U.P. Singh, J.
1. All these writ application involve a common question of law. They have been heard together and are being disposed of by this common judgment.
2. In C.W.J.C. No. 8 of 1980IR), the petitioner is a Government company registered under the Indian Companies Act, being a subsidary to Coal India Limited, within the meaning of the Companies Act, 1956. The petitioner is a mining lessee in respect of various coking coal and noncoking coal mines nationalised under the provisions of the Coking Coal Mines (Nationalisation) Act, 1972 and Coal Mines (Nationalisation) Act, 1973. The petitioner is a producer of Coal and the disposal thereof is made in accordance with the controlled price of the Central Government in order to meet the requirements of the country. In the premises aforesaid, the petitioner has been carrying out their duties and obligations under various Acts and Statutes.
3. In so far the petitioner's Tata Iron and Steel Company Limited (C. W.J. C. No. 627 of 1978) C.W.J.C. No. 874 of 1985(R) and Indian and Steel Company Limited (C.W.J.C. No. 96 of 1980(R) are concerned, the said companies primarily produce coal for their consumption and they are generally engaged in carrying the business of coal.
4. The Orders contained in Annexures 7 and 8 are impugned in C.W.J.C. No. 8 of 1980(R) which apply to all the petitioners.
5. The Bihar Coal Control Orders. 1956 has since been repealed and replaced by Bihar Trade Articles (Licences Unification) Order, 1984. Although the constitutionality of the aforesaid order has been challenged in these writ applications, but the challenge was confined with regard to the applicability of the said in relation to 'owner of the collieries', so far the their production and dealing in coal is concerned.
6. The history of legislation, so far as dealing No. 8 of 1980(R) and in order to appreciate the contentions it is necessary to notice the same.
7. Under Section 2(2)(xx) of the Defence of India Act, the Central Government was empowered to make Rules for control of any trade or industry with a view to regulation and distribution of any industry etc. for the supply of essential commodities. By Section 2 of the said Act the Central Government was empowered to frame appropriate Rules for regulation and distribution of commodities essential to the community. The Defence of India Rules were thereafter made by the Central Government purported to be under the Defence of India Act. Under Rule 81(2) of the Defence of India Rules, 1939, the Central Government, as also the provincial Government were authorised to make orders for regulations, distribution, etc. of essential commodities and Rule 81(4) penalised contravention of such orders. The Central Government, in exercise of the powers conferred upon it by Sub-rule (2) of Rule 81 of the said Defence of India Rules, made as order known as Colliery Control Order, 1946. Under the aforesaid Colliery Control Order, the distribution and supply of coal was controlled and necessary permission has to be obtained from the coal controller for distribution and supply of coal raised from the colliery.
8. After the end of World War II, emergency ceased from 1-4-1946. By virtue of Section 1(4) of Defence of India Act, 1939, the said Act ceased to operate after six months i.e., after 30-9-1946. It appears that by virtue of the powers conferred upon the India (Central Government and Legislature) Act, 1946 the Essential Supplies (Temporary Powers) Ordinance 1946 was promulgated which was later on repealed and replaced by the Essential Supplies (Temporary Powers) Act, 1946. Under the provisions of the Essential Supplies (Temporary Powers) Act, 1946, many orders were passed or deemed to have been made. The Governor General extended the period during which Indian Legislature was empowered to exercise powers referred to above up to 31-3-1948. Prior to 31-3-1948 the Indian Independence Act was there and the Governor General issued the Adaptation Order which amended Section 4 of the Indian (Central Government and Legislature) Act, 1946 and added Section 4A. The Constituent Assembly was empowered to extend the period mentioned in Section 4 of the above Act. The Essential Supplies (Temporary Powers) Act, 1946 remained in force till 26-1-1955 when the Essential Commodities Act, 1955 was passed by the Parliament and received the assent of the President on 1-4-1955. The aforesaid Colliery Control Order, 1945 was purported to have been continued under the Essential Commodities Act, 1956. Section 3 of the Essential Commodities Act confers a jurisdiction upon the Central Government to delegate such powers to the State Government or any other authority. Violation of any order made under Section 3 of the Essential Commodities Act is punishable under Section 7 of the said Act.
9. Colliery Control order defines 'Colliery' as meaning a mine or open working where getting of the coal is principal object of mining, quarrying or other operations and included a plant for the production of coke or for the washing of coal. Clause (4) of the said order envisaged the Central Government's power to fix price from time to time which price coal may be sold by colliery owners. Clause (5) thereof prohibited colliery - owners from selling coal at different prices.
Clause (7) thereof required that all colliery owners engaged in the business of production, supply and distribution or trade or commerce, should submit to the Coal Control such returns and other information in such form and within such time as may be specified in the notice.
Clause 8 envisaged that the Central Government's power to give directions to any colliery owner regulating disposal of stock of coal or of the expected output of coal in the colliery during any period.
Clause 9 prohibits disposal which is not in accordance with the said directions or is in contravention thereof.
Clause 10 permitted the colliery owners with prior permission of the Central Government to stock coal on Government account, which is not covered by the direction under Clause 8.
Clause 10A required that the disposal of coal should be in accordance with the order of the Coal Controller and the Coal Controller's right to pass orders from time to time in the matter of disposal of coal by a colliery producing the same.
Clause 11 empowers the Central Government to issue direction, as it thinks fit, to any colliery owner, prohibiting or limiting the mining or production of any grade of coal and the colliery owner shall comply with the directions.
Clause 12A requires that the Central Government by notification in the official Gazette will specify authorities to allot quota of coal to any person or class of persons and every such authority shall allot such quota and subject to such instructions as the State Government may issue from time to time.
