows ; The dealers could sell to the cultivators
fc~tili'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
E 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
F 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
G 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
·H the petitions giving rise to the present appeals by cer-
tificate, challenging the legality and validity of the
RAMCBANDRA MAWALAL v. u. P. STATE (Thakkar, J.) 355

i mp~gned 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 c
then because the cultivators·h~d not been a'ble to effect
their purchases till that date. ·

(iii) The price rise was authorised to compensate the 'manu-
facturers'. 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 were- not concerned ~ith the cost
of production.

(iv) In case the State Government had not issued the impugn-
ed notification dated June 14, J974, the dealers would
have been enabled to charge about twice the prices at E
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• F
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.
G
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.
H
The impugned.notification was issned in.order to meet a problem
•
356 SUPREME COURT REPORTS [1984] 2 s.c.R.
•
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 overl~oke~ 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 stock-
in-trade acquired at .the pre-enhancement price at the hitherto pre-
vailing 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:,

F (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 '
G 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.'
H
.(B) Even if the State Government had the 'power to -issue
RAMCHANDRA MAWALAL v. u. p, STATE ('Thakkar, J.) 357

the notification under the D.T.R., the notification was A
invalid by reason of its inconsistency with the notifica-
tion 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. B

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.
c
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 com-
modity cannot therefore be exercised under Defence.of India Rules,
1971 or under any other provision of law. D

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 Par-
liament in 1971 in order to meet an emergency situation. The
legislative competence of the Parliament to enact the legislation E
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 F
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' G
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' H
article. The expression 'any article' is~ v. idC enough in its amplit'ude
1
358 SUPREME COURT REPORTS [1984) 2 S.C.R.

A 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
B precedent to support the proposititin .that two avenues or soucces of
po~er 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
c~mmoditics declared to be essential and therefore in respect of such
commodities, the power can be exercised only under the Act.. We .
c 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 s·tatute Law"' :-· .
D
"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·
E 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· ·
F 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."
G
(Emphasis added)
'
It is overlooked that the said passage deals with different pro-

H
·, +-·
(1) Statute Law ofCraies, 7th Edition, 222
•
RAMCHANDRA MAWA).,AL v. u. P. STArE (Thakkar,'J.) 359

visions in the "same'.' statute. That when there is a special provision A
in the ·very same statute in regard to a subject matter,· the special
provision -of the statute will orc)inarily prevail. in rivalry or com-
petition 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 B
power to achieve the same purpose. To repeat what has been obser- ·
ved earlier, there is no lega_I bar. to~creating 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 Jegislature·can be exercised only
c
-
· 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 und~r the 'DIR' is assailed on the ground that it is
D
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
E
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
F
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-power-
e'quation in Order to supersede· the State notificatibn.
G
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 H
on the other, and;
360 SU PREM~ c6URT REPORTS [1984) 2 S.C.R.

A (2) whether the inconsistency is .an irrcconcilabic er intoiern blc
one ..
• •
. ls there inconsistency ?

B . 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 rat~s, 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.
c Th.e t\VO do ·not ov.:rlap.' ·Ttiere is therefore no r~al inconsistency.
The· principle may be stated thus. The Centre and the State both
ca_nnot spea!i on the same channel and creat~ disharmony. 1f 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)
. i> 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
E 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

F
principle must be presun1ed' to b~ conscious o'f the need fot accord
and no~d 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·, a·nd perhaPs; even overrid'e the State. But
· th_B·-c~ntre and the 'State can cert~inly ci_ccomtnodate_ each othc'r in a
G 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
n~ther than inconsisterlt or hosti'le.. · The· Centre does not· question
th<; authority of tho State, and, evidently". the Centre does net object
..;..._.
.H to the' State SJY~a~i~g on the nuance .on which the Centre hC!s_ mtlint3ined '
. . sil~nc~.· There is therefore no real eJemeilt of inconsistency jn the t\.vo
· . notifications: . The following· -passage extracted from Statutory
'RAMGHANDRA ,\!AWALAL v._u. P. STATE (Thakkar, J.) 361

