JHABARMAL AGARWALLA Vs. N B DAS GUPTA
HIGH COURT OF CALCUTTA
Click here to view full judgement.
(1.)The two petitioners in this rule are partners of a registered partnership firm named Nirmal Cold Storage (hereinafter referred to as the firm). Their case is as follows: The firm wrote a letter to the Licensing Officer and Additional Director of Agriculture of the Government of West Bengal (respondent Nos. 2 and 1) on November 3, 1970 informing them that they intended to build a cold storage at Chandrakona Town and they wanted to know formalities in connection with the licence to be obtained. The firm was asked by a letter dated November 18/19, 1970 by the respondent No. 1 to inform the office about the completion of the construction of the cold storage and to ask for application for license under the West Bengal Cold Storage (Licensing and Regulation) Act, 1956 (West Bengal Act VI of 1966) (hereinafter referred to as the Act). At the relevant time almost all the cold storages of West Bengal were insulated by saw-dust and paddy husk and the respondent No.1 did not give any intimation as to the materials with which the insulation was to be completed by the petitioners. The petitioners completed the construction of the cold storage investing about Rs. 12 lacs including Rs. 5 lacs taken as loan from the West Bengal Industrial Development Corporation. After completing the construction of the cold storage with saw dust and paddy husk insulation the petitioners filed an application for licence under section 4(1) of the Act in the requisite form with the necessary treasury receipt for Rs.200 as licence fee. The petitioners were informed by an officer of the department that the licence would not be granted to the petitioners as the cold storage had been insulated with paddy husk and saw-dust though this was the usual practice in West Bengal. The petitioners made a written representation on March 22, 1971 to the said respondent stating that they were completely unaware that paddy husk or saw dust insulation was not permissible under the rules and they have made the insulation following the usual practice with all cold storages. The petitioners further stated that they had taken loan of Rs. 5 lacs from the said Corporation which granted the loan only after the Government had approved scheme. The petitioners further stated that they had to store a quantity of potato booked by them inside the storage as they were pressed by the cultivators to avoid dire consequences. This was done on March 18, 1971 as it was anticipated that the Inspector would visit the cold storage on 16th or 17th instant. The petitioners stated that they would suffer heavy financial loss if the licence was not granted and the cultivators would also suffer serious loss and the stock of potatoes would be a waste. They stated that they were ready to make tentative addition and alteration if possible. It was further stated that as soon as the current season would be over they would suitably change the insulations as required under the rules. In respect of the said representation the petitioners were informed by the respondents by a letter dated March 25, 1971 that the Government was unable to issue license unless the insulating materials were changed with the approval of the Licensing Officer. On the same day by another memo, the petitioners was informed that they had contravened the provisions of the Act by engaging in cold storage business without licence and they were liable to be prosecuted. On April 24, 1972 an enquiry was made by the respondent No. 1 as to whether the insulation had been changed as required for issue of licence. On June 4, 1971 the District Enforcement Office (respondent No. 3) started prosecution under section 21 of the Act against the petitioners and others and seized the stock register and other documents and again on June 22, 1971 the stock of potatoes was seized in connection with Chandrakona, P.S. Case No.5 of June 4, 1971. On June 22, 1971 the respondent No. 1 issued a show-cause notice on the petitioners informing that as no report about the change of insulation was received from the petitioners as required as required under the West Bengal Cold Storage (Licensing and Regulation) Rules, 1967, it was presumed that the insulation of the cold storage had not been changed. The petitioners were asked to show cause why the application for license under Rule 3(1) should not be refused.
(2.)The petitioners state and contend that Rule 11(5) of the Rules is bad in law on account of excessive delegation of legislative function to the Licensing Officer as the legislature has provided no criteria or standard or any principle on which any particular material should be approved by the Licensing Officer for the purpose of insulation of cold storages. The powers conferred by Rule 11(5) on the Licensing Officer to add to the materials already mentioned in the rules without any guidelines are uncanalised and uncontrolled. No qualification has been prescribed for appointment of a Licensing Officer. It was further contended that the provisions in the said Act and its rules are in contravention of Article 304(b) of the Constitution imposing unreasonable restrictions on the freedom of trade and section 2(2) of the Act and Rule 11(5) of the Rules are hit by Articles 19(1)(f) and (g) of the Constitution and not protected by sub-section (6) thereof as the restrictions are unreasonable. Further the provisions for seizure are also without jurisdiction as there are no provisions therefore in the Act or rules and the seizures are in contravention of section 165 of the Criminal Procedure code as no reason has been recorded as required for such seizure. Further the petitioners referred to the Cold Storage Order issued by the Central Government in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 which did not provide for any insulating materials necessary for the purpose, leaving a choice to the owners for selection of the materials for insulation. The said order, it was stated, has been enforced in the rest of India except West Bengal since May, 1969. It was contended that in view of the cold storage order issued under the Essential Commodities Act, the West Bengal Legislature had no competence to make law for the cold storage relating to any essential commodity. Further paddy husk and saw-dust have been permitted to be used by the other cold storages as insulating materials and they are also accepted as recognized materials for the purpose of insulation and accordingly proceedings against the petitioners are violative of Article 14 of the Constitution. On these allegations the petitioners moved this Court in Constitutional Writ Jurisdiction praying inter alia for declaration that the Rule 11(5) of the Rules is bad due excessive delegation of legislative functions and the said Act and Rules are ultra vires the Articles 14, 19(1)(f) & (g) and 304(b) of the Constitution. The petitioners also prayed for writ commanding the respondents to recall the show-cause notice for rejecting the application for licence and from proceeding with the Case No.5 of Chandrakona Police Station and also for Writ in the Nature of Certiorari quashing of the said proceeding.
(3.)On this application this Court issued a rule in terms of the prayer mentioned above but no interim order was granted at that time giving liberty to the petitioners to pray for interim order on notice to the respondents. It appears that thereafter an application was filed on August 23, 1971 for restraining the respondent from proceeding with Rule 5 of the Rules as also with the Case No. 5 of Chandrakona P.S. under section 21 of the Act. On the hearing of this application no appearance was made on behalf of the respondents in spite of service and accordingly the Court allowed the application and granted the interim order prayed for. Thereafter, an application was filed on behalf of the said respondent No.4 on January 12, 1972 for vacating the interim order. The said application was directed to be heard along with the main rule.
Copyright © Regent Computronics Pvt.Ltd.