Calcutta High Court
Tulsidas Ghosh vs The State Of West Bengal & Ors. on 28 August, 1998
Equivalent citations: (1999)1CALLT146(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This write application is against the order dated 22.7.96 issued by the Sub-Divisional Controller, F&S, Baslrhat, whereby and whereunder the petitioner's application Tor grant of new kerosene oil retail licence against kerosene oil vacancy at Gacharati under Sankchura-Bagundl Gram Panchayat as contained in annexure 'D* to the write application, was rejected.
2. The question, which arises for consideration in this writ application is although short but an Interesting one. The said order dated 22.7.96 reads thus:
"Sub:--Your prayer, dt. 17.3.93, for a new K.OI1 Retail licence against the K.Oil vacancy at Gacharatl under Sankchura-Bagundi Gram Panchayat, P.S. Baslrhat against this office Notification No. 203(10), dt. 2.3.93.
3. Your aforesaid prayer is hereby considered but rejected by D.M. North 24-Parganas, as your proposed place of business stands within 8 K.M.S away from the Indo-Bangladesh Border. There is a Govt. ban on Issuance of licence in essential commodities within 8 K.M.S of Indo-Bangladesh Border."
4. It is stated in Affidavit-in-opposition, as annexed a copy of circular letter bearing No. 3397(86)FS dated 17.7.89 to the following effect :
'I am directed to state that as a measure of curb clandestine movement of essential commodities crossing the International border it has been decided that untlll further order no new wholesalers licences/permits/ registration certificates etc. for dealing in essential commodities, which are controlled by this Deptt. will be Issued within the 8 K.M. belt of such border without prior approval of the Government.
This order, however, would not apply to the issue of licences/permits/ registration certificates etc. for filling up of vacancies caused by surrender of a licence/permits, etc. by the holder on medical grounds, or death of the holder of a licence/permit etc. or cancellation of a licence/ permit etc. by the Govt."
5. Although prima facie, the said circular is not applicable in the case of the petitioner. Inasmuch as, by reason there of, only a restriction has been Imposed in the matter of grant of wholesale licence/permit, the petitioner has applied only for grant of a new retail licence. A person who is a citizen of India, has a fundamental right to carry on business in terms of Article 19(1)(g) of the Constitution of India. Such a fundamental right to carry on business may be curtailed or restricted by Imposing reasonable restriction in terms of Provision of statutes. Essential Commodities Act, 1955 is only one of such a statutes whereby and whereunder, right to carry on business has been curtailed.
6. Section 3 of the Essential Commodities Act, 1955 empowers the Central Government to make an order restricting trade/business in any essential commodity. Such an order may provide that no person will be entitled to carry on business save and except upon fulfilling the conditions laid down under a licence as granted thereunder.
7. In terms of section 5 of the Essential Commodities Act, 1995, the Central Government is empowered to delegate its power to the State Government/Union Territories. Such an delegation is made by Issuance of notifications. The State Government in exercise of its power under the delegating notification, has made various orders restricting dealing in essential commodities, Including kerosene oil by making an order known as "West Bengal Kerosene Control Order, 1968". The said order was made in terms of the delegating notification dated 18th June. 1966.
8. The learned counsel appearing for the State submitted that whereas under the other orders made by State of West Bengal, a distinction has been made between the wholesale dealers and the retail delates in terms of the West Bengal Kerosene Control Order, 1968, there exist only one category of dealer, i.e. who has been granted licence from the office of the State Government authorised to trade in kerosene oil.
9. The learned counsel, therefore, submits that the wholesale licence dealer of made in the context of the West Bengal Kerosene Control Order, 1968 may be read as dealer. Even assuming that the contention of the learned counsel is correct, apparently it appears that the Circular letter dated 17.7,89, which has been Issued by the State of West Bengal is wholly without jurisdiction. Apart from the fact that no restriction can be imposed by reason of only a Circular letter, which does not have the force of law, in the instant case, the said order has been issued in excess of its jurisdiction by the State of West Bengal, as in terms of delegating notification, the State Government has been authorised to make an order the Essential Commodities Act, 1955 in respect of the essential commodities. The State of West Bengal while framing other orders by exercising its power under the delegating notifications Issued by the Central Government, must act within the four corners thereof. If therefore, the State of West Bengal was of the opinion, that a ban to carry on business should be Imposed within a distance of eight kilometres from Indo-Bangladesh Border, the same could have been done only by making an amendment in the respective Control orders and not by reason of Circular letter.
10. In that view of the matter, the Circular letter must be held to have been Issued wholly Illegally arid without Jurisdiction.
11. For the reasons aforesaid, the Impugned order dated 22.7.96 is quashed and the Licensing Authority is hereby directed to consider the petitioner's application for grant of licence in terms of the provisions of the West Bengal Kerosene Control order, 1968 at an early date and preferably within a period of twelve weeks from the date of communication of this order in accordance with law.
The writ application is thus allowed but without any order as to costs.
Let urgent xerox certified copy. If applied for by the respective parties, be supplied to them by the concerned department on priority basis.
12. Application allowed