Clause 12B provides that persons who have been allotted coal from the colliery shall not use it otherwise than in accordance with the conditions contained in 'the order 'of allotment. Clause 12E provides that no person shall acquire or purchase or agree to purchase any coal from any colliery and no colliery owner or agent shall despatch or agree to despatch coal from his colliery except under an authority made in accordance with the conditions contained in a general or special authority of the Central Government.
Clause 12G, as incorporated under the notification dt. 12-9-1975 provides that notwithstanding anything contained under Clauses 12A, 12B and 12E, from 15-9-1975, any person may without any order or allotment or authority, acquire or purchase or agree to acquire purchase or despatch or agree to despaton or transport or divert or transfer hard coke produced from beehive ovens, country ovens, and bye-product oven, provided the said coke is consumed in Inida.
10. In the year 1952, the Parliament enacted the Coal Mines (Conservation and Safety) Act, 1952. The said Act came into force with effect from 4-3-1952. Necessary declaration as to expediency of control of the Central Government as contemplated under Entry No. 54, List No. I of the Seventh Schedule of the Constitution of India has been made under Section 2 of the Coal Mines (Conservation and Safety) Act, 1952. The said Coal Mines (Conservation and Safety) Act, 1952 defines Coal and Coking Coal separately in Section 3(c) and 3(d) thereof, which reads as follows ;
"2(c) 'Coal' includes coke in all its forms,: (d) 'Coking Coal' means such type of coal from which on carbonisation coke suitable in the opinion of the Board, for being used in metallurgical industries, particularly in Iron and Steel Industries can be prepared".
11. The Coal Mines (Conservation and Safety) Act, 1952 was amended by the Coal Mines (Conservation and Safety) Amendment Act, 1970 being Act No. 52 of 1970. By the said Amendment Act of 1970, several sections were added in the parent Act and several sections thereof were amended. By the said Coal Mines (Conservation and Safety) Amendment Act, 1970, the long title of the Coal Mines (Conservation and Safety) Act, 1932 was amended and the said long title for the words "safety in" the words "safety in development of were substituted. Section 1 of the said Coal Mines (Conservation and Safety) Act, 1952 was also amended by the said Coal Mines (Conservation and Safety) Amendment Act, 1970 and by virtue of the said amendment, the said Act is now known as "The Coal Mines (Conservation Safety and Development) Act. In the year 1956 the State of Bihar, in purported exercise of its power conferred upon it under Section 5 of the Essential Commodities Act, 1955 read with the relevant delegation notifications, made an order known as Bihar Coal Control Order, 1956. The State of Bihar in exercise of the powers conferred upon it under Clause 15 of the Bihar Coal Control Order, 1956, issued a notification bearing No. MP-08/65-SC-7919 dated 5-5-1965, thereby exempted every person from the provisions of Clauses 8, 9, 11 and 12 of the said order. The State of Bihar, again by notification No. MVT/08/65/SC5 dt. 3-1-1966 exempted every person from the provisions of Clauses 8,9,11 and 12 of the said Order in respect of soft Coke Grade III-non-coming coal, in exercise of its power under Clause 15 of the Bihar Coal Control Order. The aforesaid notification was issued in supersession of the earlier notification dt. 5-5-1965.
12. 'Coal', has been defined in Clause 2(a) of the Bihar Coal Control Order, 1956 and the said clause reads as follows:
"2(a). 'Coal' means coal received in the State of Bihar otherwise than against, the Central Government-quota and includes coke".
A 'dealer' in respect of coal, as denied in Clause 2(a) and in Clause 2(c) read with Clauses 5 and 6 of the Bihar Coal Control Order, 1956, do not and cannot include a producer of coal and this contention will be further fortified if Clause 2 Sub-clause (b) of the prescribed form for the licence for the sale of coal or stroage for sale of coal is taken into account. The clauses of the Bihar Coal Control Order, 1956 which are important and relevant for the purpose of this application are for the sake of convenience set out herein below :
"3. Prohibition of dealing in coal except under licence : No person shall after the elate of the publication of this order in the Bihar Gazettee carry on business or do any transaction which involves the purchase, sale, or storage for sale of coal except under and in accordance with the terms and conditions of a licence granted in accordance with this order by the Licensing Authority.
4. Application for licence : Every application for the grant of a licence under this order shall be made in form "B" to the Licensing Authority and shall be accompanied by a treasury challan showing that a fee of thirty rupees has been deposited in a Government Treasury to the credit of the State Government.
5. Grant of Licence : (i) On receipt of an application under Clause 4, the licensing authority shall, if he is satisfied that the application is in order, the application is of sound financial capacity, enjoys a good reputation and that there is a need for a dealer at the place where the dealer intends to carry on business as such, grant to the applicant a licence in Form 'A'. The licence shall specify the place or places which the licensee may carry on the business in coal and shall, subject to such conditions, exceptions, as the licensing authority may from time to time specify.
(ii) Every licence issued under this order shall be valid from the date of issue till the 31st day of Dec. of the year in which it is issued and thereafter be renewed for a further period of one year at a time. Application for renewal of licence shall ordinarily be made before the 31st Dec. of the year to the licensing authority together with the licence and treasury challan in original showing deposit of the renewal fee of Rupees thirty. If an application for renewal of licence is made to the Licensing Authority after the 31st Dec. but before the 31st January of the following year, a fine equivalent to half of the amount of renewal fee, and if made before the next 31st Mar., a fine equivalant to the amount of the full renewal fee, besides the application for renewal of licence for the year shall be entertained after the 31st March of that year "Subtituted by G.S.E 76 dt. 24-7-197l."