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

, :,A g~nenll Statu~e appiies to a.Ji persons and lora1ities
within its jurisdictional scope, prescribing the governing law B
u·pon the sUbject it e 1 1c:::nnpass'.!~,, unless a speciql stlltute exists
1, to treat a refinement of the subject with particularity or to
J.. p.resoribc·a .different law for.a particuJa:r 16cality.. Likewise
\Vhere a later statute adaP,ted for a pafticular locality con-

.·~ •
-
flicts with a general law of state-wide application, the special
or local Jaw will supersede the general enactment. Where, c
however, the 1ater spe~ial or local statute·.·;s not irreconcila·ble
with .the general statute to the .degree th;<! both statutes •
C.'.lnnot have a ~ter1ninous operation, t~e general statute
wiJI not, be reRe.aled, but the special or /Ocal stqtute will exist

..
as an c~xception to its ternzs. ,,

(Emphasis added)
D

Assuming· for the ,sake of argument that i't is considered to be
an incOnsistency, Jt does not appe~r to be. an irreconcilable or· into-
1:rable ~ne, SJ as UJ inVal!date it, as will be presently shown.
E.
f.ci the alleke.i inr:onsistency irreconcilable··or intolerable.one ?

-
•
,: There are d~grees- of inconsi.stenc-y·in the c_Qntext of conflict of
laws. 'Fhec can be apparent or surface inconsistency·which may be
consid·~r<;d as a n9i\-hosti!e, tQlerable, benign, one, subject to the
F
unqu~-s~i::>ned pcnvcr .of the Centre' to override the State if so .mirided. ·
On prii:iciple1 eve~y appare~t inconsi~tency 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.tol~rable On~, is to pOse G
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, H
3rd Editic:_n .. Vo!. l; Pa2e 488
..
362 SUPREME COURT RBPOR'fS • (1984] 2 S.C.R.
A 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 notifica-
tion 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
B 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
c prices and to protect them from explo.itation so that the food produc-
tion is not retarded. It is not contended even by the petitioners, for
I the ~ery good reason that it is inc~pable 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 promo- )

tes rather than 'defeats', the 'life-aim' of Ce~tral as also the State
D 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 ha·ve 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
E 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.

F
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
. G. State law} and. the proposed award (in effect, the Common-
wealth 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
H
.(I) (1910) C.L.R. VoJ:IO, 266 at 299. ·
RAMCHANDRA MAWALAL v. u. P. STATE (Thakkar, J.) 363
,
lower than tile 'minimum named by. the proposed (Common- A
wealth) 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 con-
tradiction" 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. B
l~tter 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
c
case also an endeavour must be made· to place a harmonious inter-
pretation ~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' D
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 E
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 F
Presidential assent to '1iotifications' issued under an Act (as distin-
guished 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
..
G

~
notification as contended by some of the respondents '! ,
I Quite clearly no Presidential assent was possible to the«noti-
fication. Article ~54(2) does not conten;plate Presidential .
H
· (I) [1976] I S.C.C. 466 at 478
·:..

•
364 SUPREME COURT REPORTS. [19B4]2s·c.R
·.
A 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
B impugned notification was violative of Art. 14 of the Constitution of
. India and was t)1erefore invalid. The argument was advanced. on
the as~umption 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· imme-
diately preceding the issuance of the im,pugn~d. notificat,ion dated """
c 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~
.. f

...
I

of Agriculture, field in :C.M.P. No. 6773 of ! 97j clearly shows that
the State. Gcjvern1nent ha·d nOt' granted ·any such pern1issi011. Thus~
the very basis of the challenge on the score of hostile discrimination
D 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 g~ounds called into aid. by the appellants for ·
challenging the impugned notification are found to ·be dcvcid of . .l(
E · substance.

