Prag Ice & Oil Mills & ANR Vs. Union of India [1978] INSC 43 (21 February 1978)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH (CJ) CHANDRACHUD, Y.V.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA SHINGAL, P.N.
SINGH, JASWANT DESAI, D.A.
CITATION: 1978 AIR 1296 1978 SCR (3) 293 1978 SCC (3) 459
CITATOR INFO :
R 1980 SC 738 (9) RF 1980 SC2097 (3) R 1981 SC 873 (30,68) R 1981 SC 998 (4) F 1983 SC 634 (22) R 1983 SC 937 (31) R 1983 SC1015 (9) F 1983 SC1019 (34) F 1984 SC 657 (17) R 1984 SC1130 (43) R 1985 SC1367 (37) RF 1986 SC1999 (11) R 1987 SC1802 (10) F 1987 SC2351 (7) R 1988 SC1737 (85) R 1990 SC1277 (40) E 1990 SC1851 (25) RF 1992 SC1033 (37)
ACT:
Constitution of India, 1950, Art. 31B read with Ninth Schedule-Scope and ambit of-Whether Art. 31B affords protection only to the Acts and Regulations specified in Ninth Schedule, or also to orders and notifications issued under those Acts and Regulations.
Constitution of India, 1950, Art 32 "Locus Standi" of 'dealers' to invoke the jurisdiction of the Supreme Court under Art. 32 and challenge the provisions of the Price Control Order as offending fundamental rights under Arts.
14, 19(1) (f) and (g).
Mustard Oil Price Control Order 1977 constitutional validity of-Whether it violates Arts. 14 and 19 (1) (f) and (g)- Whether it is open to such a challenge at all-Applicability of the doctrine of derivative protection.
Distinction between (a) "merely regulatory Order and those of price fixation or price control Order" under s. 3(2) (c) of the Essential Commodities Act, and (b) "protection to a mere grant of powers" and "exercise of that power", explained.
Price fixation, tests of-Courts cannot interfere with economic policies of the Government in cases of beneficial legislation.
HEADNOTE:
Sub-section (1) of section 3 of the Essential Commodities Act, 1955 which is placed in the Ninth Schedule of the Constitution, empowers the Central Govt. to provide by an order for regulating or prohibiting the production, supply and distribution-of an essential commodity or trade or commerce therein, if it is of the opinion, that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing its equitable distribution- and availability at a fair price. In exercise of the power conferred by s. 3 of the Essential Commodities Act, 10 of 1955, the Government of India in its Ministry of Civil Supplies and Cooperation issued on 'September 30, 1977 the Mustard Oil (Price Control) Order, 1977. The Price Control Order provided by Clause (3) that no dealer was either by himself or by arty person on his behalf to sell or offer to sell any mustard oil at a retail price exceeding Rs. 10 per Kg. exclusively of the cost of container but inclusive of taxes. Clause 2 defines a dealer to mean a person engaged in the ,business of purchase, sale, or storage for sale of mustard oil.
The Price Control Order was challenged in this Court by several dealers on the ground mainly, that it violated Articles 14. 19(1)(f) and 19(1)(g) of the Constitution, Art.
301 was cited but not argued upon with any seriousness.
Upholding the validity of the impugned Price Control Order and dismissing the appeals the Court,
HELD: Per majority The Mustard Oil (Price Control Order, 1977) is constitutionally valid. The impugned Price Control Order is not an act of hostile discrimination against the traders.
It does not violate their right to property or their right to trade or business. [319C; 331G] 294 Per Chandrachud, J. was he then was] (On behalf of Bhagwati, Murtaza Fazal Ali, Shirghal, Jaswant Singh, JJ. and himself).
1. On a plain reading of Art. 31 A it cannot be said that the protective umbrella of the Ninth Schedule takes in not only the acts and regulations specified therein but also orders and notifications issued under those acts and regulations. [320 C] (a) Art. 31-B constitutes a gave encroachment on fundamental rights, and though it is inspired by a radiant social philosophy, it must be construed as strictly as one may, for the simple reason that the guarantee of fundamental rights cannot be permitted to be diluted by implications and inferences. The Constitution which prescribes the extent to which a challenge to the constitutionality of a law is excluded, must be construed as demarcating the farthest limit of exclusion. Considering the nature of the subject- matter which, article 31-B deals with, there is no justification for extending by judicial interpretation the frontiers of the field which is declared by that article to be immune from challenge on the ground of violation or abridgement of fundamental rights; [320 D-E] (b) The article affords protection to Act and Regulation specified in the Ninth Schedule. Therefore, whenever a challenge to the constitutionality of a provision of law on the ground that it violates any of the fundamental rights conferred by Part III is ought to be repelled by the State on the plea that the law is placed in the Ninth Schedule the narrow question to which one must address oneself is whether the impugned law is specified in that Schedule. If it is, the provisions of Art. 31-B would be attracted and the challenge would fail without any further inquiry. On the other hand, if the law is not specified in the Ninth Schedule, the validity of the challenge has to be examined in order to determine whether the provisions thereof invade in any manner any of 'the fundamental rights conferred by Part III. It is then no answer to say that though the particular law, as for example a Control Order, is not specified in 'the Ninth Schedule, the parent Act under which the order is issued is specified in that Schedule; [320 E-G] (c) Extending the benefit of the protection afforded by Art. 31-B to any action taken under an Act or Regulation which is specified in the Ninth Schedule. is an unwarranted extension of the provisions contained in Article 31-B, neither justified by its language nor by the policy or principle underlying it. When a particular Act or Regulation is placed in the Ninth Schedule, the Parliament may be assumed to have applied its mind to the provisions of the particular Act or Regulation and to the desirability, property or necessity or placing it in the Ninth Schedule in order to obviate a possible challenge to its provisions on the ground that they offend against the provisions of part III. Such an assumption cannot, in the very nature of things, be made in the case of an order issued by the Govt.
under an Act or Regulation which is placed in the Ninth Schedule, The fundamental rights will be eroded of their significant content if by, judicial interpretation a constitutional immunity is extended to Orders to the validity of which the Parliament, at least theoretically, has had no opportunity to, apply its mind. Such an extension takes for granted the supposition that the authorities on whom power is conferred to take appropriate action under a statute will act within the permissible constitutional limitations, a supposition which past experience, does not justify and to some extent falsifies.