(iii) The Licensing Authority may, for good and sufficient reasons, grant a duplicate licence on an application being made to him by the licensee, accompanied by a treasury challan showing that a fee of Rs. 2.50 has been deposited in a Government Treasury to the credit of the State Government. The duplicate licence shall have the word 'duplicate' prominently written or typed thereon".
12A. On or about 17-10-1971 the Central Government promulgated an ordinance known as Coking Coal Mines (Emergency Provisions) Ordinance, 1971 whereby and whereunder Management of 214 Coking Coal Mines and a few coke oven plants, as mentioned in the schedule appended to the said Ordinance, vested in the Central Government free from all encumbrances. That the said coking Coal Mines (Emergency Provisions) Ordinance, 1971 was later on repealed and replaced by an Act enacted by the Parliament of India, known as Coking Coal Mines(Emergency Provisions) Act, 1971, which received the assent of the President of India on 23-12-1971. The Coking Coal Mines has been defined in the aforesaid Coking Coal Mines (Emergency Provisions) Act, 1971 in Section 2(c) thereof as follows :
"Coking Coal Mines is a coal mine in which there exists one or more seams of coking coal whether exclusively or in addition to any seam of other coal".
Section 2(k) of the said Coking Coal Mines (Emergency Provisions) Act, 1971 provided that words and expressions used therein and not defined but defined in the Coal Mines (Conservation, Safety and Development) Act, 1952 have the meanings assigned to them under the said Act. Section 2(1) of the said Coking Coal Mines (Emergency Provisions) Act, 1971 provides that the words and expressions not defined in the said Act but defined in the Mines Act, 1952 have the meanings respectively assigned to them under the Mines Act. Chapter 2 of the said Act provides for taking over management of the Coking Coal Mines by the Central Government. Section 3 of the said Act reads as follows : "3.(1) On and from the appointed day, the management of all coking coal mines shall vest in the Central Government.
(2) The Coking Coal Mines specified in the First Schedule shall be deemed, for the purpose of this Act to be the coking coal mines the management of which shall vest, under Sub-section (i), in the Central Government;
Provided that if, after the appointed day, any other coking coal mine is found, after an investigation made by the Coal Board, to contain coking coal, the Board shall make a declaration to that effect and on and from that date of such declaration, such mine shall be deemed, for the purposes of this Act (i) to vest in the Central Government; and (ii) to be included in the First Schedule, and thereupon the provisions of this Act, shall become Applicable thereto subject to the modification that for the words "appointed day", wherever they occur the words "the date of declaration made by the Coal Board under Sub-section (2) of Section 3" shall be substituted.
13. On or about 1-1-1972 the Central Government incorporated the petitioner company and handed over the management of the aforesaid 214 coking coal mines and the said coke oven plants in exercise of its power under the provisions of the Coking Coal Mines (Emergency Provisions) Act, 1971 and appointed it as custodian general in respect of the aforesaid coking coal mines and coke oven plants by an appropriate notification with effect from 12-1-72. Thereafter the Coking Coal Mines (Nationalisation) Act 1972 was enacted whereby and whereunder the 214 coking coal mines and a few coke oven plants were nationalised. The said Coking Mines (Nationalisation) Act, although received the assent of the President of India on 17-8-1972 but was given retrospective effect and retrospective operation with effect from 1-5-1972. Under the powers conferred upon it, the Central Government issued appropriate notification under Section 7 of the Coking Coal Mines (Nationalisation) Act, 1972 whereby the Central Government directed that the aforesaid 214 coking coal mines and a few coke oven plants shall instead of continuing to vest in the Central Government, vest in the Bharat Coking Limited free from all encumbrances. The said notification was also given retrospective operation from 1-5-1972 and the said company became a mining lessee under the State of Bihar in respect of the said coking coal mines as if a mining lease in relation to such coking coal mines have been granted to the petitioner, under the Mineral Concessions Rules 1960 the period for such lease being the entire period for which such lease could have been granted under these Rules.
14. The President of India, in exercise of his power under Article 123(1) of the Constitution of India, promulgated another Ordinance known as Coal Mines (Taking over of Management) Ordinance, 1973, whereby and whereunder the management of various coalmines, as described in the Schedule appended to the said ordinance, were taken over. The said Coat. Mines (Taking over of Management) Ordinance, 1973, was later on repealed and replaced by the Parliamentary Act known as Coal Mines (Taking over of Management) Act, 1973. The Parliament, thereafter, enacted the Coal Mines (Nationalisation) Act, 1973, whereby and whereunder various non-coking coal mines were nationalised. The Central Government by an appropriate notification issued under the aforesaid Coal Mines (Nationalisation) Act, 1973, directed that certain coal mines situated in the district of Dhanbad shall instead of continuing to vest in the Central Government shall vest in the Bharat Coking Coal Ltd. It would be evident that by virtue of or under the aforesaid notifications, the petitioner in C.W.J.C. No. 8 of 1980(R), became statutory mining lessee under the State of Bihar by virtue or and under the provisions of the aforesaid Coking Coal Mines (Nationalisation) Act, 1973. Thus a mining lessee in respect of various collieries containing both coking coal as well as non-coking coal as also collieries which contain both coking coal and non coking coal. M/s. Bharat Coking Coal Limited is also producer of soft coke and hard coke in its coke oven plants nationalised under the Coking Coal Mines (Nationalisation) Act, 1972 and the beehive coke ovens which were taken over by the said company being part of various collieries.
