2017 Supreme(Cal) 523

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
RANJIT KUMAR BAG, J.
West Bengal M. R. Dealers’ Association & Another – Petitioner
Versus
State of West Bengal and Others – Respondent
W. P. No.33258(W) of 2013 With W.P. No.35302(W) of 2013 With W.P. No.1132 of 2016 With G.A.1882 of 2017 G.A.1542 of 2017
Decided On : 26-10-2017

Headnote:

The impugned State Control Orders of 2013 were challenged as ultra vires the provisions of the Essential Commodities Act, 1955, and beyond the authority delegated to the State Government under section 5 of the Essential Commodities Act, 1955 and in violation of Notification vide GSR 800 dated June 9, 1978 issued by the Department of Food, Ministry of Agriculture, Government of India and also violative of Articles 14 and 19(1) (g) of the Constitution of India.

Fact of the Case:

The Parliament enacted the Essential Commodities Act, 1955 in the interest of the general public for the control of the production, supply and distribution of, and trade and commerce in certain commodities which are enumerated as Essential Commodities in Section 2(a) of the said Act. The object of the Act is to secure availability of essential commodities to the general public at fair prices and to protect their interest by way of equitable distribution of essential commodities. The legislature has delegated the power to the Central Government under Section 3 of the Essential Commodities Act, 1955 for issuance of orders to provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein, if the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations.

Finding of the Court:

The Court held that the provisions of the impugned State Control Orders of 2013 are legal and valid, except the provisions incorporated in paragraph 2(e), 6, 34, 36, 37 and imposition of fine in paragraph 31(c) of the State Control Orders of 2013 and the provisions incorporated in paragraphs 2(c), 7, 31, 33, 34 and imposition of fine in paragraph 29 of the State Urban Control Order of 2013 which are struck down as ultra vires the Central Control Order of 2001 and beyond the power delegated to the State Government by the Central Government under Section 5 of the Essential Commodities Act, 1955 read with notification GSR 800 dated June 9, 1978 issued by the Department of Food, Ministry of Agriculture, Government of India.

Issues: 1. Whether the State Government has the authority to make control order by virtue of power delegated to it by the Central Government? 2. Whether the impugned State Control Orders are in direct conflict with the Central Control Order of 2001? 3. Whether the impugned State Control Orders are made by the State Government in violation of the directions contained in the Central Control Order of 2001? 4. Whether some provisions of the impugned State Control Orders are not only inconsistent with or contrary to the provisions of the respective Central Control Order of 2001, but also totally unworkable and manifestly arbitrary and thereby violative of Article 14 of the Constitution of India?

Ratio Decidendi: 1. The Central Government has delegated limited power to the State Government to make orders in relation to foodstuffs, subject to certain conditions specified in the notification. 2. The State Government cannot make any order relating to any matter specified in the following clauses of sub-section (2) of Section 3 of the Essential Commodities Act: (1) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity; or (2) for controlling the price at which essential commodity may be bought or sold; or (3) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity – (i)to sell the whole or a specified part of the quantity held in stock or produced or received by him; or (ii) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him; or (4) for distribution or disposal of foodstuffs to places outside the state; or (5) for regulation of transport of any foodstuff under clause (d) of subsection (2) of Section 3 of the Essential Commodities Act. 3. The State Government can make order in connection with the matters specified in the following clauses of sub-section (2) of Section 3 of the Essential Commodities Act: (a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity, (b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food crops generally or of specified food crops, and for otherwise maintaining or increasing the cultivation of food crops generally, or of specified food crops, (c) for controlling the price at which essential commodity may be bought or sold, (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity, (e)for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale, (f) for requiring any person holding in stock, or engage in the production, or in the business of buying or selling, of any essential commodity – (i) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or (ii) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, (h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters, (i) for requiring persons engaged in the production, supply or distribution of, or trade and commerce in , any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order, (ii) for the grant or issue of licences, permits or other documents, the charging of fees thereof, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such condition , and the adjudication of such forfeiture by such authority as may be specified in the order, and (j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveniences and animals and the seizure by a person authorised to make such entry search or examination – (i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be, committed and any packages, coverings or receptacles in which such articles are found; (ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act; (iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents. 4. The provisions of the impugned State Control Orders are legal and valid, except the provisions incorporated in paragraph 2(e), 6, 34, 36, 37 and imposition of fine in paragraph 31(c) of the State Control Orders of 2013 and the provisions incorporated in paragraphs 2(c), 7, 31, 33, 34 and imposition of fine in paragraph 29 of the State Urban Control Order of 2013 which are struck down as ultra vires the Central Control Order of 2001 and beyond the power delegated to the State Government by the Central Government under Section 5 of the Essential Commodities Act, 1955 read with notification GSR 800 dated June 9, 1978 issued by the Department of Food, Ministry of Agriculture, Government of India.

Final Decision: The provisions incorporated in the above paragraphs of the impugned State Control Orders are struck down as invalid and inoperative. The State respondents are directed not to give any effect to the said provisions contained in the impugned State Control Orders of 2013.