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 co~ts. · ·
. '
F 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~
G
We order .accordingly.' ·

Appeals dismissed. Interim orders vacated. . J...

H

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

VARAD.~RAJAN, J. Ci.vil"App~al 1656 of 1974 is by special !~ave. A
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
of·that 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 B
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 !V·P. No.

....
_
3421 of ]''}74 alone was referred to. · ·
0

The Writ Petitions filed under'.Article 22G of the Co nsliiution .
c
a
challenged the validity ·of notificqtion dated 14'6'~ 974 issued by the
·Government of Uttar Pradesh in exercise of the power conferred
-ti by Rule 114 of the r:iofence of India Rules, 1971, qirecting. that no
0

registered.dealer offerliJizer shall charge or retain. enter into or enforce
an)I contract for charging, in respect of any fertilizer sold to any D
person on or after 1.6:1974, from any stock held cln 3L5.1974, a pri~e
...
exceeding the maximum price fixed by the Central Government for
the sale of fertilizer under an ·ea·rlier 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 E
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 F
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 Authori-
ties not to enforce ·the order .for refuntl of the excess price. ryalized · G
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 H
possession .of the appellants. . before
. 1.6'1974 :should ,be deposited
366 SUPREME COURT REPORTS [1984] 2 S.C.R

·A 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
B Co_mmodities Act, 1955. ·The.maximum price for sale of ferti·lizers
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

c 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 r~gistered 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.
D 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 de~lers at consider"ably
lower prices from producers which was in existence oi1 31.5.1974,
E 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:t-
ing the District Agr,icultural Officers and other District Authorities
.F not to enforce the order me11tioncd above and some for the latter t .
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,
G (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
• H 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
..
RAMCHANDRA MAWALAL v. u. P. STATE (Varadarajan, J.) 367

any other.direction in regard thereto. 1'he learned Judges of the High A
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 B
0
counsel for the appellants that chemiCal fertilizers arc not essential
comm~dites. 01\ the other hand, it was repeatedly contended that it
is an esseniial commodity within the meani1ig of s.2(1)(a) of the Essen-
tial 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
c
' 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.
0

The second ground of attack before 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 for·the 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 dele-
gated 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
.)

368 SUPREME COURT REPORTS (i984] 2 S.C.R.

A 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
.y
. 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
B accepted- by 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 by·the impugned notification in exercise of the .power con-
ferre~ by Rule 114 of the Defence of India Rules, 1971.

c ·.The· undisputed fact is that the price fixed for the sale of the·
fertilizer to dealers was Rs. 1005 per ton ·under the Central Govern- 1
ment's ·previous notification dated 11.10.1973 which ·was superse(J 0d
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
D 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 them·at Rs. JOOS p.er-ton
by selling that stock at the new sale price of Rs. 2000 per ton fixed
E ·by the notilic~tion 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.

F 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,0
fertilizer, by the two notifications dateq (6.J974 and' 14.6.1974.-bn
the ground that the Essential Commodities Act, 1955. under which
the Fertilizer (ContrO:I) Order, 1957 has been made and the Central
G '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 crpera-
ting in different fields and have different objects, that it is only an · ·
H accident that the,. two notifications relate to the same !'ommodity, •
fertilizer, considered as an essential commodity. by the Central Gov-
•
.
,
RAMCHANDRA MAWALAC v. U.P, STATE (Varadarajan, J.) 369.

ernment under the Essential Commodities Act and ·as a commodity A
essential to the community by the State Govemment'lmd~r the Defence .

under Rule . .
·of Tndia Rules, that the State Government has unfettered power
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) •
~
A. Order. 1957 made under the E~sential Commodities Act, 1955, The
1-'arned Judges rejected the argument of the learned Advocate-General
If
',
that the Central Governme.nt's notification dated 1:6.1974 does not
0
c
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 th~t 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 v~rtue of any enactment other ,!han that
Act confers supremacy on the· later State Government notification
'D

dated 14.6.1974 over that of the Central Oovernm~nt <lale<l 1.6.1974,
· They held that the similar provision in s.6 of the Essentiai'Comni.odi-
ties 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. F
. ' .
~

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!l·other 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
370.
•
SUPREME COURT REPORTS [1984] 2 s.c.R.

