An amendment to an order made under a statute that requires the concurrence of a higher authority is ultra vires if made without obtaining such concurrence.

Hemeon, J—The applicant Radhakisan Laxminarayan of Akola was convicted and sentenced to pay a fine of Rs. 500 by the Additional District Magistrate, Akola, under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 for contravention of clause 3 of the Centrist Provinces and Berar Sugar (Control) Order, 1949; and his appeal was dismissed by the Sessions Judge, Akola. He has now come up in revision to this Court.

2. The admitted facts are as follows. The applicant who is a big merchant and proprietor of the firm Raghunathdas Rampratap at Akola, held a licence to deal in sugar under the Central Provinces and Berar Sugar Dealers' Licensing Order in 1943. The firms of Rajaram Ramawatar and Bansidhar Nandlal of Bareli, Uttar Pradesh, sent a consignment of 185 bags of sugar to Akola. The consignment was to self. The invoices were received on the 15th January 1950 and the consignment arrived at Akola five days later.

The railway receipts Exhibits P-16 and P-17 in respect of the consignment had been endorsed by the consignors in favour of the firm Raghunathdas Rampratap. That firm endorsed them in favour of D. N. Gosawi (P. W, 6), station dalal, who took delivery of them on the 23rd January 1950 and sent them to the applicant's godown. On the same day, S. V. Garde (P. W. 2) station-officer, Akola kotvali, having received information concerning the consignment, went to the applicant's godown where he found the 185 bags of sugar arranged in 3 stacks. As the applicant's servant Ramdhan was unable to produce a licence for dealing in sugar under the Central Provinces and Berar Sugar (Control) Order, 1949, S. V. Garde seized the bags.

3. The applicant in examination denied that he had on the 23rd January 1950 given Prabhakar (P. W. 7), Gosawi's servant the railway receipts Exhibits P-16 and P-17 for transmission to Gosawi to enable him to take delivery of the bags of sugar or that he (the applicant) was aware that Gosawi had taken delivery of them in the name of his firm. He further expressed ignorance of the fact of the seizure of the bags from his godown on that date, but he admitted that he had applied on the 16th January 1950 for a licence under the Order of 1949. He added that he had not ordered the sugar, that Jagannath, munim looked after the management of the business and that the sugar had been sent to his shop ''as adtia''. The case of the applicant's servants, Ramdhan and Pannalal was to the effect that they had no knowledge whether their employer had a licence or not; and this defence was accepted by the trial Court which acquitted them. The applicant's defence was as follows:

I have not committed any offence. I was only to act as commission agent, on receipt of orders from the consignor. I was a former licencee and was dealing in sugar during the previous 3 years. I had applied for a fresh licence by way of renewal. I was led to believe that I would get the licence. The delivery was given to firm servants by railway authorities on the advice of the Deputy Commissioner. My action is altogether bona fide. I am not the owner of the goods.

No evidence was adduced in defence.

4. In the course of his arguments the applicant's learned counsel raised the following interesting point. In the original Central Provinces and Berar Sugar (Control) Order, 1949, which came into force on the 13th September 1949, ''Sugar'' was defined in clause 2 (a) as any sugar of crystalline structure; but that sub-clause was amended by Food Department Notification No. 25640-1446-XXV-FZ, dated the 18th October 1949, and ''Sugar'' was defined as follows:

i. any sugar of crystalline structure;

ii. any form of sugar containing more than 90 per cent sucrose;

iii. sugar manufactured by any process including sugar made in vacuum pan factories from cane or gur or palmyra jaggery as well

as khandsari sugar, sugar-candy (misri) and bura.

A ''dealer in sugar'' was defined in the original Order as a person dealing in the purchase, sale or distribution of sugar i