1. Common questions of law and facts are involved in these Rules. Accordingly, these were heard together. This judgment shall dispose of a bunch of forty writ petitions.

2. By a Gazette Notification dated August 3, 1978, the Governor in exercise of the power conferred by sub-paragraph (3) of paragraph 1 of the West Bengal Rationing Order 1964 was pleased to direct that the said order shall come into force on the 4th September, 1978 in Jadavpur Police Station amongst other. Thereafter, on the 11th of August, 1978 the Sub-divisional Controller of Alipore directed the wholesalers to surrender the respective licences on the ground that they would cease to function as wholesalers of rice, paddy and wheat and the licence for the said business shall automatically be invalid. They were directed to dispose of the entire stock before 4th of September, 1978, on which date the private trade in rice and wheat would be banned.

3. The West Bengal Rationing Order of 1964 was issued in exercise of powers conferred by S. 3 of Essential Commodities Act, 1955 read with order of the Government of India (in the Ministry of Food and Agriculture) Department of Food No. G.S.R 888 dated 28th June, 1961 as subsequently amended by the order of the Government of India no. G.S.R 1158 dated 14th August, 1964. By paragraph 1(2) of the said order it extended to the whole of West Bengal. Paragraph 1(3) says that, “it shall come into force in such areas and on such dates as the State Government may by notification in the official gazette direct.”

4. The West Bengal Rationing Order 1964 came into force in Calcutta, Burdwan, Asansole and extended to other industrial areas from time to time by notifications issued by the State Government in exercise of its power under paragraph 1(3) of the said order.

5. West Bengal Rice and Paddy (Licencing Control) Order 1967 (hereinafter referred to as the “Control Order 67)” was enacted on 5th December, 1967 by the Governor in exercise of the powers conferred under S. 3 of the Essential Commodities Act. It was enacted for maintaining supplies and for securing equitable distribution and availability at fair prices of rice and paddy. Paragraph 1(2) of the said order says. “It extends to the whole of West Bengal except the areas in which the West Bengal Rationing Order 1964 is for, the time being in force.”

6. The petitioners hold licences as wholesalers in rice and paddy under Paddy Control Order 1967. In one of the cases, the petitioner does no longer hold any existing licence. It is stated in the Government order No. 4017FS dated 1st August, 1978 that, the State Government has tentatively decided to extend statutoty rationing to certain area in greater Calcutta with effect from rationing week commencing from September 4, 1978. The Director of Rationing will select Ration Dealers, according to his requirements from amongst the retailers and distributors now operating in the areas in question under the modified rationing system or from outside for appointment as appointed retailers or appointed wholesalers as the case may be, provided that they are willing to be so appointed under the West Bengal. Rationing Order 1964. The ration dealers to be newly appointed may be tagged to the existing supply godown of the Food Corporation of India. The said order further provides, that with the introduction of statutory rationing private trade in rationing article viz. rice and wheat will be banned in the areas in question. Licenced wholesaler, registered dealers of rice and licenced dealers of wheat who are at present operating in this area will, therefore, cease to function as such from the rationing date and the area will be automatically excluded from the purview of the relevant licencing order. The licencing officer should, therefore, issue directions to the licenced dealers to the effect that they should dispose of their stock completely before the rationing date.

7. It is alleged by the petitioners that they have not been appointed as ration dealers in pursuant to the said order without any reason whatsover. It is stated in the petition that the purported order is illegal and made in excess of jurisdiction inasmuch as the Paddy Control Order 1967 has not been amended to give effect to the said purported order of banning the licences of the petitioners. It is the case of the petitioners that they will suffer irreparable loss not only for the closer of the business but also for payment of gratuity and notice pay to their employees in pursuant to the West Bengal Shop and Establishment Act, 1963, and other West Bengal Welfare Legislations for no fault on their part. The impugned order will cause unemployment for a large number of employees and would create a chaotic situation for no purpose. Being aggrieved by the aforesaid notification and the subsequent orders, the petitioners moved this Court under Art. 226 of the Constitution and obtained the present Rules.

