R. K. Bag, J. - (1.) The first petitioner of W.P. No.33258(W) of 2013 is a registered association of M. R. Dealers in West Bengal. The first petitioner of W.P. 35302(W) of 2013 is a registered association of Fair Price Shop Owners of urban areas of West Bengal. The first petitioner of W.P.1132 of 2016 is a registered association of M. R. Distributors of West Bengal. The petitioners of W.P. 33258(W) of 2013 and the petitioners of W.P. 1132 of 2016 have challenged the legality and validity of West Bengal Public Distribution System (Maintenance and Control) Order, 2013 (hereinafter referred to as "State Control Order of 2013"), whereas the petitioners of W.P. 35302(W) of 2013 have challenged the legality and validity of West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2013 (hereinafter referred to as "State Urban Control Order of 2013"). The petitioners are, thus, representing the subsisting dealers and distributors who are carrying on business under the provisions of the impugned State Control Orders of 2013. The common question involved in these three writ petitions is the vires of the impugned State Control Orders of 2013.
(2.) 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. The Central Government can delegate the power to make orders or issue notifications under Section 3 of the Essential Commodities Act, 1955 in relation to such matters and subject to such conditions as may be specified in the direction by any officer or authority subordinate to it or by the State Government or such officer or authority subordinate to the State Government. By virtue of Section 5 of the Essential Commodities Act, 1955 the State Government can make orders or issue notifications under Section 3 of the said Act in relation to such matters and subject to such conditions as may be specified in the direction given by the Central Government and such power can be exercised by the State Government or any officer or authority subordinate to the State Government. In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955, the Central Government made the Public Distribution System (Control) Order, 2001 (hereinafter referred to as "Central Control Order of 2001") for maintaining supplies and securing availability and distribution of essential commodities under Public Distribution System, which came into force on August 31, 2001. The State Government made the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (in short "State Control Order of 2003") and the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2003 (in short "State Urban Control Orders of 2003") in exercise of powers delegated by the Central Government. The said State Control Order of 2003 and State Urban Control Order of 2003 were repealed by the impugned State Control Orders of 2013, which were made by the State Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 read with the Government of India, Ministry of Consumer Affairs, Food and Public Distribution (Department of Food and Public Distribution) Order No.GSR 630(E) dated August 31, 2001, and the same came into force on August 8, 2013 and on August 12, 2013 respectively. While the State Urban Control Order of 2013 is applicable to specified urban areas of West Bengal, the State Control Order of 2013 is applicable to the rest of the State of West Bengal. Both the above two impugned State Control Orders of 2013 have been 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.
(3.) Mr. Shyamal Sarkar, Learned Senior Counsel appearing on behalf of some of the petitioners has advanced his argument on the following four counts: (i) the State Control Order of 2013 being delegated legislation does not enjoy the immunity as a statute and is more vulnerable as the entire field in this regard is occupied by the Central Government, (ii) the said impugned State Control Order is beyond delegated power as prior concurrence of the Central Government was not obtained by the State Government in compliance with the Notification, GSR 800 dated June 9, 1978 issued by the Department of Food, Ministry of Agriculture, Government of India, (iii) the said impugned State Control Order is beyond legislative competence of the State Government as many provisions are contrary to and inconsistent with the provisions of the Central Control Order of 2001 and in excess of delegated power under paragraph 7 read with paragraph 5 of annexe of the Central Control Order of 2001, and (iv) the said impugned State Control Order is unworkable, vague, impossible to implement and thereby manifestly arbitrary and violative of Article 14 of the Constitution of India. By referring to the provisions of paragraphs 6, 9, 16, 17, 18, 19, 23, 24, 25, 29, 30, 31, 34, 36 and 37 of the State Control Order of 2013, Mr. Sarkar submits that those provisions are beyond the power delegated to the State Government under Section 3(2) of the Essential Commodities Act, 1955 as prior concurrence of the Central Government was not obtained in compliance with the direction contained in Notification GSR 800 dated June 9, 1978 issued by the Department of Food, Ministry of Agriculture, Government of India. By comparing the provisions of paragraphs 2(e), 6, 12, 16, 19(6), 17, 19(17), 21(i), 23, 24, 30, 2(u) (v), 31, 36, 37 of the State Control Order of 2013 with the corresponding provisions of the Central Control Order of 2001, Mr. Sarkar has demonstrated how the State Government has made various provisions of the State Control Order, which are contrary to and inconsistent with the provisions of the Central Control Order of 2001 and thereby those provisions are beyond the delegated power under section 5 of the Essential Commodities Act, 1955. By referring to various provisions of the State Control Order of 2013, Mr. Sarkar has also demonstrated that the said provisions cannot be implemented and worked out and as such those provisions are manifestly arbitrary and violative of Article 14 and Article 19(1)(g) of the Constitutions of India. He has relied upon series of authorities of the Supreme Court and various High Courts, which I would like to deal with in the appropriate stage of this judgment.;