[321 C-F]
2. The un-holding of laws, by the application of 'he theory of derivative immunity is foreign to, the scheme of our Constitution and accordingly Orders and Notifications issued under Acts and Regulations which are specified in the Ninth Schedule must meet the challenge that they offend against the provisions of Part III of the Constitution. The immunity enjoyed by the parent Act by reason of its being placed in the Ninth Schedule cannot proprio vigore be extended to an off-spring of the Act like a Price Control Order issued under the authority of the Act. It is therefore open to the petitioners to invoke the- 295 writ jurisdiction of this Court for determination of the question whether the provisions of the Price Control Order violates Art. 14, 19(11)(f) and 19(1)(g) of the Constitution. [321 F-G].
Vasantlal Maganbhai Sanjanmal v. State of Bombay and Ors., [1961] 1 SCR 341, Latafat Alikhan and Ors. v. State of U.P., [1971] Supp. S.C.R. 719; Explained.
Godavari Sugar Mills Ltd. and Ors. v. S. B. Kamble and Ors.
[1975] 3 S.C.R. 585; Applied.
3. Price Control Order does not offend against Art. 14 of the Constitution [323 F] (a) The averments in the various Writ Petitions are far too vague and general to justify the application of Art. 14. The petitioners have failed to show by acceptable data that they fall into a separate class altogether, and cannot therefore be subjected to the restraints of a single order of price fixation. [323 H, 324 A] (b) Variation in economic factors governing the mustard oil trade from region to region or differences in the pattern of trade. in different growing regions and manufacturing centres cannot by itself justify the argument that different prices must be fixed for different regions and that failure to do so would necessarily entail discrimination. [324 A-B] (c) Dealers in mustard oil, wherever they operate can legitimately comprise a single class for the purpose of price fixation, especially as it is undisputed that the two basic constants of the trade are : (i) the cost of mustard seed constitutes 94 per cent of the cost of the mustard oil and (ii) about 3.12 kilograms of seed goes into the extraction of one kilogram of oil. Fixation of different prices for different regions will, in this background, frustrate the very object of the exercise that an essential commodity should be made available to the consumer at a fair price. [324 B-C] (d) There is no reliable, data to support the contention, that dealers in different regions are so differently situated in the context of and in relation to the, purpose for which the Price Control Order is issued that fixation of common price for dealers all over the country can reasonably be described as discriminatory as against some of them. [324 E] (e) The charge of over-inclusiveness for the mere reason that dealers in a certain region have to import their raw material from another region cannot be accepted. Perhaps the high rate of turnover and consumption in a region like West Bengal may easily absorb the additional cost of freight. The Government of India. in fixing one common price for mustard oil for the whole country, has not acted like Herod who ordered the death of all male children born on a particular day because one of them would someday bring about his downfall. [324 F-F] State of Gujarat v. Sri Ambica Mills Ltd., [1974] 3 SCR 760 @ 782 referred to.
(f) The mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. [325 B] Saraswati Industrial Syndicate Ltd. v. Union of India [1975] 1 S.C.R. 956. referred to.
4. The Price Control Order is not violative of the petitioners' rights under articles 19(1)(f) and 19(1)(g) of the Constitution. [326 G] (a) It is impossible to determine in these writ petitions the accuracy of the petitioners' allegation that they purchase mustard seed from month to. month and from week to week as the crushing of the seed progresses. Most of 296 the growers of mustard seed are small agriculturists who have hardly any staying ability and are therefore compelled to. sell their produce immediately after the harvesting season, that is to say, between March and June. If the prices of mustard seed prevailing during that period are taken into account, it is difficult to accept that the price of Rs. 10/- per kilogram is so patently unreasonable as to be violative of the petitioners' right to hold property or to do trade or business [326 G-H, 327 A] (b) Since the bulk of the purchases are made by the petitioners immediately after the harvesting season considering the general pattern of the trade in mustard seed, it is wholly unnecessary to control the price of mustard seed, in order effectively to control the price of mustard oil. [327 B-C] (c) The contention that the consequence of the Price Control Order cannot be looked at for the purpose of deciding whether the price of mustard oil was fixed in accordance with legally acceptable principles cannot be upheld. No Court can shut its eyes to the fact that the Price Control Order produced the salutary and tangible result of bringing down the price of raw material. [327 C-D] (d) A mere literal or mechanical construction is not appropriate where important questions such as the impact of an exercise of a legislative power on constitutional provisions and safeguards there under are concerned. In cases of such a kind, two rules of construction have to be kept in mind : (1) that Courts generally lean towards the constitutionality of a legislative measure upon the presumption that a legislature will not deliberately flout a constitutional safeguard or right, and that (2) while construing an enactment, the Court must examine its object and the purpose, the mischief it seeks to prevent and ascertain from such factors its true scope and meaning. [327 E-F] Vrajlal Manilal & Co. and Ors. v. State of M.P. and Ors.
[1970] 1 S.C.R. 400, 409, reiterated.