15. The applicability of the State Order has been challenged on three grounds :
(a) The production, prohibition and regulation of coal, as envisaged under Section 3(2)(a) of the Essential Commodities Act, 1955, is completely governed by the Colliery Control Order, 1945, which although was initially made under Rule 81(2) of the Defence or India Rules, has been continued in terms of provisions of Section 16 of the Essential Commodities Act, 1955 and, as such, would be deemed to be an order made under Section 3 of the Essential Commodities Act, 1955. The Colliery Control Order, 1945 covers the entire field from production to consumption, as would be evident from various provisions thereof. In this connection reference may be made to the decision of the Supreme Court in the case of Singareni Collieries C Ltd. v. Commr. of Commercial Taxes Hyderabad, AIR 1966 SC 563 at para 9. Wherein this aspect of the matter has been considered. In the event if it be held that the entire field is covered by the Colliery Control Order, 1945, which is a Central Order, question of the State Order being applicable to the same does not and cannot arise.
(b) In the alternative, it is submitted that whereas the Colliery Control Order covers the field from production to consumption, Bihar Coal Control Order merely covers dealing of coal only. From the chart it would be evident that provisions of Central Orders and State Order are overlapping and it is an elementary principles of law that, in the event, provisions of two orders are overlapping the State Order should give way to the Central Order. In order to appreciate the points raised, it is necessary to reproduce the chart:
Colliery Control Order, 1945 The Bihar Trade Articles (Licences Unification) Order, 1984.
The Bihar Essential Commodities (Price & Display) Order, 1977. __________________________________________________________________
1. Subject : Entire Coal in India Cl.I. 1. Subject : Coal in Bihar.
2. Permission to deal : Cl. 12E, 12F, 12G, Cl. 16 2. Permission to deal (licence) : Cls. 3, 21 (1984 Order)
3. Disposal : Clauses 8, 9, 10, 11, 12A, 12C, 12D. 3. Disposal : Cls. 12, 19, 21 (1984 Order Cls. 4(b), 5 (1977 order)
4. Production : Cls. 11, 14, 14A. 4. Production : Cls. 3, 3(2); 4(4); 8(3); 9; 18; 19.
5. Price Control : Clauses 4, 5, 6. 5. Price Control : Cl. 16 (1984 order/Cls. 3, 4 (1977 order)
6. Information and Return : Cl. 7 (Colliery Owner & all persons Cls. 12D(1), (2); 3(i) 6. Information : Cls. 21, 24 (1984 Order)
7. Inspection & Entry : Cl. 13(ii)(iii) 7. Inspection & Entry : Cl. 301984 Order)/ Cls. 6, 7 (1977)
8. General : Cls. 16 and 17. 8. General : Cl. 25.
9. Categorisation : Cls. 3, 3A 9. Categorisation :
10. Suspension of Production : Cl. 14A. 10. Suspension of Production : Cl. 12.
In this connection, reference may be made to the decisions reported in AIR 1964 SC 1284; AIR 1972 Ker 97; AIR IPS Raj 78 and, 1985 Cri LJ 1230 (Delhi). From a perusal of the aforesaid decisions it would be evident that it has been held that where the Central Order operates even in a field covering the entire subject, any State order made covering a particular subject but making an attempt to encroach upon even a part of the field has been declared to be ultra vires.
(c) From the delegating notification issued by the Central Government, as contained, in Annexures 10, 11 and 14 of the CW.J.C No. 8 of 1980 (R), as also the notification dt. 30-11-1974, which is exact in terms to the notification dt. 18-6-1966, it would be evident that the State Government has been exercising the power of a delegatee alone. From a comparision of various provisions of the central order and the State Order, it would be evident that the provisions of the State Order are wholly inconsistent with each other; particularly, in view of the fact that the petitioner as the owner of collieries is bound to comply with the directions made by the Central Government and/or the Coal Controller, made from time to time not only in relation to the direction relating to allotment and supply of coal but also the price as also prohibition and/or regulation in relation to production thereof. The State Order as amended also confers an authority upon the Deputy Commissioner, which includes various other officers to give a direction to a dealer with regards to various matters which may, if complied with, would directly be in conflict with the. Central Order. A owner of the Colliery may find itself in a position that if two orders are made applicable then they would be subject to control by two different authorities viz., the authorities of the Central Government and authorities of the State Government. Such directions by respective authorities may not only be contrary to and inconsistent with each other but compliance with the one may lead to violation of the direction given by the other. As for example, whereas under the Bihar Trade Articles (Licences Unification) Order, as amended by G.S.R. No. 47 dt. 17-10-1985, the District Magistrate may requisition stock of trade articles and direct a dealer to sell to the State Government or to any person or class of persons the whole or specified part of stock at such price and in such manner as may be specified by the Collector (Vide Clause 19 thereof), the same power has been conferred upon the coal Controller under various provisions of the Colliery Control Order, 1945, as for example Clauses 11. 14, 14(a) (relating to production) Clauses 9, 10, 11, 12(a), 12(c), 12(d) relating to disposal and Clauses 4, 5 and 6 relating to price.