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 I
• 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 noti-
fication dated 14.6.1974 was discriminatory on the ground that. some
governmental agenc.ies falling. within the definition of "dealer" in
I
the Fertilizer (Control) Order, 1957 were permitted to sell their stock '!--
o( fertilizer carried over fr6m 31.5.1974 at the new rate mentioned
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 discrimin~tory. .

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

Schedule of the Canstitution. Trade and commerce within the State A
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 B
Government has power, with a view .to regulating equitable distribu-
tion 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 c
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.
r J( there was any notification of the State Government of Uttar Pradesh
fixing the maximum price o( fertilizer for sale by dealers. Subse- D
quently, 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
E

~',.
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 orde·r or the efficient conduct
,of military o'perations, or for maintaining suppiies and services ~sscntial
I.
' to the life of the community. Section l (3) of that AGt said that the F
··~
Act shall come into force at once and shalI remain in force during the ·
period of op~ration 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 G
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 H
and availabi~ty of any artfole or thing at fair prices, it may, by order.
•' . 372 SUPREME COURT REPORTS "[1984) 2 s.c.R,

A provide . for rcgulati~g or Jirohibiling uic production, manufacture.
0

supply and di.stribution. use and cc;nsumptio·n· of articles or things
and trad\' and co111merce therein or for preventing any corrupt practice
or abuse' of autho.rity in respect of any·sueh. 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 minin~um 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
c ·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
D 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 noti-
lication 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 disp~ted 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 Gp-
ernment 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
G fertilizer carried ov~r 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
H exercise _or"ihe power conferred by sJ(lj of the Essential Commodities
.
Act 1955. and the State Government's impugned notification dated
. ' ..
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 A
made in exercise of the powers conferred by. s.3(1) of the Defence of
J'ndia Act; 1971 relate to -the same comm 0dity, 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 B
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 impug~ed notification dated 14.6.1974 of the State
Governm~nt cdrt apply only to- the State· of Uttar Pradesh. ·

The appellants' attack on the impugned notification is two-fold. c
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 is~ue the
notification under the Defence of India Rules in respect of an essential
commodity, fertilizor, covered by the Central Government's notifica- D
. 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
app~aring 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 E
'
respo~dents in all, the appeals natur~lly 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 F
,_ -~·
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 sub-
mission 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 .ferli-
ljzer carried over from the st0ck held· at theclo;e cf 31.5c1974 at G·
the new enhanced rate of Rs. 2000 per ton fixed in the Central Gov-
ernment's notification dated 1.6.1974 and that it is. discrimina_tcry'
against the_ private dealers who are required by the impugned notifica-
tion 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
H
a direction was give·n by the State Government, Mr. Yogeshwar

•
374 SUPREME COURT REPORTS [1£f 1· 2 S.C.R.

A Prasad invited attention to' the first sentence in the radiogr~m 23.7.1974
0

issued by .the ChieJ Secretary to the Government of Uttar Pradesh.
That sentence 'reads as follows : "All stocks of fertilizer available
with ASO, AGRO Cooperatives and Cane Unions be distributed
without any condition regarding purchase of fertilizers atntw rates';.
It is not possible to make out. what exactly was intended to. be con-
B veyed 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 Govern-
ment'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
D 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 conten-
tion 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
E ·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

F
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 con-
••
tention that there is no basis for the contention that there is any
discrimination a·gainst 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
H considering this quesiion the fact that the notification was .issued by
the State. Government with the. object of preventing dealers in the State