8. Respondents have not filed separate counter affidavits in all these cases. It has been submitted by the State that since common questions arise so far as legal aspects are concerned, one comprehensive affidavit-in-opposition filed on behalf of the respondents in Nityananda Dey's writ petition and affirmed by Sunil Kanti Chatterji, the Director of Rationing may be adopted for the respondents in all the cases. It is stated in the said affidavits that the petitioners were operating in Modified Rationing Areas adjoining to the statutory rationing areas which are popularly known as “fringe areas”. There are actually two types of rationing areas in West Bengal viz. (1) statutory rationing area and (ii) modified rationing area. In the statutory rationing area, appointed retailers who are appointed for distribution of rationed or non-rationed commodities under West Bengal Rationing Order 1964, they get their supply of rice, wheat and sugar directly from the Food Corporation of India or from appointed wholesalers, where there is no direct supply arrangements from Food Corporation of India. The petitioners were given licence for the whole of West Bengal except statutory rationing areas. In modified rationing area, there are M.R dealers for distribution of rice, wheat and sugar to card holders and they operate on the basis of Agreements executed by them with the Government. There is no statutory obligation on the part of the State Government to supply rice, wheat or sugar in the modified rationing area. The petitioners can carry on their business so far as the rice is concerned throughout the West Bengal except the statutory rationing areas, as such the question of curtailment of their right to carry on business does not arise at all. The right of the petitioners of free trade in modified rationing areas in the whole of West Bengal remains unaffected and a very small area has been excluded in the greater interest of the general public. In view of the density of population, shrinkage of agricultural land, development of industry, new township etc. and also to stop outflow of food cereals from the village areas causing difficulties to the village people and to maintain stability of price, equitable distribution of essential commodities at fair prices, the State of West Bengal have decided to take some of the areas to be included in the statutory rationing area, in order to ensure regular supplies and have also decided to stop free trade of rice and wheat within those areas in the greater cause of public interest. From time to time statutory rationing areas were extended under various notifications. It is not extended for the first time.

9. Four sets of arguments have been advanced by the learned Counsel appearing on behalf of the different petitioners.

In Re: Kanailal Chowdhury & Co. It is contended by Mr. Somen Bose, appearing on behalf of the petitioners that powers for prohibiting any class of commercial or financial transactions relating to foodstuff are provided in clause (g) of S. 3(2) of the Essential Commodities Act, 1955. Notifications No. G.S.R 888, 1111 and 1158 did not confer power on the State Government to issue an order under S. 3(2)(g) of the said Act. Paragraphs 4 and 7 of the Rationing Order, 1964 and consequently paragraph 1(2) of the West Bengal Rice and Paddy Control Order, 1967 which says, “except the area in which the West Bengal Rationing Order, 1964 is for the time being in force” are ultra vires the powers of the State Government because at that point of time the powers under S. 3(2)(g) of the Act was not delegated. In support of his contentions Mr. Bose relied upon the decisions of Punjab, Allahabad and Orissa High Courts in the cases of Sujan Singh v. State of Haryana AIR 1968 Punj 363; State of U.P v. Suraj Bhan AIR 1972 All, 401; and Bijoy Kumar Routari v. State of Orissa AIR 1976 Orissa 138.

10. In the Punjab's case, the Punjab Essential Commodities (Regulation of Sale) Order, 1966 dated 23rd September 1976 was challenged. In the said order “essential commodity has been defined to mean the commodity specified in the schedule appended to the order. The schedule mentions the following commodities:—i) turmeric, ii) pepper, iii) chillies, iv) corriander and v) cumin, cloves etc. Paragraph 3 of the said order says, that, no person shall, in the ordinary course of business, sell or store or offer for sell in powder form any essential commodity or a mixture which has such commodity as an ingredient. Explanation: If any person who in the ordinary course of business stores any such commodity or mixture in powdered form in quantities exceeding 1 kilogram, he shall, unless the contrary is proved, be presumed to have stored such essential commodity for the purpose of sale. The petitioners in the writ petition contended that articles abovenamed were not “foodstuff”, within the meaning ascribed to that expression in the Essential Commodities Act, 1955, and in the absence of a notification of the Central Government, no addition can be made to the list of essential commodities contained in sub-clauses (i) to (x) of S. 2 of the said Act. The impugned notification was also attacked on the ground that it outstepped the jurisdiction and authority of the Government under S. 3 of the Act read with the relevant notification under S. 5 thereof. The Division Bench of the Punjab and Haryana High Court struck down paragraph 3 of the impugned order as ultra vires as it was outside the scope of the authority of the State Government delegated to it by the Central Government under S. 5 thereof.

11. In that case the court observed: whether what has been prohibited by the impugned order can be called a “commercial transactions” or not need not to be gone into the case before us, as it has been fairly conceded by the Advocate General that the order could not be upheld if it did not tall within the four corners-of the notification, dated June 9, 1966 whereby the powers of the Central Government under sub-s. (1) of S. 3 have been delegated to the State Government to the extent indicated in the said notification.

12. In AIR 1912 All. 401, U.P Foodgrains (Restrictions on Hoarding/Order, 1966 as amended by Amendment Order dated 1st February, 1967, was challenged. Under the amended order, a licence in form ‘B’ could not hold in stock more than 1000 quintals of all kinds of grain. The Court held that the power to pass order in the nature of the impugned order was not within the specific power under clause (d) of sub-s. (2) of S. 3 of the Essential Commodities Act, 1955. It was within the general power under sub-s. (1) of S. 3 but that general power, was not delegated to the State Government and accordingly, the impugned order was struck down.