16. By reasons of the notification, as contained in Annexure 14 aforesaid and the similar notification dt. 30-11-1974, it would be evident that all the earlier delegating notifications namely, Annexures 10 and 11 would be deemed to have been repealed and the orders made by the State Government will be deemed to be made under the aforementioned notification i.e., Annexure 14 and the notification dt. 30-11-1974. From a perusal of Clause 3 of the aforementioned notification, it would be evident that an embargo has been clearly imposed upon the State to make an order which is inconsistent with the Central order. By reason of the decontrolling notifications issued by the Central Government from time to time, coal has been decontrolled, except the coal required for metallurgical purposes, as would be evident from Annexnres 12, 13, 15 and 16 and by the sard notifications the Central Government has authorised owners of the collieries to deal in any manner they like, the coal and coke mentioned therein, whereas, if the State order is made applicable, colliery owners would still be subject to the restrictions imposed thereunder as also the restrictions imposed under the conditions of licence. There is thus a clear inconsistency between the Central order and the State Order and in view of delegating notification, it is evident that the State cannot be said to have any jurisdiction to make any order whatsoever, which would be inconsistent with the order made by the Central Government.
17. It is well settled principle of law that a delegatee takes the power from a delegator and if the delegator imposes any condition, the delegatee has to take the delegate subject to the conditions mentioned thereunder or not at all. As condition No. 3, referred to in Clause 14, clearly puts an embargo upon the power of the State Government to make an order the State order must be held to be ultra vires in the event if it be held that the same applies to the petitioners also, who are owners of the collieries. From the various provisions of the constitution as also the intent and purport of the Parliament as envisaged under various Acts namely, Mines and Minerals (Regulation and Development) Act, 1974 as also the Coking Coal Mines (Nationalisation) Act, 1972 and the Coal Mines (Nationalisation) Act, 1973, it would be evident that the Parliament has taken under its control the entire legislative power and in that view of the matter, the power of the State Government to make any legislation in relation to the same is completely denuded. In this connection reference may be made to a decision reported in the case of State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284; AIR 1970 SC 5436 and the recent unreported judgement of the Hon'ble Supreme Court in the case of I.T.C. v. State of Karnataka.
18. If the State has no power to make any legislation in relation to the clauses mentioned therein it is evident that it has no power to exercise the same power under a delegated authority, as it is a well settled principle of law that a thing, which cannot be done directly, cannot be allowed to be done indirectly and by applying rule of pith and substance such exercise of power in an indirect manner is clearly an act of fraud on the Constitution. Even from a perusal of the said order, as amended by S.O. 47 dt. 17-10-1985, it would be evident that in relation to coal the said order cannot have any application so far as owners of the colleries are concerned. Owners of the Collieries neither come within the perview of definition of coal dump holders or coal agents or coal dealers, whereas under the Bihar Trade Articles (Licences Unification) Order, 1984, Clauses 2(p) and 2(u) refer to wholesale dealer and retail dealer. By reason of S.O. 49 dt. 17-10-1985 a third type of dealer has been created viz., coal dealer, which itself is ultra vires the main order.
19. From the forms appended to the Unification Order as also the amendments made therein by S.O. 47 and the Storage Control Order made under S.O. 49, it would be evident that it is impossible for the colliery owners to comply with the provisions thereof. As for example, Form 'C' of the said order, cannot be complied with as Bharat Coking Coal Ltd. is owner of more than 300 collieries and have officers at various places throughout India. As the working in a colliery is carried out for 24 hours a day, the question of opening stock of each day or the quantity received on each day, showing the source and place wherefrom it has received, which is done in terms of Clause 3(a) of Form 'C' are wholly impossible to be performed by the colliery owners as it is receiving stock from its collieries and not any other source. As the production goes on for 24 hours a day, question of quantities receiving on each day from other sources does not and cannot arise. As further the production is contnuous, it is not possible to keep a stock register from minute to minute in quintals or Kgs. as is required under Clause 3(c) of the aforementioned form nor is it possible to complete the entries before beginning of the transactions on the following day for the self same reasons. From Clause (e) of form 'C' it would be evident that had the intention of the State been to apply the order in relation to coal also, the coal would have very well been inserted in Clause 3(e) of form 'C' which specifically deals with only producers of foodgrains, whole puises and edible oils. The very fact that coal has not been included and other commodities have been included is clear indicator that it is not applicable in relation to a producer of coal.
20. By reason of the conditions of licence as also the said order, a dealer must sell to a person who comes forward to purchase a commodity, whereas in the instant case either such restrictions have been taken away in relation to certain grade of coal by the Central Government in terms of the notifications issued under the Colliery Control order or such sale is controlled and regulated by the coal Controller under provisions of the Colliery Control order. An owner of a colliery, therefore, cannot also comply with conditions of the licence and various provisions of the said order. The State Order will have no application in relation to the petitioners would further be evident from the fact that a coal dump holder has to be appointed by the state of Bihar and such coal dump holder is to receive coal from the collieries on the basis of the allocations made by the Government i.e. State Government for sale to retail dealers. The petitioners being producers of coal can neither be authorised to become coal dump holder nor it is conceivable that they would take supply of coal from themselves. It is further inconceivable that the petitioners would sell coal only to retail dealers in asmuch as it is to supply coal throughout the country and particularly to specified industries including steel industries.
21. So far as price of coal is concerned, under the State Order, they have to display retail price, which obviously would be in excess of the price fixed by the Central Government, by issuing notifications under Clause 3 of the Colliery Control Order. Whereas, the petitioners are to sell coal on the prices fixed by the State Government, it cannot comply with the display order which it is incumbent upon the dealers to do, in view of Clause 15 of the said order as amended by S.O. 47 dt. 17-10-1985. As submitted heren before, Clause 19 of the State order as amended is wholly repugnant to the provisions of the Colliery Control Order, inasmuch as if two different directions are given to the colliery owners, they would be inconsistent and contradictory to each other and it would be impossible for the petitioners to comply with both of them simultaneously. In any event, in view of difference of price, mode of transport as also allocation of coal to various industries including Steel Industry by the coal Controller, colliery owner cannot be forced even under the conditions mentioned in Clause 19 to comply with the direction of the Collector to sell coal only to the State Government and at such price and in such manner as may be specified by the Collector, but, by reason of definition in Clause 2(c) includes, various officers.
