Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment rendered by a Division Bench of the Calcutta High Court holding that Clauses 9 and 10 of the Notification No.4784- F.S./FS/Sectt/Food/148-1/97, dated 19.12.1997 issued in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (in short the Act) read with Government of India, Ministry of Agriculture and Irrigation (Department of Food) Order No. G.S.R. 800 dated 8th June, 1978 was contrary to the policy declared under the Foreign Trade Development and Regulation Act, 1992 (in short Foreign Trade Act). Accordingly, it was held as follows:In view of our findings aforementioned it must be held that the order does not conform to the policy laid down by the Central Government in exercise of its power conferred upon it under Section 5 of the 1992 Act inasmuch as in terms thereof, the Central Government could not even itself interfere with the proclaimed policy relating to import and export adopted by it in terms of Section 5 of the 1992 Act. By the abovesaid notification order in question was made which was called West Bengal Rice and Paddy Control Order, 1997 (for short the Control Order).
(2.) Background facts in a nutshell are as follows: The notification in question was issued purportedly with a view to regulate the price and availability of rice in the State of West Bengal. The State Government in exercise of delegated power given under the Act, by the notification No.G.S.R. 800 dated 8th June, 1978 promulgated West Bengal Rice and Paddy (Restriction on Movement) Order, 1981 (in short Movement Order). Clause 5 of the said order authorizes Officers to enter into any premises and make search and seizure of essential commodities or vehicle etc. Vires of the said orders were considered by a Division Bench of Calcutta High Court. Thereafter, the Control Order was issued. Clauses 9 and 10 of the said Control Order are relevant for the purpose of the present dispute. They read as follows: 9. Regulation of storage of rice and paddy for export (1) No person shall store or attempt to store or transport any quantity of rice or paddy procured for export without a valid permit in Form D granted by the Director or by the Controller, if so authorized by the Government. (2) In the case of transshipment of stocks from one vehicle to another in exigencies, by an exporter without a valid permit such transshipment shall be made only with the prior permission of the nearest Controller, stating in total the reason for such transshipment. 10. Regulation of export of rice produced in West Bengal - No person shall export or attempt to export any rice or paddy produced or grown in West Bengal without a written authority granted by the Government in this behalf, and if the Government or such authorized officer is satisfied that such export of rice will not adversely affect the price and availability of rice in the local market, the Government or such authorized officer may grant authority for export of specified quantity and variety of rice as may be determined by the Government or such authorized officer.
(3.) Respondent filed a writ petition before the Calcutta High Court questioning the legality of the aforesaid clauses primarily on the ground that they were repugnant and inconsistent with the policy declared by the Foreign Trade Act. The State took the stand that the clauses in question are regulatory in nature and do not suffer from any infirmity.;