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.
(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.;