22. From a comparison of the State Order and the Central Order it would be evident that whereas the Central Government acting through the Coal Controller has knowledge which cannnot be attributed to the State Government particularly to the licensing authorities, whose jurisdiction is limited to the sub-divisions of a district only. The coal Controller would have necessary information with regard to requirement of coal, particularly grade of coal and other relevant matters in relation to each industry and each State, which is not expected nor it is permissible that the same power would be exercised by an officer even of the rank of a Sub-divisional Officer.
23. It is well settled principle of law that if it be held that State Order has application in relation to the colliery owner also, from facts as stated herein before it would be evident that it would be impossible for the colliery owners to perform their obligations under the State Order and/or under the conditions of licences issued by the District and Sub-divisional authorities. In the event if it be held that in spite of the fact that it would not be possible for the colliery owners to perform the obligations laid down under the statute in view of the maxim lex non cogit ad impossibilia, if it would be insisted upon, it would be clearly violative of Articles 14, 19 and 245 of the Constitution of India.
24. From the delegation notifications it would further appear that no delegation has been made with regard to production of coal. Production of coal, however, may be prohibited or regulated in terms of Section 3(2)(a) of the Essential Commodities Act. In the inrtant case, regulation and prohibition will have different meaning as both the words have been used together. In this connection reference may be made to Maxwell's interpretation of Statutes page 282, AIR 1979 SC 1459. Reference may also be made to a decision reported in the case of Suraj Bhan Pande v. State of U.P., AIR 1969 All 560 and other decisions referred to hereinbefore, wherein it has been held that even the storage restriction may amount to prohibition. It is not permissible in relation to the collieries.
25. It may further be pointed out that the State order has to be strictly construed as it is not an order which has been laid before the Parliament and the delegatee under an Act to make an order, particularly by reasons of delegating notifications must be kept confined within the four corners of the powers delegated to them to make an order and they cannot be permitted to travel beyond the same : See AIR 1986 Calcutta (sic), AIR 1960 Cal 577. In the event if it be held that by reasons of the State Order it could even encroach upon the field covered by the Central Order, it must be held that the delegatee has exceeded its power conferred upon it in delegation.
26. It has been held in a recent Full Bench decision that in order to bring a person within the definition of a 'dealer' he must ordinarily be engaged in carrying out business in that commodity, occasional sale or sale per force shall not bring the said person within the mischief of the definition of 'dealer' vide 1985 Pat LJR 167 : (1985 Tax LR 2909) (FB). In the instant case from the notification issued by the State Government bearing No. S.O. 49 dt. 17-10-1985, it would be evident that a coal dealer has been defined in the following terms.:
'"Coal dealer' means a person, who, at any time purchases stocks of coal for purchase, sale or storage, for purposes other than personal consumption in a quantity exceeding ten quintals."
The words purchase, sale or storage should be used ejusdem genrria and a producer of coal does not purchase coal, so far as the aforementioned companies are concerned as purchase or storage is for their own personal consumption and they occasionally made sale of some inferior quality of washery products they cannot come within the purview of the definition of a coal dealer. Further, as has recently been held by a Full Bench of this High Court in C.W.J.C. No. 1530 of 1988(R) (reported in AIR 1986 Pat 242), that slurry, sludge etc. which are products of a washery, being industrial effluents do not come within the purview of definition of 'Coal' or Mineral.
27. The orders as contained in annexures 7 and 8 of C.W.J.C. No. 8 of 1980(R), impugned in the writ application, have been passed, which applies to all the petitioners, on the basis of opinion of the Government pleader and the opinion of the Law Department. The orders so passed are themselves clearly vitiated in law, as they are based on the opinion and/or advice of persons who are not functionaries under the Statute, vide 1983 Pat LJR (HC) 92 and (1983) 1 Lab LJ 170 : (1982 Lab IC NOC 124) (Mad).
28. It may further be seen that in all the show causes filed, owners of the collieries prayed for a personal hearing. As for example, reference may be made to the show cause filed by the Bharat Coking Coal Ltd, as contained in Annexure 2 at page 87 of C.W.J.C. No. 8 of 1980(R) relevant paragraph is para 3 at page 107 and Annexure 4 at page 47 in C.W.J.C. No. 627 of 1978(R), No opportunity of being heard having been given to the petitioners same is violative of the principles of natural justice. Said orders are also non-speaking orders.
29. It may further be pointed out that the Bihar Coal Control Order has not been applied in relation to the owners of collieries, although prior to coming into force of the Coking Coal Mines (Nationalisation) Act, 1972 the collieries were being operated by private persons. Statements made to this effect in the writ petition have not been contradicted by the State. It is now well settled that if a Statute has not been given effect to for a long time, the said Statute for all practical purposes, is dead and cannot be given effect to after a period of 20 years or so. Reference in this connection may be made to Craies on Statute Law 7th Edn. 406 and Brooms Legal Maxims 10th Edition pages 593, 594 in which the decision of R.V. Kennedy, (1902) 86 LT 753 has been quoted with approval. In this connection reference may also be made to a decision of the Hon'ble Supreme Court, where the landlord was prevented from enforcing a Statute in his favour as against a tenant after a period of 22 years on the same grounds, vide (1984) 1 SCC 125 at page 136 : (AIR 1983 SC 1239 at p. 1245).