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

of Uttar Pradesh from driving undue excessive profit from agricultural A
consumers in respect of the fertilizer which had been purchased by the

r
·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 issu·e
the notification. The questfon is whether ·the State Government B
• 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 rna~e 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 c
• 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 obj~ct 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 Sub- H
section (3) of 's. ). saves anything duly done under the Act as if the

'
•
376 •. SUPREME COURT REPORTS [i 984]•2 s.c.R.
A ··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.
B . ... •
The Defen~e of India Rules, 1971 had been 'issued iri exercise·
.. • of the powercoi1ferred l:iy s.3 of the Defence of India Act, 1971. Under

1
Rule .114(2) of thqse Rules; if t)1e. Central Government or· the State .
Government.is of opinion that·it is necessary or expedient. so t~ do. · )
c for securing·the defence of India .and civil defence, the efficient conduct ~·
of military operations or the maintenance or increase of supplies and ·
services essential to the .life of the community or.for securing the ..
.• . 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-
D . tion of articles or· . things and trade and com~erce 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,_· •.
F / ' . . .
The Central Government had already. assumed· power' under!
· the· Essential Commodities Act, 1955 tO control the prfee of essential f
CoJllmodities. includi~g-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 the·price of •. -
H the same essential commodity under the Defence .of India Act, 1971 .•
w~ich came about 16 years l.ater. ·Therefore, the conlenticn cf Mr.

.
' .. ,
•
• RAMCHANDRA MA\\'ALAL v. u. P. STArn _(Varadarajan,J.) ·377
•
-Govindan Nair that the Essential .Commodities Act, 1955 is a special A
enadmerit relating to only essential commodities an!i the Defence. of
'-1. ·India' Act, 1971 is a general enactment relating to .all other commodi~
I 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 h~s to b~ acce~ted. 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
be. done with equal force under the Essential Commodities Act .a.nd
C
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 0 fthe ·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 Co~modities 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- E
. 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 F
military. operation or for'. securi~g ·th~ equitable distribution and
availability of essential commodities at fair prices or distribution
ther~of. 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- · G
• 0
stance to be t.aken into'a ccount 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 H
that Act lays dowri .that the Central Government may, ha.ving regarg

•
378 SUPREME COURT REPORTS (1984] 2 S.C.•!L
•
A
·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 Gov~rnment fo act under s.3(2) of the Essential Commodi-
ties 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.
B 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
,,
\:~
·1<

of that Act shall, in relation to such matters and subject to .such co·n~ • f ..
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
c 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
•
-
.II
to the provisions contained in s.3(2} or s.~(b) of the Essential Commo-. .,..
D 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 essen-
tial commodity.
. •·
..
Section 6 'of the Essential Commodities. Act, '1955 saves any
E order made mider s.3 of that Act from the impact of any other enact-
ment. .It is not possib]e· to accept the c~ntention that the- other Act
or enactment referred to in s.6 of the Essential Commodities Ac(

-
I
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.
..
F
· 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 any-
thing inconsistent the'rewith contained.· in any enactment other than .
that Act or any ins~rument 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
•
G of that Act or any Rule niade thereunder or any ord~r 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
H 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 Com-
modities 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 unaccept-

-
able 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 w~s 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 · ·· ' · ·
E
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 Parliam~nt 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· G
. 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
380. '.
. SUPR~ME COURT REPORTS · [198412 s.c.R.-
·,

List contains· any provisi0n repugnant to the pro~isions of
an earlier law !)lade·. by Parliament or an existing law :with
respect to that matter, then, t_he·Iaw, so made by the Legisla-
ture of _such State shall, if "it has been reserved for tJ1e con-
sidera!ion of the President"and has received his assent, prevail
in that State :
B' ' ~ ".
Provided that nothing in this clause shall ·prevent Par-
_liament from enacting at any time any law with respeci to
the same·matter including a law adding to, amending, varying·
or repealing the Jaw so made by the Legislat11re of the.State."
.
. c There is nothing :on record to show that the impugne(I notifica-
"-:
tion 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.