13. In Bejoy Kumar Routrai v. State of Orissa AIR 1976 Orissa 138, the Court was of opinion that the definition of “land holder’ would not equate with the concept of “holding in stock” covering S. 3(2)(f) of the Act. Accordingly, it was held that imposition of levy under the impugned order could not be in conformity with the provisions of S. 3(2)(f) of the Essential Commodities Act.

14. In order to appreciate the arguments it is necessary to set out S. 3(2)(g) of the Essential Commodities Act and paragraphs 4 and 7 of the Rationing Order, 1964.

Section 3(2)(g):— for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs or cotton textiles which, in the opinion of the authority making the order, are, or, if unregulated are likely to be, deterimental to the public interest.

Rationing Order— Paragraph 4.—:— No person other than an appointed establishment proprietor, an appointed wholesaler or an appointed retailer, shall, on and after the rationing date, supply or offer or attempt to supply or knowingly permit to be supplied by any agent employee or servant of such person any rationed article to any person in any rationed area in which such article is rationed.

Paragraph 7:— No person shall, on or after the rationing date in a rationed area in which an article is rationed obtain or attempt to obtain such rationed article except for household consumption or for establishment consumption or in connection therewith and except under and in accodance with the provisions of this order and of the regulations made thereunder.

Establishment proprietor, wholesaler and retailer have been defined in the Rationing Order and the rationed article has also been defined. Paragraph 4 puts the restriction by prohibiting supply of rationed article by persons other than those various categories appointed under the Rationing Order. Such provisions are necessary for the purpose of safeguarding the interests of the dealers appointed under the Rationing Order. Paragraph 7 prohibits obtaining rationed article in a rationed area otherwise for household or establishment consumption.

15. The object of rationing is for maintaining or increasing supplies of essential commodities and for securing their equitable distribution. In my opinion, those paragraphs do not amount to any prohibition or regulation of any class of commercial or financial transactions in foodstaff, as envisaged in sub-clause (g) of S. 3(2) of the Act.

16. To understand the nature of commercial or financial transaction, West Bengal Wheat and Wheat Products (Licensing, Control and Prohibition of Certain Classes of Commercial Transactions) Order, 1973 may be looked into. That order was issued under clause (g) of sub-s. (2) of S. 3 of Essential Commodities Act, 1955. Paragraph 3(2)(a) of that order lays down that no dealer shall purchase for sale or sale or to store for sale more than 1000 quintals of wheat or wheat products and wheat products in any combination. In paragraph 3(2)(b), a dealer having wheat or wheat products in excess of 15 quintals shall not dispose of the excess except in such manner and within such time as may be specified in an order in writing in that behalf by the licencing authority. Similarly, paragraph 3(3) lays down that no purchaser shall, except under and in accordance with the written authority granted in this behalf by the licencing authority in form (d) sell wheat grain by him or wheat products processed therefrom to any person other than the consumption, a flour miller, Food Corporation of India and a licencee. The above provisions would show what is meant by financial or commercial transaction.

17. Rationing is neither regulation nor prohibition of any class of commercial transaction in foodstuffs. It controls storage, distribution, disposal, sale etc. of foodstuff by permits or licences or otherwise, by appointing retailers or wholesalers through whom only supplies of foodstuff would be made to the ultimate consumer. Except for one's own consumption or consumptions of the family rationed articles could not be sold to any other person.

18. Mr. Chatterji, the learned Standing Counsel appearing on behalf of the respondents contended that the Rationing Order of 1964 did come under clause (d) of S. 3(2) of the Essential Commodities Act, 1955. It was further contended by Mr. Chatterji that assuming that the said power did not fall within clause (d); but the said order was saved by sub-s. (1) of S. 3 of the Act. Reliance was placed upon a Single Bench decision of this Court in Atulya Kumar v. Director of Frocurement and Supplies, AIR 1953 Calcutta 348.

19. In that case the West Bengal Foodgrains (Intensive) Procurement Order, 1952 was challenged. That order was passed under the Essential Supplies (Temporary) Powers Act, 1946. Section 3(1), which was almost in identical terms with the corresponding S. 3(1) of the Essential Commodities Act, 1955. That leavy order was issued under subs. (1) of S. 3 of Essential Supplies (Temporary) Powers Act, 1946 read with clauses (c)(d)(f)(h)(i)(j) of sub-s. (2) of that section. It was contended in that case that none of those clauses authorised the levy. Clause (f) was the nearest to give that power. Under that clause any person holding stock of essential commodities was required to sell, whereas most of the orders under the said Levy Orders were issued in respect of crop in the field about which it could not be said that anybody was holding stock thereof. Sinha J. (as he then was) held that the power to promulgate the said Levy Order was derived from sub-s. (1) of S. 3 of the Act. The learned Judge observed that the power to promulgate an order of such description was derived from sub-s. (1) of S. 3 of the Act. That power is general in its terms, and authorises inter alia the promulgation of any order providing for regulating or prohibiting the production, supply and distribution of, and trade and commerce in, any essential commodity, in so far as it appears necessary or expedient to do so for maintaining or increasing supplies or for securing their equitable distribution and availability at fair prices. Sub-section (2) of S. 3, commences with the words “without prejudice to the generality of the powers conferred in paragraph (1) etc. This shows that sub-s. (2) confers no fresh powers but provides illustration of the general powers conferred by sub-s. (1). This has been held by the Supreme Court in Santosh Kumar v. State, AIR 1951 SC 201 following the Privy Council decision in Emperor v. Shib Nath Banerji, AIR 1945 P.C 156.