30. The contention raised by or on behalf of the State of Bihar is devoid of any merit, State has singularly failed to prove that the two orders do not operate in the same field and in any event are not overlapping with each other. The contention raised on behalf of the State of Bihar is that whereas in the State order a licence is required to be obtained, no such licence is required to be obtained under the Colliery Gontrdi order. From a perusal of the colliery Control order it would be evident that for each transaction i.e. transaction by the colliery owner to the del credere agent and the subsequent transaction by the del credere agent to the consumer are by authority or permits. The said permits or authorities are issued on the basis of orders of allotment issued by the Coal Controller from time to time. The words licence, authority or permit are merey words of Arts but they have been used for achieving selfsame purpose, meaning thereby for the purpose of regulating a particular transaction which may involve purchase or sale. A permit, authority or licence either in respect of each transaction or in respect of a series of transactions are needed for imposing reasonable restriction upon the trade.
31. By reason of Entry 33, List III of the Constitution Essential Commodities Act has been enacted for the purpose of regulation of trade or commerce. Both by reasons of the State Order as also Central Order, the purpose is to regulate trade or commerce. Whereas under the colliery control order, such trade, which includes production of coal is being controlled by the Central Government or through the coal Controller, by issuing permit or authority in respect of each and every transaction, a licence is required to be obtained under the State Order for a series of transactions which remains valid for one year.
The very arguments of the State demolishes its entire case, inasmuch as, as has been held in AIR 1964 SC 1296 that in the event there are two legislations covering same field and the legislation made by the State is more onerous than the same must give way to the Central Legislation.
32. The decision reported in 1985 Eastern Criminal cases 319 (sic) has no application whatsoever inasmuch as both the acts made by the State as also Central Government were under the same field, so far as Criminal Procedure Code is concerned, same being in the concurrent list, the State has a power to make a legislation irrespective of the fact that Central Government has already made a legislation in this regard. Particularly in this case Code of Criminal Procedure, 1973 was not in operation at any point of time in Sikkim.
33. Other decision cited on behalf of the State i.e. AIR 1983 SC 1019 also has no application in the facts and circumstances of the case. The petitioners have contended that the State Order is violative of Article 254(2) of the Constitution, inasmuch as Article 254(2) of the Constitution would apply only when there is repugnancy in the two legislations --one made by the Central Government and the other by the State Government and both the powers are exercised under the concurrent " list. In the instant case the petitioners have attempted to show repugnancy and/or inconsistency on the basis of the same Act viz. Essential Commodities Act. The State of Bihar, in making the State Order, has not exercised its legislative power but has merely exercised its power of subordinate legislation, which in turn by reasons of the delegating notifications issued by the Central Government, is in exercise of the powers conferred upon it under Section 5 of the Essential Commodities Act.
34. The Central Government, as a matter of fact, itself is a delegatee in terms of Section 3 of the Essential Commodities Act and by reasons of Section 5 thereof, it is only authorised to sub-delegate all or some of its powers in favour of the State Government or any other authority. In the instant case, therefore, provision of Article 254(2) of the Constitution cannot be said to have any application. In any event it has been held in the said decision itself that if the State Legislature ercroaches upon the field, which is fully covered by List I, the enactment made by the State would be completely ultra vires.
35. The other decision cited on behalf of the State, i.e., G. S. Sharma v. Deputy Commissioner, 1978 BLJR 609, cannot have any application whatsoever in the facts and circumstances of the case. The said case dealt with persons who used to purchase coal from the colliery owners and used to send it out of the State. They were clearly purchasing, storing and selling the coal. The contention raised in that case was that such dealers were not storing coal at a particular place but were selling the coal by railway wagons to their customers. The aforementioned decision is not an authority for the proposition enunciated hereinbefore that the said decision has bearing on the producers and particularly producers like the petitioners, who as stated hereinbefore, merely have been created for the purpose of giving effect to the scheme relating to production of coal, framed by the parliament in respect whereof excessive power has been conferred upon the State Government.
36. However, the said judgment cannot be said to have any application whatsoever inasmuch as in paragraph 6 of the said judgment, it has been mentioned as follows : --
"If provisions of two orders were operating in their separate fields and there was no question of encrochment over each other. This proposition is although widely stated, certainly does not cover case of colliery owners which would be evident from the fact that in para 10 of the said judgment it has been stated as follows-- By notification aforesaid (Annexures 1 and 1A) Central Government exempted restrictions in respect of each commodity under Clause 8 of the Central Order or might have been issued under Central Government quotas."
37. Clause 8 of the Colliery Control Order refers to the direction of the Central Government, which could also be issued in view of Section 15 by the Coal Controller or Deputy Coal Controller, mentioned therein, only to the Colliery owners. Clause 8(A) thereof also empowers the Central Government to issue directions to the Colliery owners.
38. From a perusal of the aforementioned judgment therefore, it is clear that if the exemption notification applies to the colliery owners, then certainly decision of the Division Bench of this Court goes against the contention of the State.
