A government ban on issuing licenses for essential commodities within a certain distance from the border cannot be imposed through a circular letter. Such a ban can only be imposed by making an amendment to the respective Control orders.

( 1 ) THIS write application is against the order dated 22. 7. 96 issued by the Sub-Divisional Controller, Fands, Basirhat, whereby and whereunder the petitioner's application for grant of new kerosene oil retail licence against kerosene oil vacancy at Gacharati under Sankchura-Bagundi Gram Panchayat as contained in annexure 'd' to the write application, was rejected.

( 2 ) THE question, which arises for consideration in this writ application is although short but an interesting one. The said order dated 22. 7. 96 reads thus :"sub:-YOUR prayer, dt. 17. 3. 93, for a new K. Oil Retail licence against the K. Oil vacancy at Gacharati under Sankchura-Bagundi Gram Panchayat, P. S. Basirhat against this office Notification No. 203 (10), dt. 2. 3. 93. Your aforesaid prayer is hereby considered but rejected by D. M. North 24-Parganas, as your proposed place of business stands within 8 K. M. s away from the Indo-Bangladesh Border. There is a Govt. ban on issuance of licence in essential commodities within 8 K. M. s of Indo-Bangladesh Border. "

( 3 ) IT is stated in Affidavit-in-opposition, as annexed a copy of circular letter bearing No. 3397 (86)FS dated 17. 7. 89 to the following effect :"i am directed to state that as a measure of curb clandestine movement of essential commodities crossing the international border it has been decided that untill further order no new wholesalers licences/permits/registration certificates etc. for dealing in essential commodities, which are controlled by this Deptt. will be issued within the 8 K. M. belt of such border without prior approval of the Government. This order, however, would not apply to the issue of licences/permits/registration certificates etc. for filling up of vacancies caused by surrender of a licence/permits, etc. by the holder on medical grounds, or death of the holder of a licence/permit etc. or cancellation of a licence/permit etc. by the Govt. "

( 4 ) ALTHOUGH prima facie the said circular is not applicable in the case of the petitioner, inasmuch as, by reason there of, only a restriction has been imposed in the matter of grant of wholesale licence/permit, the petitioner has applied only for grant of a new retail licence. A person who is a citizen of India, has a fundamental right to carry on business in terms of Article 19 (1) (g) of the Constitution of India. Such a fiundamental right to carry on business may be curtailed or restricted by imposing reasonable restriction in terms of Provision of statutes. Essential Commodities Act, 1955 is only one of such a statutes whereby and whereunder, right to carry on business has been curtailed.

( 5 ) SECTION 3 of the Essential Commodities Act, 1955 empowers the Central Government to make an order restricting trade/business in any essential commodity. Such an order may provide that no person will be entitled to carry on business save and except upon fulfilling the conditions laid down under a licence as granted thereunder.

( 6 ) IN terms of section 5 of the Essential Commodities Act, 1995, the Central Government is empowered to delegate its power to the State Government/union Territories. Such an delegation is made by issuance of notifications. The State Government in exercise of its power under the delegating notification, has made various orders restricting dealing in essential commodities, including kerosene oil by making an order known as "west Bengal Kerosene Control Order, 1968". The said order was made in terms of the delegating notification dated 18th June. 1966.

( 7 ) THE learned counsel appearing for the State submitted that whereas under the other orders made by State of West Bengal, a distinction has been made between the wholesale dealers and the retail delates in terms of the West Bengal Keresene Control Order, 1968, there exist only one category of dealer, i. e. who has been granted licence from the office of the State Government authorised to trade in kerosene oil.

( 8 ) THE learned counsel, therefor