(e) The dominant purpose of the provisions of sub-section (1) and 2(c) of Section 3 of the Essential Commodities Act 1955 is to ensure the availability of essential commodities to the consumers at a fair price. And though patent injustice to the producer is not to be encouraged, a reasonable return on investment or a reasonable rate of profit is not the sine qua non of the validity of action taken in furtherance of the powers conferred by s. 3(1) and s. 3(2)(c) of the Essential Commodities Act. The interest of the consumer has to be kept in the forefront and the prime consideration that an essential commodity ought to be made available to the common man at a fair price must rank in priority over every other consideration. [328 A-B] (f) Even in the absence of satisfactory proof of the extent of the profits made by the petitioners in past years, the circumstance that the petitioners may have to suffer a loss over a short period immediately following upon the promulgation of the Price Control Order will not render the Order constitutionally invalid. The interplay of economic factors and the laws of demand and supply are bound eventually to. have their impact on the pattern of prices prevailing, in the market. If the dealer cannot lawfully- sell the finished product at more than Rs. 10/- per kilogram, the price of raw material is bound to adjust itself to the piece of the product. Subsequent events unmistakably demonstrate the effect of such interplay and the favourable reaction which the Price Control Order has produced on the price of mustard seed. In matters of the present nature, such provisions have to be viewed through a socially constructive. not legally captious microscope to discover a glaring unconstitutional infirmity, that when laws affecting large chunks of the community are enacted stray misfortunes are inevitable and that social legislation without tears, affecting vested rights is virtually impossible. [328 C-F] B. Panerjee v. Anita Pan, [1975] 2 SCR 774 @ 782 followed.
(g) The impugned Price Control Order is not so unreasonable as to be constitutionally invalid. It is enough compliance with the constitutional mandate if the basis adopted for price fixation is not shown to be so patently unreasonable as to be in excess of the power to fix the price. [328 G] 297 Saraswati industrial Syndicate v. Union of India, [1975] 1 SCR 956; referred to.
(h) Immediately prior to the promulgation of the price control order the consumer was denied the chance to get the mustard 'Oil at a price which he could reasonably afford.
For him, therefore, the supply had already dried,up. If, after the issuance of the order, the supply position shows no improvement, that consequence cannot be legitimately attributed to the operation of the Price Control Order. At worst, the Order can then be said to have failed to achieve its purpose. [329 A-B] (i) Just as the industry cannot complain of rise and fall of prices due to economic factors in an open market it cannot similarly complain of some increase or reduction in prices as a result of a notification issued under section 3(1) of the Essential Commodities Act because, such increase or reduction is also based on economic factors. Ensuring a fair price to the consumer was the dominant object and purpose of the Essential Commodities Act and that object would be completely lost sight of, if the producer's profit was kept in the forefront. [329 D-E] Shree Meenakshi Mills Ltd. v. Union of India, [1974] 2 SCR 398, Secretary of Agriculture v. Central Reig Refining Co., 94 Law. Edn. 381; applied.
Panipat Cooperative Sugar Mills v. Union of India, A.LR.
1973 SC 536; Anakapalle Cooperative Agricultural and Industrial Society Ltd. v. Union of India, A.I.R. 1973 S.C.
734; held inapplicable.
Premier Automobiles Ltd. & Anr. v. Union of India, [1972] 2 S.C.R. 526; distinguished, (j) Courts of law cannot be converted into tribunals for relief from the crudities and inequities of complicated experimental economic legislation. [331 A-B]
5. The contention that the Price Control Order is arbitrary because it is not limited in point of time is without any merit. In the very nature of things orders passed under s. 3(1) read with s. 3(2) of the Essential Commodities Act are designed primarily to meet urgent situations which require prompt and timely attention. If a price control order brings about an improvement in the supply position or if during the period that such an order is in operation there is a fall in prices so as to bring an essential commodity within the reach of the ordinary consumer, the order shall have lost its justification and would in all probability be withdrawn. That in fact is what has happened in the instant case. It appears that the supply position having improved. or so at any rate seems to be the assessment of the situation by the Government, the order has been recently withdrawn. [331 C-E]
6. The 'intervention of the middlemen is an acknowledged reality of all trades and businesses. The fact that the middleman's profit increases the price of 'goods which the consumer has to pay, is axiomatic. It has been the endeavour in modern times for those responsible for social control to keel) the middleman's activities to the minimum and to attempt to replace them largely by cooperative purchase societies of consumers. The elimination of the middlemen is bound to cause trouble and inconvenience, but the ultimate saving in the cost of the finished product could more than balance that inconvenience. The argument of the petitioners really amounts to a rigid insistence that they are entitled to carry on their business as they please, mostly in a traditional manner, regardless of its impact on public interest. But, property rights are not absolute, and important as the right of property may be, the right of the public, that such rights be regulated in common interest is of greater importance,. [331 G-H, 332 A-B] Led Nebbia v. People of, the State of New York, 78 Law Edn.
p. 940 and Narendra Kumar and' Ors. v. Union of India and Ors., [1960] 2 SCR 375 referred to.
298
7. If the Government has got the power to fix a fair price of an essential commodity, it cannot be said that they have under a pretext trespassed upon a field which does not properly belong to them. The power conferred by s. 3(1) of the Essential Commodities Act is undoubtedly purposive. The Price Control Order was promulgated by the Government in order to achieve the purpose set out in s. 3(1) of the Act.
The fact that a legislative remedy or an administrative order passed in exercise of a statutory power is ineffective to mitigate an evil may show that it has failed to achieve its purpose, highlighting thereby the paradox of reform. By fixing a fair price for mustard oil, the Government has not committed a veiled and subtle trespass upon private rights or upon a legislative field which is not open to them to occupy. [332 E-G] K. C. Gajapati Narayannai Rao and Ors., v. State of Orissa [1954] SCR; 1; Joseph Beauharis v. People of the State of Illinois, 96 Law. Edn. 919 referred to.
