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1966 Supreme(Cal) 2
HIGH COURT OF CALCUTTA
B. N. Banerjee
NANI GOPAL PAUL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 281 Of 1965
Decided On : JANUARY 1, 1966
Anil Mittal, B.K.PANDEY, D.GUPTA, R.C.DE
A delegated legislation, such as the Control Order, must be exercised only for the purpose of achieving the result contemplated by the Rule or in reasonable expectation thereof. Where the power is exercised purposelessly or with the knowledge that the Control Order will not achieve the professed object, there is no legal justification for the exercise of the power.
Headnote:
B. N. BANERJEE, J. ( 1 ) IN exercise of the powers under Sub-rules (2) and (3) of Rule 125 of the Defence of India Rules 1962, the Governor of West Bengal made an order known as the "west Bengal Chhana Sweets Control Order 1965" (hereinafter referred to as the Control Order ). The object of the control order is, as stated in the preamble, the maintenance of supplies and equitable distribution of milk. The order was published in an Extra-ordinary issue of the Calcutta Gazette, on August 23, 1965, and three days thereafter the petitioner disputed the validity of the order and obtained this Rule.
Fact of the Case:
The petitioner, a producer and dealer of sweets, including Chhana sweets, under the name and style of "Mukho Misti", challenged the validity of the West Bengal Chhana Sweets Control Order 1965 (the Control Order), issued by the Governor of West Bengal under the Defence of India Rules 1962. The petitioner argued that the Control Order imposed an unreasonable restriction on his freedom of trade and contravened Article 301 of the Constitution, which guarantees freedom of trade and commerce throughout the territory of India. The petitioner also contended that the Control Order was not within the scope of the Defence of India Act and the Rules framed thereunder and was ultra vires.
Finding of the Court:
The court found that the Control Order did not impose a total prohibition on the petitioner's trade in Chhana sweets, as it permitted the manufacture and sale of certain varieties of Chhana sweets. The court also held that the Control Order was a valid exercise of the power conferred by Rule 125 of the Defence of India Rules, as it was made for the purpose of maintaining the supply and equitable distribution of milk, which was an essential commodity. However, the court found that the Control Order was unreasonable and arbitrary as it did not effectively achieve its stated purpose and was not supported by any reasonable basis.
Issues: 1. Whether the Control Order imposed an unreasonable restriction on the petitioner's freedom of trade and contravened Article 301 of the Constitution. 2. Whether the Control Order was within the scope of the Defence of India Act and the Rules framed thereunder. 3. Whether the Control Order was a valid exercise of the power conferred by Rule 125 of the Defence of India Rules. 4. Whether the Control Order was unreasonable and arbitrary.
Ratio Decidendi: 1. The court held that the Control Order did not impose a total prohibition on the petitioner's trade in Chhana sweets, as it permitted the manufacture and sale of certain varieties of Chhana sweets. Therefore, the Control Order did not violate Article 301 of the Constitution, which guarantees freedom of trade and commerce throughout the territory of India. 2. The court held that the Control Order was within the scope of the Defence of India Act and the Rules framed thereunder, as it was made for the purpose of maintaining the supply and equitable distribution of milk, which was an essential commodity. 3. The court held that the Control Order was a valid exercise of the power conferred by Rule 125 of the Defence of India Rules, as it was made for the purpose of maintaining the supply and equitable distribution of milk, which was an essential commodity. 4. The court held that the Control Order was unreasonable and arbitrary as it did not effectively achieve its stated purpose and was not supported by any reasonable basis.
Final Decision: The court quashed the Control Order, holding that it was an unreasonable and arbitrary exercise of power under Rule 125 of the Defence of India Rules.
( 1 ) IN exercise of the powers under Sub-rules (2) and (3) of Rule 125 of the Defence of India Rules 1962, the Governor of West Bengal made an order known as the "west Bengal Chhana Sweets Control Order 1965" (hereinafter referred to as the Control Order ). The object of the control order is, as stated in the preamble, the maintenance of supplies and equitable distribution of milk. The order was published in an Extra-ordinary issue of the Calcutta Gazette, on August 23, 1965, and three days thereafter the petitioner disputed the validity of the order and obtained this Rule.
( 2 ) IT is necessary for me to notice the relevant provisions of the Control Order at this stage. Clause (2) of the Control Order is the definition clause. Under Clause 2 (b), "chhana means a product obtained through coagulation of milk followed by draining off the whey. " Under Clause 2 (c)"chhana sweets mean sweets of any kind containing Chhana as one of the ingredients but does not include the variety of sweets commonly known as Rasogolla, Pantua (Ladykene) Cham-Cham, Khirmohan and Langcha. "the definition includes a variety of Chhana sweets called "sandesh", which is well known to the Bengalee palate. Under Clause 2 (d), "family in relation to a householder means his parents, wife, children, other relations and servants living together with him in the same mess. Under Clause 2 (f), "manufacturing establishment means any establishment where Chhana sweets are Under Clause 2 (g), manufactured or sold. " "milk means the lacteal secretion of bovine species including buffaloes and goats and includes milk reconstituted from milk powder. " Clause (3) of the Control Order contains prohibition as to manufacture, sale, service and supply of Chhana sweets, in the following language;"3 (1) No person shall manufacture or sell or cause to be manufactured or sold Chhana sweets. (2) No owner, manager or person in charge of having control of any manufacturing or catering establishment shall manufacture, sell, serve or supply or cause to be manufactured, sold or supplied within such establishment Chhana sweets. Provided that nothing in this Order shall apply to the manufacture of Chhana sweets by a householder in his own premises for consumption by himself or by the members of his family or other relations,"clause (5) provides for penalty for contravention of the order. Clause (6) invests the State Government with power to grant some occasional exemptions.
( 3 ) THE petitioner says that he carries on business as a producer and dealer of sweets, inter alia, Chhana sweets, under the name and style of "mukho Misti", and as such is the owner of a manufacturing establishment within the meaning of the Control Order. He feels that the Control Order imposes prohibition, alternatively unreasonable restriction, on his freedom of trade and contravenes Article 301 of the Constitution. He further feels that the Control Order does not fall within the four corners of the Defence of India Act and the Rules thereunder framed and is ultra vires Sub-rules (2) and (3) of Rule 125, under which the Order was purportedly made. He also feels that the Control Order is arbitrary and was promulgated in misuse of power and in abuse of discretion. By a letter, dated August 24, 1965, the Solicitor for the petitioner called upon respondents to cancel, withdraw or set aside the Control Order bill nothing was done by the respondents.
( 4 ) IN these circumstances, the petitioner moved this Court, under Article 226 of the Constitution, praying for a mandate upon the respondents for the cancellation of the Control Order. He obtained this Rule.
( 5 ) MR. R. C. Deb, learned Advocate for the petitioner, argued this Rule with circumspection and raised several interesting points. He invited my attention to Article 301, in Part XIII of the Constitution, which is couched in the following language: "subject to the other provisions of this Part, trade, commerce and intercourse throughout the
