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Judgment
Srinivasan, J.—In this writ petition, the prayer is for declaration that the Tamil Nadu Scheduled Articles (Prescription of Standard) Order,
1977 published in G.O.Ms. No. 218 (Food), dated 20.8.1977, as amended by G.O.Ms. No. 218, dated 1.3.1988, Food and Consumer
Protection Department, Government of Tamil Nadu is unconstitutional, ultra vires, illegal and invalid. Though the prayer is wide enough to challenge
the validity of the entirety of the Order of 1977, learned Counsel for the petitioner states that in this writ petition he will confine his claim to the
validity of the amendment brought in by G.O.Ms. No. 218, dated 1.3.1988. By the said amendment, the original order was made applicable to
petrol and diesel and certain provisions were included with regard to kerosene, petrol and diesel.
The State Government was authorised by G.S.R. No. 316-E, dated 20.6.1972 issued by the Central Government u/s 5 of the Essential
Commodities Act, 1955 to make orders to provide for matters specified in Clauses (a), (b), (c), (d), (e), (f) (h) and (i) and (ii) of (j) of Sub-section
(2) of the said Act in relation to foodstuffs as may be exercisable by the Central Government. The authorisation or delegation rather was with
reference only to foodstuffs. The amendment relates to Kerosene, petrol and diesel which cannot be considered to be foodstuffs by any stretch of
imagination. Hence, the schedule order would be invalid on the face of it.
The State Government has passed already the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution)
Order, 1990. Clause 10 of the said order provided that the provisions of the said order shall have effect not with standing anything to the contrary
contained in any order made by a State Government or by an officer of such State Government before the commencement of the order except as
respects anything done or omitted to be done thereunder before such commencement.
The State Government issued a circular No. E4/ 21831/91, dated 7.5.1991 to its officials as follows:
The attention of the Quality Control Personnel of this department are drawn to the provisions of Motor Spirit and High Speed Diesel (Prevention
of Malpractices in Supply and Distribution) Order, 1990. It is brought to the notice of this Office that samples of Motor Spirit and High Speed
Diesel are still drawn under the provisions of Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977. It is a gross violation of the
provisions of Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990. The Motor Spirit and
High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 comes into effect from 1.10.1990 in case of High Speed
Diesel and from 1.1.1991 in case of Motor Spirit. Hence, no sample of Motor Spirit and High Speed Diesel should be drawn under the provisions
of Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977 after the above dates of effect. Further it is also brought to notice of this
office that samples of Motor Spirit and High Speed Diesel are being drawn without seizing any quantity of Motor Spirit and High Speed Diesel,
under the provisions of Motor Spirit and H.S.D. (P.M.S. & B) Order 90. If the density various beyond 0.0030 in case of Motor Spirit and High
Speed Diesel from that of the density recorded in the invoice and/or the density recorded in the density register maintained by the dealer, it should
be treated as adulterated and the entire stock should be seized immediately and only to confirm the stocks awe adulterated, sample has to be
drawn and sent to the laboratories authorised in the abovesaid order. It is also brought to the notice of this office that the samples of Motor Spirit
and High Speed Diesel are being sent to the Laboratory of Industries Department at Guindy, Madras. The above laboratory is not included in the
Motor Spirit and High Speed Diesel (P.M.S. & D) Order, 1990 at present and hence no sample should be sent to the laboratory of Industries
Department at Guindy, Madras. All the Quality Control Personnel are instructed that if they suspect adulteration on the basis of density test, the
stock should be seized immediately u/s 6 of Essential Commodities Act, 1955 and sample should be sent to any one of the laboratories included in
the abovesaid order. Any violation of the above instructions will be viewed seriously.
Receipt of the circular should be acknowledged by return of post.
It is seen therefrom that the Government has realised that the amendment brought in by G.O.Ms. No. 218, dated 1.3.1988 is unenforceable in
view of the limited delegation conferred by G.S.R. 316-E, dated 20.6.1972 issued the Central Government. It is needless to say that the said
amendment is not enforceable in any manner as the amendment is wholly invalid and ultra vires the powers of the State Government. It is enough if
the said position is declared and there is no question of issuing writ as prayed for by the petitioner. It is made clear that no portion of the
amendment brought in by G.O.Ms. No. 218, dated 1.3.1988 could be enforced by any of the officials of the State Government. If any action had
been taken after the amendment pursuant to the provisions therein, such action will be invalid and no further proceedings can go on in pursuance
thereof. To that extent the writ petition is allowed. No costs.