8. To be able to find fault with a law is not to demonstrate its invalidity. The Parliament having entrusted the fixation of prices to the expert judgment of the Government it would be wrong for this Court, to examine each and every minute detail pertaining to the Governmental decision. The Government is entitled to make pragmatic adjustments which may be called for by particular circumstances and the price control can be declared unconstitutional only if it is patently arbitrary, discriminatory or demonstrably irrelevant to the policy which the legislature is free to adopt. The interest of the producer and the investor is only one of the variables in the constitutional calculus of reasonableness and Courts ought not to interfere so long as the exercise of Governmental power to, fix fair prices is broadly within a "Zone of reascuableness". The impugned Price Control Order is, therefore, valid and the challenge made, thereto by the petitioners has to fail. [333 B-G] Metropolis Theater Co. v. City of Chicago, 57 Lawyers Edn.
730; Premier Automobiles & Anr. v. Union of India [1972] S.C.R. 526; permian Basin Area Rate Cases, 20 Law. Ed. 2d.
312 referred to.
Per Beg, C.J. (On behalf of Desai J. and himself) (Contra)
1. Article 31-B, no doubt, speaks of "specified" Acts and Regulations. But it makes no distinction whatsoever between any grants of powers and their exercise,. Powers are granted or conferred so as to be exercised and not to be kept in cold storage for purposes of some kind of display only as though they were exhibits in a show case not meant for actual use. The whole object of a protection conferred upon powers meant for actual use is to protect their use against attacks upon their validity based upon provisions of Part ITT. If this be the correct position, it would, quite naturally and logically, follow that their use is what really protected. [30F-H]
2. A delegated or derivative power could not rise higher or travel beyond the source of that power from which it derives its authority and force If Bagla's case is good law (no party has questioned its correctness, Articles 14 and 19(i) (f) d (g) could be deemed to be, "written into" Section 3 of the Act itself? (They would control the scope of orders which could be passed under it. That is, undoubtedly the way in which guarantees of fundamental rights could and should function if the Act containing Section 3 itself had not been placed in the Ninth Schedule so as to take away the guarantees of fundamental rights from the substance of it. [309 B-C] Hart Krishna Bagla v. State of M.P., [1955] 1 S.C.R. 380;
referred to.
3. If the effect was to widen the orbit of section 3 of the Essential Commodities Act or to remove the limitations put by Articles 14 and 19 upon the exercise of powers under it, the logical and natural result would be to enlarge the scope or sweep of the Orders passed under it. But, if it has no such upon section 3 of the Act itself, orders passed under it would continue to subject to provisions of section 3 of the Act as controlled by Articles 14 and of the Constitution so that they will have to satisfy what may be described 299 as a "dual test", firstly, that of provisions of section 3 of the Act itself; and secondly, that of provisions of Chapter III of the Constitution containing fundamental rights. [309 D-F]
4. The Ninth Schedule does not provide any protection at all against attacks based upon either the vice of excessive delegation or want of legislative competence defects which could be said to vitiate the grant of powers despite their place in the Ninth Schedule.
The distinction between protection to a mere grant of powers and to their exercise, therefore, seem specious in the context of the protection. It cannot ,explain why, if section 3 is protected by the Ninth Schedule, the exercise of power granted by it, which manifests itself in control orders is not protected. It would be so protected, if at all, not because the Orders to be made in future, as such, are protected but because the power actually conferred and found in existence in section 3 is protected. The protection is given to a power which is specified and in existence which has to be used for certain purposes and not to what may be specified in future. [310 A-C]
5. If orders passed under section 3 of the Act also get a protection it would be what may be described as a "derivative" protection so long as the Orders are covered by section-3 of the Act. It is available only so long as and because the source of their authority-Section 3 of the. Act is protected by the Ninth Schedule. Orders purporting to be made under section 3 of the Act must, however satisfy the tests found in section 3 itself in every case. 'They can never escape the basic tests whether section 3, the source of their authority, is protected by the Ninth Schedule or not. The further tests imported by Articles 14 and 19 of the Constitution into section 3 could be applied to these orders only so long as these added tests are attached to or can be read into section 3 of the Act, but not after they have been deliberately delinked or removed from section 3. The term "skeleton" legislation is used sometimes for denoting the broad outlines of a particular scheme found in an Act of which details are to be filled in later by administrative orders of experts. Essential Commodities Act, 1955, cannot be spoken of as a piece of "skeleton" legislation. [310 D, F-G]
6. Section 3, sub-section (1) of the Act provides for delegation of powers to the Central Government in order that it may carry out certain purposes by framing appropriate schemes and evolving policies which may meet the purposes of the Act. These schemes and policies to serve the stated purposes may differ ,as regards the nature of means adopted and even in the particular objectives sought at particular times to accord with changing circumstances. Orders passed under section 3 of the Act, in pursuance of such schemes or policies, do not become parts of the Act for the purposes of the Ninth Schedule of the Constitution. Orders passed under the Act, before its inclusion in the Ninth Schedule, could also be said to be protected directly by the Ninth Schedule if mentioned there. But, there could be no independent and direct protection of this Schedule conferred upon orders passed under the Act. [310 G-H, 311 A-B] Godavari Sugar Mills Ltd. and Ors. v. S. B. Kamble and Ors., [1975] 2 S.C.R. 885 referred to.
7. If the section under which the control order was passed is protected from any attack based on the provisions. of Part III of the Constitution, the only question will be whether the Control Order is covered by the protected empowering provision. If it falls outside the empowering Provisions it would be invalid in any case. If it falls within the empowering Provision but could be found to be struck by the provisions of Art. 19(1)(f) and (g) of the Constitution, an attack on the Control Order by. reason of Article 19(1)(f) and (g) would be really on against the empowering provisions itself which is protected. The Control order, therefore, enjoys what may be called derivative protection. [312 A-C.] Latafat Alikhan and Ors. v. State of U.P., [1971] SUPP.
S.C.R. 719 @ 720; applied.