D 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· Cent~al 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
E the fact that fertilizer is an ·essential commodity under the_ Essential
Ccimmodities Act, 1955 in observing and that what tl{e Central Gov-
ernment ·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
, F. ~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~ '.•
G made under the Defence of fodia Rules, 1971 in respect_.of which
the Central Government had already 'fixed the iJrtce under the Fer-
tilizer (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 is~ued in exercise
H of ti\e delegated· authority under the Defence of India Act and the
Rules framed thereunder cannot prevaii. The Two enac_tments have

•, .
.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 St~tute Law (seventh edition) at page 222 :
.A

•
"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/yl 11 .
... Romilly M.R. stated ·as follows what. he considered to be
the rule of. construction under such circumstances. "The . .C •·
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 compre-
hensive sense, wouH over rule the forme;., the ·particular enact- D
. 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 ; E
"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 inten-
.
ded to·
.
contradict himself, the Court
. .
will -endeavour.
to \ con-
strue the language of the legislature in such a· way as to F
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 pro-
ceedings in a Country Court shall be in the discretion .of the
Court."
·. It
(I) (1859) 76 Beav .. 606.
•
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382 SUPREME COURT REPORTS [l984] 2 S.C.R.

.A . · One way in which rewgnan~y can be avoided is bY
regarding two. apparently conflicting pr~iohs _as dealing
with distinct matters .oi' situati~ns."

There -will be clear conflict between the .two notifications _if it
is understood that the State Government also can_ fix the price of
B 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· f·
that the Essential Comm~dities Act, l 955 and the Fertilizer (Control). ~-

c
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
D 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 i10tifica-
tion of the Central Government will ·become otiose. The question
• is whether Parliament would have intended such a consequen~e .
E 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) -f '
. mentions "articles or things of any· description whatsoever",
•
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In Municip.al COrPoration of Del/ti v.. Shiv· Shankar 111 ·it ts
observed:

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.

•
•

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

!ency exists betwe.en them; The meaning, scope and effect A
of the two statutes, as discovered on scrutiny, determine
the legislative intent as· to whether the earlier law shall cease
or shall only be s~pplemented. 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-· B
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 possi~le, be construed to. be in harmony with
·each other and it is only . when there is ·an· irreconcilable
.
.I
\ ·conflict between the new provision and the prior statute
relati11g to the same subject rnat.ier, thai the former, being
c
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, D
an essentiat commodity, and the Defence of lndia Act, 1971 and the
Defence of India Rules, W7 J are considered to apply to other com-
modities 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, there-
E
fore, 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 Am~idas v. The State.of Bombay<ll· · · ' · · .. F
•
''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 G
• is identical with thai of the earlier, so that they cannot both
stand together, then the earlier is repealed by the later enact-
ment, wiJJ be:equally applicable to a question under article
254(2) whether the further Jegisla}ion by. Parliament is in
H
(1) [1955] J S.C.R. 799.
•
'•

384 . SUPREME COURT REPORTS [1984) 2 S.C.R.
.
A 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, con-
sidered 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
c 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 'f.
D . of 31.5.1974 and thaf it is intend~d 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.s~le stibseq\lently. What has b~en done by° the State Gov-
ernment 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
ot 31.5.1974. and was intended to benefit and. protect a"gricultural
0

consumers and' p·revent 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 impug~ed notificatioli. The District Magistrates concerned.
shall return the. n;ionies deposited with them by the dealers pursuant

•

.·
· RAMCHANDRA MAWALAL v.
'
u: S'{ATE°(Varadarajan, J.)
p.
.
3~5
tq. this Court's orders dated :2.9.1974 and 30.IOJ974. The respondents A
II\ 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 appel-
lants. · · ·. · . . _ " . : .. . · · '
B
RS.K. Appeals dtsmiSsed.

•
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...
•

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...
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