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2013 Supreme(Bom) 1554
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
ANOOP V. MOHTA & Z.A. HAQ, JJ.
National Seed Association of India & Anr.
Vs.
The State of Maharashtra & Ors.
Writ Petition No. 3390 of 2009 with Writ Petition No. 2207 of 2008 with Writ Petition No. 2493 of 2010
Decided On : 13th August, 2013
Mr. RAJEEV DHAWAN, Senior Counsel with Mr. H.S. CHANDHOKE, Mr. PRASHANT PAKHIDDEY, Mr. KOSHY JOHN, Mr. MANAV VOHRA & Mr. AKSHAY A. NAIK, Advocates for petitioners in all Writ Petitions.
Mrs. B.H. DANGRE, Additional Government Pleader for respondent nos. 1 to 3 in WP Nos. 3390/2009 and 2207/2008 and for Res. nos. 1 & 2 in WP No.2493/2010.
Mr. S.K. MISHRA, Assistant Solicitor General of India for respondent nos. 4 to 6 in WP Nos. 3390/ 2009 and 2207/2008.
Mr. B. MAYUR REDDY, Mr. A.C. DHARMADHIKARI & Mr. S.Y. BHUTADA, Advocates for Intervenors/respondent nos. 7 to 10 in WP No. 3390/2009 and for Respondent Nos. 3 to 6 in WP No. 2493/2010.
Headnote:Essential Commodities Act, 1955 - Sections 2-A and 3 - Seeds Act, 1966, Section 2(11) - Maharashtra Cotton Seeds Act, 2009, Sections 2 and 3 - Repugnancy of laws.
In absence of any law or control order covering cotton seed pricing as required under Section 3 of Act, vacuum so filled in by State, cannot be held to be repugnant to Central Act. - There is no specific cotton seed price control order and/or enactment enacted by the Central Government as contemplated under Entry 34 of Concurrent List under Schedule VII and the Central Acts in question. It is relevant to note that "price control" is a separate entity though Centre is empowered to enact laws of Entry 33 and also the State because of Entry 27 List II but subject to Entry 33. These concepts are different, yet the Act though empowered and/or in a given case, to enact controlling laws including cotton seed but not yet enacted and/or control the cotton seed pricing in any part of India and especially for the State of Maharashtra.
The field is unoccupied but the demand and necessity from the point of view of the State of Maharashtra prevail and relevant. It is necessary to note here that under the Essential Commodities Act, various goods are included by specific products/goods like sugar, oil seed and many others even in Section 3 itself. The cotton seed is definitely not mentioned in any of these provisions except by amendment "cotton seed" as brought back in the Schedule from the year 2009. The cotton seed was under the purview of the Act earlier also but the entry was deleted.
There was lacuna and, therefore, the State enacted the Ordinance to control the situation and demand in the interest of farmers at large. The Central Government till this date has not enacted any provisions to control the cotton seed prices. The plain reading of Section 3 of the Act itself provides that the Central Government is required to form its "opinion" to enact laws and/or order to regulate the products/goods as fall within the ambit of the Act and now in view of Section 2-A the "cotton seeds" also. Therefore, considering the entries and the power given to the State Legislature to enact laws but subject to Entry 33, and as there is no law or Control Order covering the cotton seed pricing as required under Section 3 of the Act, the vacuum so filled in by the State Legislature, in no way can be stated to be inconsistent and/or repugnant to the Central Acts in question.
Both Central Act as well as State Act in question can co-exist. The encroachment even if any in view of the definition of the seeds covering the cotton seeds in no way can be said to be fatal and/or repugnant and/or inconsistent as the Central Act is silent with regard to this aspect of controlling price of cotton.
ANOOP V. MOHTA, J.:- The petitioners "the producers of the cotton seed" have challenged the statutes and notifications of the State of Maharashtra (the State) of "price control of cotton seed" in Maharashtra.
2. In W.P. 2207 of 2008 (AICBA v. State of Maharashtra & Ors.), the petitioners challenged the validity of the Maharashtra Cotton Seed (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Ordinance, 2008 (the Ordinance) (published in the official Gazette on 23.05.2008) and Notification dated 23.05.2008 (the notification) fixing the Maximum Retail Price (MRP) of Bt. cotton seeds.
An interim order was passed on 27.06.2008 "...whenever the Ordinance is issued or legislation is evolved by the Legislature, State cannot shirk its responsibility to make good the loss, if any caused in the event such Ordinance or Legislation is held to be unconstitutional and is quashed and set aside by the Courts. In the present case, if the petition succeeds appropriate orders in this regard will be passed; however since the rule is made returnable on 20.08.2008, we are not inclined to stay the effect and operation of the impugned ordinance at this stage."
3. In W.P. 3390 of 2009 (NSAI v. State of Maharashtra & Ors.) the petitioners challenged the validity of the Maharashtra Cotton Seed (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Ordinance, 2009 (the Ordinance) (published in the official Gazette on 09.05.2009) and the notification dated 10.05.2009 fixing the prices of BG-I and BG-II cotton seeds.
The Ordinance was replaced by an Act, namely the Maharashtra Cotton Seed (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2009 (published in the official Gazette on 03.07.2009 ("the Mah. Cotton Seed Act").
4. In W.P. 2493 of 2010 : NSAI v. State of Maharashtra & Ors., the petitioners challenged the validity of Notification dated 14.05.2010 issued by the State under Section 10 of the Mah. Cotton Seed Act. By the Notification the maximum sale price of BG-I and BG-II cotton seeds was fixed at Rs.650/-and 750/- per packet respectively.
Similar Interim Order was passed by this Hon'ble Court on 10.06.2010.
5. The contesting respondents resisted every aspect of the petitioners' case by filing their respective reply-affidavits. The State filed counter-affidavits on 18.9.2009 & 9.6.2010. The respondent-Union of India (UOI) filed affidavit/reply on 27.7.2010. The other respondents/intervenors have also filed their affidavit and resisted the challenges of "cotton seed price fixation". All the respondents placed on record material to support the stand/action taken by the State and provided the details, apart from denying the averments and submissions and the details provided by the petitioners in all the matters.
6. Rule returnable forthwith. By consent, heard finally and as common and interlinked issues are involved, therefore, this common judgment.
7. Following are the Central Acts and the State Acts and Ordinances involved and read and referred by the parties:
Central Acts and Rules:
I. The Essential Commodities Act, 1955, (for short "EC Act"). This Act provides in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities. The term "essential commodities" is described in the Schedule (Section 2-A) which includes cotton seed.
II. The Seeds Act, 1966, (for short "Seeds Act"), This Act provides for regulating the quality of certain seeds for sale and for matters connected therewith. The term "seed" includes cotton seeds also.
III. The Seeds (Control Order), 1983, (Seeds Control Order) Under Section 3 of EC Act, the Seed Control Order has been passed. It also referred the word "seeds" as per the Seeds Act. This basically deals with the licence, inspection, laboratory, analysis, stock price list, quality parameters and power of authorities to direct producers to sell and distribute the seeds. The Enforcement Authorit