8. The Act was put in the Ninth Schedule to prevent the invocation of Articles 14, 19 and 31 for obstructing measures to necessary as price fixation of 300 essential commodities is for promoting the objectives of a socialist welfare economy. This would be a sufficient answer to all the argument& on the unconstitutionality of fixing the price of mustard oil below what is claimed to be the cost price. [314 G] As the impugned order of 30th September, 1977, falls within the provisions of s. 3, question of violating a fundamental right does not arise. If an impugned order were to fall outside section 3 of the Act, no question of applying any test of reasonableness contemplated by Article 19(6) need arise because it would then be purely illegal restriction upon the right conferred by Art. 19(1)(g) which would fail for lack of authority of any law to support it. [315 B-C]
9. Section 3 makes necessity or expediency of a control order for the purpose of maintaining or increasing supplies of an essential commodity or for securing its equitable distribution at fair prices the criteria of validity. It is evident that an assessment of either the expediency or necessity of a measure, in the light of all the facts and circumstances which have a bearing on the subjects of price fixation, is essentially in a subjective matter. Objective criteria may enter into determination of particular selling prices of each kilogram of mustard oil at various times.
But, there is no obligation here to fix the price in such a way as to ensure reasonable profits to the producer or manufacturer, because the object is to secure equitable distribution aid availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time. The most important objective fact in fixing the price of mustard oil, which is consumed generally by large masses of people of limited means, is the paying capacity of the average purchaser or consumer. [312 D-G]
10. Principles of fair fixation of price apply only in those cases where there is an obligation upon the price fixing authority to take certain matters into account which have a bearing on cost of production and are designed to secure fair share of profits to the producers. Section 3 of the Act has very different purposes in view. It may be that the cost of production and reasonable amount of profits to the manufacturers have an indirect bearing on matters set out in section 3(1) of the Act. But, in cases where the effects of a policy or a measure adopted in achieving purposes set out in section 3(1) are matters of guess work, after experimentation, the actual consequences can be indicated with a fair amount of certainty only by giving sometime for a policy to work out and reveal its results.
Presence of such features in a case cannot invalidate price fixation of which the direct objects are set out in s. 3(1) of the Act. [315 D-F] A price fixation to meet the general purposes set out in section 3(1) of the Act, aimed at reversing the vicious inflationary spiral of rising prices. may appear arbitrary or unreasonable judged by standards applicable to price fixation aimed at giving reasonable profits to producers which is not the object of section 3(1) of the Act. [315 G- H] The whole machinery of control of supplies with a view to their equitable distribution and securing their availability at fair prices , 1 is much more comprehensive than the machinery for price fixation in special cases on given principles. Price fixation on certain given Principles is enjoined under s. 3(3) of the Act only when there is an order under s. 2(f) of the Act compelling the sale of a whole stock or a specified Part of it to the Central or a State Government or to authorities or persons as directed by them. Again, section 3 (a) (iii) provides a machinery for price fixation in special cases. Similar is position with orders under sections 3B and 3C. [316 D-E]
11. It is not the function of Supreme Court or of any Court to sit in judgment over matters of economic policy as must necessarily be left to the Government of the day to decide.
Many of them, as a measure of price fixation must necessarily be, are matters of prediction of ultimate results on which even experts can seriously err and doubtless differ. Courts can certainly not be expected to decide them without even the aid of experts. That a price fixed at Rs. 10/- per kg., as a part of an attempt to break the vicious inflationary circle, is not at all an unreasonable step. [313 C-D] 301 But the, Court can take judicial notice of subsequent facts.
The effect of the order of 30-9-77 was so beneficial that the rice, of mustard oil has fallen in the neighborhood of Rs. 7/- per kg. which illustrates the extreme inadvisability of any interference by any. Court with measures of economic control and planning directed at maximising general welfare.
It is not the function of the Courts to obstruct or defect such beneficial measures devised by the Government of the day. Courts cannot pass judgments on the wisdom of such actions, unless actions taken are so completely unreasonable that no law can be cited to sanction them. [314 H, 315 A-B]
12. Unless, by the terms of a particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character because it satisfies the tests of legislation. A legislative measure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the control order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shown between the order passed and the purposes for which it can be passed, or, in other words by reasonableness judges by possible or probably consequences. [317 G-H, 318 A] Panipat Corporation Sugar Mills v. Union of India, [1973] 2 SCR 860; Meenakshi Mills Ltd. v. Union of India [1974] 2 SCR 398; Premier Automobile Ltd. v. Union of India, [1972] 2 SCR 526; Saraswati Industrial Syndicate Ltd. etc. v. Union of India, [1975] 1 SCR 956; referred to.
13. Even executive or legislative action must be confined to the limits within which it can operate. It must fall reasonably within the scope of the powers conferred. The scope of the powers conferred depends upon terms of the empowering provision. The empowering provision in the instant case is widely worded. The validity of section 3 has not been challenged. and it could not be challenged by reason of Article 31-B after its inclusion in the 9th Schedule of the Constitution. [318 B-C]
14. In a case in which the Central Government is judge of expediency and necessity to the extent that even the protection of the guaranteed fundamental rights cannot stand in the way of its view or opinion of such necessity and expediency, a challenge on the grounds on which it was attempted could not succeed. [318 C-D]
15. Patent injustice and unreasonable injury to the interests of consumers must be shown if a measure of price control, in the nature of either legislative or purely administrative action, is assailed. So long as the action taken is not so patently unjust and unreasonable as to lead to the irresistible conclusion that it could not fall within section 3(1) of the Act it cannot be set aside or declared invalid. The test has to be that of consequences on objects sought by section 3(1) of the Act. Judged by this test, the order of 30th September, 1977, fall within the purview of section 3 of the Act and it has served its purposes. [319 A- C] Leo Nebbia v. People of the State of New York, 29 U.S. (78 Law. Edn.) 502; Permian Basin Area Rate Cases (20 Law Edn.