39. In the writ application it has clearly been mentioned, which is not controverted. Previously under the Colliery Control Order the quotas used to be allotted to the State. Government also. In view of the judgment aforesaid, Bihar Coal Control Order will have application only in relation to such coal, which was first allotted to the State of Bihar and then coal dealers. As allotment itself used to be made by the Coal Controller and/or the Central Government in terms of Clauses 8 and 8A by issuing directions in this regard to the culliery owners, question of applicability of the Bihar Coal Control Older in relation to the colliery owners does not and cannot arise. No coal was allotted to the owners of collieries either under the Central quota of the State quota but such quotas are allotted in respect of coal to be lifted from collieries : owners of collieries do not receive any quota whether State or Central. In any event now after the 1954 Under quota system has lost all its relevance and as such the aforementioned decision has no application. In this connection reference may be made to Annexare 9 at page 118, which clearly shows the coal received by each State in the year 1960 in terms of orders of allotment made under the colliery Coutrol Order, 1945. So also the statement made in paragraphs 74, 75, 76 of the Writ application as also paras 79 to 82 thereof. Similarly, now the State of Bihar intends to distribute coal by appointing coal dump-holders at present.
40. The very fact that the colliery owners are to be governed by the allocations made by the Central Government and/or the Coal Controller, in terms of Clauses 8 and 8 A read with Clause 15 thereof, there cannot be any doubt that the State Order, which according ' to the aforementioned judgment itself refers, to the quotas of coal allotted to the State of Bihar, cannot have any application whatsoever in relation to colliery owners. It may further be mentioned that the notifications issued under Clauses 12a, 12b and 12c of the Central Order are not merely exemption notifications but thereby colliery owners have expressly been authorised to make any sale, purchase, diversion, transfer, etc. and as such evidently such authority conferred upon them by the Central Government cannot be taken away by reason of the provisions of a State Order. The point of view which has been stated hereinbefore, particularly, scheme and object of various Central Acts as also comparison, clearly demonstrate that the two orders operate in different fields and in any event inconsistencies pointed out were not the subject matter of the aforementioned decision.
41. In the aforementioned case the producers of coal were not parties nor was it contended on their behalf that they are completely governed by the Colliery Control Order, 1945. Merely a passing reference was made to the exemption notifications, which cannot be said to have any bearing on the judgment, inasmuch as the Colliery Control Order having application in relation to the producers of coal, cannot be said to have any application to the persons who are dealing in coal after purchasing the same from the collieries or from other dealers. In particular, it may be stated that the scheme and purport of the Colliery Control Order that it covers entire field from producers till consumption has not been brought to the notice of the Hon'ble Judge and in particular, attention of the said Hon'ble Court was not drawn to the decision of the Hon'ble Supreme Court reported in AIR 1966 SC 563 at para 9.
42. In view of the judgment, an attempt has been made to interpret that it bears in relation to relevant control measures under Bihar Coal Control Order, 1956. After coming into force of the Bihar Trade Articles (Licences Unification) Order, 1984, there had been a great deal of change in the approach, even in respect of the State Order, which would be evident from the creation of different types of dealers viz. coal dump holders, coal agents, coal dealers. In view of the settled principle of law that a decision is an authority for what it decider and not what can logically be deduced from it vide (1900-1) All ER (Reprint) page 1 at para 7, which has been followed in numerous cases by this Court, particularly AIR 1943 Pat 194 (FB), 1985 Pat LJR 549 : (1986 Cri LJ 409), AIR 1978 Pat 298 at page 305 (SB). In that decision the Hon'ble Judges were not called upon to decide as to whether Bihar Coal Control Order has any application in relation to the producer of coal. Any passing reference to the exemption notification in that order must be held to be mere obiter and not a ratio : see Palem on jurisprudence 210 : Das on Jurisprudence 140. As the rule stated in the judgment obviously appears in relation to the fact of the present case, it is no more than a dictuim, and as the reasons given herein before to non-applicability of the State Order in relation to the colliery owners cannot be spelt out therefrom, the same cannot be treated to be a ratio dccidendi in order to be bound by ii. The aforementioned decision has no bearing to the facts of the aforementioned case.
43. Under the amendment order some clauses of the Bihar Coal Control Order have been sought to be revived. The same is non-permissible, in as much as by reasons of Clause 32 of the Unification Order, which came into force with effect from 19-4-1984, Bihar Coal Control Order, 1956 was repealed and once the said Statute was repealed it is a dead Statute for all intents and purposes and no life can be injuncted into by reason of an amendment in the Statute whereby the earlier Statute has already been repealed.
44. The aforementioned views of mine are buttressed by reason of the decision of this Court in the case of Black Diamond Industries v. Coal Controller and others reported in 1986 BLT (Rep) 127 : (AIR 1988 Pat 239), In the said decision it has clearly been held that the hard coke being a commodity, which is controlled in terms of the provisions of Colliery Control Orders, the same does not come within the purview of the Bihar Coal Control Order at all.
45. In the said decision the Division Bench followed the decision of the Supreme Court reported in Singrani Company's case (AIR 1966 SC 563) (supra), In the aforementioned decision the Division Bench clearly came to the conclusion that as the hard coke is a product of a plant it comes within the purview of the definition of Mine' the same is not covered by the provisions of the Bihar Coal Control Order, 1956 or for that matter Bihar Trade Articles (Licences and Unification) Orders, 1984.
46. The ratio of the aforementioned Division Bench decision applies on all fours in the present case inasmuch as in the instant case the petitioners are producers of coal from the coal mines belonging to them and in that view of the matter they cannot be said to be a dealer within the meaning of the provisions of Bihar Coal Control Order, 1956.
47. It may further be mentioned here that the aforementioned decision in Black Diamond Industries case (AIR 1988 Pat 239) (supra) has also been followed by another Division Bench of this Court in Tats Iron and Steel Company v. The State of Bihar(C.W.J.C. No. 1933 of 1986) disposed of on 12-11-1986.
48. In view of the aforesaid discussion, these writ applications are allowed but in the facts and circumstances of the case there will, however, be no order as to costs.