2d) p. 312 referred to.
ORIGINAL JURISDICTION: Writ Petition Nos. 712, 715-739, 760- 764, 765-770, 779-780, 781-84, 838-855, 861-873 & 874-892 of 1977.
A. K. Sen (in WP. 712), V. M. Tarkunde (in WP 715-39) J.
L. Jain (in WP 861-892) & P. P. Juneja for the petitioners in W. P. Nos. 712, 715-739, 874-892 and 861-873/77.
77. D. Goburdhan for the Petitioners in WP Nos. 760-64 & 765-70/77 2-277 SCI/78 302 A. K. Sen (in WP 779-780), S. B. Sanyal, Alit K. Mittar & P. K. Mukherjee for the petitioners WP 779-80/77 D. P. Mukherjee & A. K. Ganguli for the petitioners in W. P. Nos. 781-784/77.
S. S. Ray, A. K. Punja & H. K. Puri for the Petitioners in W.P. Nos. 838-855/77 S. N. Kackar, Sol. Genl. (WP Nos. 812 & 838), R. P. Bhatt (WP 861), E. C. Agarwala and Girish Chandra for the respondent.
770, L. N. Sinha & U. P. Singh for R/State of Bihar in W. P. No. 765781-784/77 A. P. Chatterjee, Mukti Maitre & G. S. Chatterjee for R/State of West Bengal The following Judgments were delivered BEG, C.J.-The ninety-one writ petitions before us for delivery of our reasons in support of our order dated 23 November, 1977 dismissing them, raised a common question of the validity of an order (hereinafter referred to as 'the Control Order), passed on 30th September, 1977, by the Ministry of Civil Supplies and Cooperation of the Government of India, which runs as follows "ORDER New Delhi, the 30th September 1977 S. O. WHEREAS the Central Government is of opinion that it is necessary and expedient so to do for securing equitable distribution and availability at fair prices, of mustard oil;
NOW, THEREFORE, in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government hereby makes the following orders namely :
1. Short title, extent and commencement. (1)This Order may be called the Mustard Oil (Price Control) Order, 1977.
(2) It extends to the whole of India.
(3) It shall come into force at once.
2. Definition.-In this Order, "dealer" means a person engaged in the business of the purchase, sale or storage for sale of mustard oil.
3. Price at which a dealer may sell.-No dealer shall, either by himself or by any person on his behalf, sell or offer to sell any mustard oil at a retail price exceeding Rs. 10/- per kilogram, exclusive of the cost of container but inclusive of taxes.
Sd/- (T. Balakrishnan) Joint Secretary to the Govt. of India (File No. 26(16)/77-ECR)" 303 The order WAS passed in exercise of the powers conferred upon the Central Government by section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act'). This provision lays down:
"3(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may, by order, provide for regulating or prohibiting the production. supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by subsection (1), an order made thereunder may provide- (a) xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx (c) for controlling the price at which any essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
(f) for requiting any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity," (a) to sell the whole or a specified part of. the quantity held in stock or produced or received by him, or (b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him.
to the Central Government or a State Government or an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation I.-An order made under this clause in relation to foodgrains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, 304 fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.
Explanation 2.-For the purpose of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;" We are not concerned here with other provisions of section 3 (2).
Section 3(3), which will be relevant for the purposes of interpretation, runs as follows :
"3 (3) Where any person sells any essential commodity in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to him the price therefore as hereinafter provided (a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale." Again, section 3A lays down:
"3A(1) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices, or preventing the hoarding, of any foodstuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with an order made with reference to clause (f) of sub-section (2) shall be regulated in accordance with the provisions of this sub-section.
(ii) Any notification issued under this sub- section shall remain in force for such period not exceeding three months as may be specified in the notification.
(hi) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the seller as the price therefore.- (a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;
305 (b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification.
(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality and the average market rate so determined shall be final and shall not be called in question in any court." Additional sub-sections (3B) and (3C,) will also require consideration in order to arrive at the correct meaning of section 3(2). They read as follows "(3B) Where any person is required, by an order made with reference to clause (f) of sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of foodgrains, edible oilseeds or edible oils in relation to which no notification has been issued under sub-section (3A), or such notification having been issued has ceased to be in force, there shall be paid to the person concerned notwithstanding anything to the contrary contained in sub-section (3), an amount equal to the procurement price of such foodgrains, edible oilseeds or edible oils, as the case may be specified by the State Government, with the previous approval of the Central Government having regard to- (a) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils;
(b) the general crop prospects;
(d) the recommendations, if any, of the Agricultural grains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable section of the consumers; and (d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of foodgrains, edible Oilseeds or edible oils.
306 (3C) Where any producer is required by an Order made with reference to clause (f) of subsection (2) to sell any kind of sugar (whether to the Central Government or a State Government or to an officer or agent of such Government or to any other person or class of persons and either no notification in respect of such sugar has been issued under sub- section (3A) or any such notification, having been issued hag ceased to remain in force by efflux of time, then, notwithstanding anything contained in sub-section (3), there shall be paid to that producer an amount therefore which shall be calculated with reference to such price of sugar as the Central Government may, by order, (determine, having regard to- (a) the minimum price, if any, fixed for sugarcane by the Central Government under this, section;
(b) the manufacturing cost of sugar;
(c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar, and different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar.
Explanation.-For the purposes of this sub- section, "producer" means a person carrying on the business of manufacturing sugar." It is necessary to keep other clauses of section 3 also in one's mind to get a true picture of the statutory context of the power of price control. The drastic measures which the Central Government may adopt, extending to virtually taking over of management of appointing Authorised Controllers of particular undertakings, so as to carry out the objects 'stated in section 3(1) of the Act, and the mechanism of control visualised to ensure due and proper exercise of the statutory powers are also very significant. The provisions containing these are :
"3(4) If the Central Government is of opinion that it is necessary so to do for maintaining or increasing the production and supply of an essential commodity, it may, by order, authorise any person (hereinafter referred to as an authorized controller) to exercise, with respect to the whole or any art of any such undertaking engaged in the production and supply of the commodity as may be specified in the order such functions of control as may be provided therein. and so long as such order is in force with respect to any undertaking or part thereof," 307 (a) the authorized controller shall exercise his functions in accordance with any instructions given to him by the Central Government, so, however, that he shall not have any power to give any direction inconsistent with the provisions of any enactment or any instrument determining the functions of the persons in charge of the management of the undertaking, except in so far as may be specifically provided by the order; and (b) the undertaking or part shall be carried on in accordance with any directions given by the authorized controller under the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions.
3(5) An order made under this section shall,- (a) in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette; and (b) in the case of an order directed to a specified individual be served on such individual- (i) by delivering or tendering it to that individual, or (ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighbourhood.
3 (6) Every order made under this section by the Central Government or by 'any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be, after it is made." It has also to be remembered that if the mechanism of price/, control of some essential commodities fails, there is under our Constitution, with its socialistic orientation and objectives, the provision in Article 19 (6) (ii) for "the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service,, whether to the exclusion, complete or partial, of citizens or otherwise".
The petitioners assail the control order on four grounds:
firstly, that it violates the fundamental rights of the petitioners to property under Article 19 (1) (f) and to carry on their trade and business guaranteed by Article 19(1) (g) of the Constitution; secondly, that the petitioners are denied the benefits of Article 14 of the Constitution; thirdly, that the order is hit by Article 301 of the Constitution;
308 and, fourthly, that the Central Order is outside the scope of section 3 of the Act.
We need not consider Article 301 of the Constitution as the petitions do not, beyond citing the provision, set out any facts to show how this Article is involved. This Article is meant for protecting inter-State as well as intrastate "freedom of trade, commerce, and intercourse". But, Article 302 provides "Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the, territory of India as may be required in the public interest." Although, Article 302 does not speak of "reasonable" restrictions, yet, it is evident that restrictions contemplated by it must bear a reasonable nexus with the need to serve "public interest". It the tests of Section 3 of the Act are satisfied by an Order, it could not fail to serve public interest. Hence, from this point of view also, it is enough if we consider whether the Control Order falls within section 3 of the Act. It was evidently for this reason that, beyond mentioning Article 301, counsel for the petitioners did not, quite rightly, advance much argument to show how Article 301 is involved here. We will, therefore, not consider it any more here.
It was, however, vehemently urged on behalf of the petitioners that the Control Order is assailable for violating Article 14 and 19(1) (f) and (g) despite the fact that the Act itself was placed in 1976 in the 9th Schedule of the Constitution. The result of placing it there by a constitutional amendment is that section 3 of the Act became free from any limitations based on the provisions of Part III of the Constitution. Article 31B, providing for a removal of the protection to fundamental rights given by Part III of our Constitution, lies down:
"31B. Validation of certain Acts and Regulations.- Without prejudice to the generality. of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legis- lature to repeal or amend it, continue in force." It is evident that Article 31B protects only Acts and Regulations specified in the Ninth Schedule from the vice of invalidity for inconsistency with provisions of Part III of the Constitution but not anything done or to be done in future under any of the provisions of 3 0 9 any Act so specified, such as an order passed under section 3 of the Act., If section 3 of the Act, which was held in Shri Hari Kishan Bagla v. State of Madhya Pradesh(1) to pass the tests of validity imposed by articles 14 and 19 (1) (f) and (g), read with articles 19 (5) and (6), a Control Order passed under section 3 would also be required to pass these tests as its scope could not be wider than that of the provisions which authorises its promulgation. A delegate or derivative power could not rise higher or travel beyond the source of that power from which it derives its authority and force.
If Bagla's case (supra) is good law (no party has questioned its correctness) Articles 14 and 19(1) (f) and (g) could be deemed to be, if one may so put it, "written into" section 3 of the Act itself. They would control the scope of orders which could be passed under it. That is, undoubtedly' the way in which guarantees of fundamental rights could and should function if the Act containing section 3 itself had not been placed in the Ninth Schedule so as to take, away ',be guaranteed of fundamental rights from the substance of it.
The question of interpretation before us is: What is the effect of putting the Act in the Ninth Schedule upon Control Orders passed under section 3 of the Act? The answer to this question must necessarily depend upon the effect of such a change of the legal position upon the provisions of section 3 itself which authorise control orders passed- under it. If the effect was to widen the orbit of section 3 of the Act or to remove the limitations put by Article 14 and 19 upon the exercise of powers under it, the logical and natural result would be to enlarge also the scope or sweep of the orders passed under it. But, if it has no such effect upon section 3 of the Act itself, orders passed under it would continue to be subject to provisions of section 3 of the Act as controlled by Articles 14 and 19 of our Constitution so that they will have to satisfy what may be described as a "dual test" : firstly that of provisions of section 3 of the Act itself; and, secondly, that of provisions of Chapter III of the Constitution containing fundamental rights.
Learned Counsel for the petitioners suggested that the placing of the Act in the Ninth Schedule protected only the grant of powers under section 3 of the Act but not their exercise. Article 31B, no doubt, speaks of "specified" Acts and Regulations. But it makes no distinction whatsoever between any grants of powers and their exercise. Powers are granted or conferred so as to be exercised and not to be kept in cold storage for purposes of some- kind of display only as though they were exhibits in a show case not meant for actual use. The whole object of a protection conferred upon powers meant for actual use is to protect their use against attacks upon their validity based upon provisions of Part 111. If ',his be the correct position, it would, quite naturally and logically, follow that their use is what is really protected.
(1) [1955] 1 SCR380.
310 In practice, it is the- exercise of power which is generally assailed and not the mere conferment of it which raises the somewhat different question of legislative competence.
Indeed, the Ninth Schedule does not provide any protection at all against attacks based upon either the vice of excessive delegation or want of legislative compete defects which could be said to vitiate the grant of powers despite their place in the Ninth Schedule. But, questions of conflict with fundamental rights and of transgression of Legitimate or reasonable, limit.% upon their exercise arise when citizens complain of unreason able impediments to the exercise of their fundamental rights. The distinction between protection to a mere grant of powers and to their exercise, therefore, seems specious in the context of the protection. It cannot explain why, if section 3 is protected by the Ninth Schedule. The exercise of power granted by it, which manifests itself in control orders, is not protected. It would be so protected, if at all, not be- cause the orders to be made in future, as such are protected, but because the power actually conferred and found in existence in section 3 is protected. The protection is given to a power which is specified and in existence which has to be used 'of certain purposes and not to what may be specified in future.
If orders passed under section 3 of the Act also get a protection it would be what may be described as a "derivative" protection so long as the orders are covered by section 3 of the Act. It is available only so long as and because the source of their authority--section 3 of the Act- is protected by the Ninth Schedule. Orders purporting to be made under section 3 of the Act must, however, satisfy the tests found in section 3 itself in every case. They can never escape the basic tests whether section 3, the source of their authority, is protected by the Ninth Schedule or not. The further tests imported by Articles 14 and 19 of the Constitution into section 3 could be applied to these orders only so long as these added tests are attached to or can be read into section 3 of the Act, but not after they have been deliberately delinked or removed from section 3, if one may so describe the effect of the inclusion of the Act in the Ninth Schedule.
The Solicitor-General contended that section 3 of the Act constituted what he described as "skeleton" legislation, over which the exercised of powers given by section 3 built, so to say, a body of "flesh and blood". The term "skeleton" legislation is used sometimes for denoting the broad outlines of a particular scheme found in an Act of which details are to be filled in later by administrative orders of experts. It is doubtful whether the Essential Commodities Act, 1955, could be spoken of as a piece of "skeleton" legislation. Section 3, sub-s.(1) of the Act provides for delegation of powers to the Central Government in order that it may carry out certain purposes by framing appropriate schemes and evolving policies which may meet the purposes of the Act. These schemes and policies to serve the stated purposes may differ as. regards the nature of means adopted and even in the particular objectives sought at particular times to accord with changing circumstances.
311 Orders passed under section 3 of the Act, in pursuance of such schemes or policies, do not become parts of the Act for the purposes of the Ninth Schedule of the Constitution. On the strength of the views expressed by this Court in Godavari Sugar Mills Ltd. & Ors. v. S. B. Kamble & Ors.,(1) with which we respectfully agree, the most one can say is that orders passed under the Act, before, its inclusion in the Ninth Schedule, could also be said to be protected directly by the Ninth Schedule if mentioned there. But, there could be no independent and direct protection of this Schedule conferred upon orders passed under the Act before us just as none could be given to either the amendments of an Act or to regulations passed under the Act which were considered in Godavari Sugar Mills case (supra).
As already indicated above, the impugned control order is assailed mainly on the ground that it violates Articles 14 and 19(1) (f) and (g) of the Constitution. It is alleged that the manufacturers of oil having invested a great deal of capital in Mustard oil manufacturing industry and having purchased oil seeds at higher rates than those which have entered into the calculation of the Government in fixing the price of mustard oil for the consumer cannot be made to sell oil, into which Mustard seed is converted, at prices below those at which they could themselves produce oil. It is submitted that to-require them to do so amounts to confiscation of property contrary to law as well as a restriction upon the right guaranteed by Article 19(1)(g) of the Constitution upon them to carry on an industry or business free from unreasonable restrictions. Valid restrictions, it is submitted, can only be reasonable and in the interests of the general public. It was suggested that the protection of Article 31(1) against deprivation of property contrary to law was also involved here. The main question ,to be decided therefore, is whether Part III of the Constitution is available at all to test the validity of the impugned control order.
In Latafat Ali Khan & Ors. v. State of U.P.,(1) a Constitution Bench of this Court decided such a question quite rightly in our opinion as follows (at p. 720) :
"It seems to us that if a statutory rule is within the powers conferred by a section of a statute protected by Art. 3 1 B, it is difficult to say that the rule must further be scrutinised under Arts. 14, 19 etc, Rule 4(4) seems to us to be a rule which does not go beyond the powers conferred under s. 6(xvii), read with s. 44 of the Act. At any rate, s. 6(xvii) and rule 4(4) are part of a scheme of land reform in U.P. and would be protected from attack under Art. 31B of the Constitution".
In that case, the rule made under the provisions of the Imposition of Ceiling on Land Holdings Act 1960 of U.P. was under attack. The section under which the rule was made enjoyed the protection of both Articles 3 1 A and 3 1B of the Constitution. Hence, it was held that the rule was not to be questioned if it fell within the empowering (1) [1975] 3 S.C.R. 885.
(2) [1971] Suppl.S.CR.719at720.
312 provision of the Act. The position before us is very similar. The Control order passed under section 3 of the provisions of the Act before us, included in the Ninth Schedule, is assailed on the ground that, although section 3 of the Act may be protected by the 9th Schedule of the Act, yet, an order passed under this provision is not so protect- ed. Although, we agree that the impugned order is not protected for this reason, yet, if the section under which it was passed is protected from any attack based on the provisions of Part III of the Constitution, the only question which survives is whether the control order is covered by the protected empowering provision. If it falls outside the empowering provision it would b