20. In State v. Suraj Bhan AIR 1972 All, 401 at 405, the Division Bench of the Allahabad High Court considered Atulya Kumar's case and observed, if Sinha J., intended to lay down that the delegation of powers under the various sub-clauses of S. (2) will also include the delegation of all powers under sub-s. (1), then with all respect, we find ourselves unable to agree to that view”.

21. A Bench decision of the Patna High Court in the case of T.M Prasad v. State AIR 1972 Patna 250, observed that under S. 5 of the Act the Central Government had not delegated to the State Government all their general powers to make the order under sub-s. (1). Only such powers under that section were delegated as were enumerated in some of the clauses of sub-s. (2)

22. The Division Bench in Orissa High Court in Bejoy Kumar v. State Orissa AIR 1976 Orissa 138 at 148 took the same view that power under sub-s. (1) of S. 3 was not made the subject matter of delegation, following the above two decisions of the Allahabad and Patna High Courts.

23. The various clauses of S. 3(2) of the Act cannot be made operative independently by any notification without deriving the general powers under S. 3(1) of the Act. Those clauses deal with the matters and conditions that are to be imposed by the Central Government by a notified order under S. 3. Sub-section (2) of S. 3 of the Act starts with, “without prejudice to the generality of the powers conferred by sub-S. (1)”. It means that without impairing the pre-existing right conferred by sub-s. (1) of S. 3 an order can be made in relation to such matters and subject to such conditions as may be specified in that direction. So, in my view, without delegating the general powers under S. 3(1), specified matters could not be delegated under sub-s. (2) of S. 3.

24. In Santosh Kumar Jain v. The State AIR 1951 SC 201, the Manager of a Sugar Factory was prosecuted as the company had deliberately failed to comply with the orders for supply of sugar issued from time to time under the provisions of Sugar and Sugar Products Control Order, 1947. In that order the Governor of Bihar authorised the District Magistrate of Patna and the Special Officer-in-Charge of Rationing of Patna to search the sugar held by the Jagadishpur Zamindary Co., Bhita in the district of Patna which was about to commit a contravention of an order made under clause 7(i)(ii) of Sugar and Sugar Products Control Order, 1947 and direct that 5000 maunds of sugar held in stock by the said company would be seized. It was contended on behalf of the appellant that an order for seizure could be made only subject to the conditions and limitations specified in clause (j) of sub-s. (2) of S. 3 of the Essential Supplies (Temporary Powers,) Act, 1946 which is similar to the present Act, Patanjali Sastri, J. (as he then was) observed: “It is manifest that sub-s. (2) of S. 3 confers no further or other powers on the Central Govt. than what are conferred under sub-s, (1) for it is ‘an order made thereunder” that may provide for one or the other of the matters specifically enumerated in sub-s. (2) which are only illustrative as such enumeration is “without projudice to the generality of the powers conferred by sub-s (1)”. Seizure of an article being thus shown to fall within the purview of sub-s. (1), it must be competent for the Central Govt. or its delegate the Provincial Govt. to make an order for seizure under that sub-section apart from and irrespective of the anticipated contravention of any other order as contemplated in cl. (j) of sub-s. (2).”

25. In Orissa, Patna and Allahabad cases referred to by Mr. Bose, although reference was made to Shib Nath Banerji's case (AIR 1945 PC 166) but no reference was made to the decision of the Supreme Court in Santosh Kumar's case. Moreover, Misra J. in Bijoy Kumar's case (AIR 1976 Orissa 138) did not state any reason that why the principle as laid down by the Privy Council in Shib Nath Banerji's case could not be followed. In view of the decision of the Supreme Court in Santosh Kumar's case. I respectfully agree with the view of Sinha J. (as he then was) in Atulya Kumar's case (AIR 1953 Calcutta 348), and hold that neither paragraphs 4 and 7 of the Rationing Order of 1964 and nor paragraph 1(2) of the West Bengal Rice and Paddy Control Order 1967 are ultra vires on the ground that those provisions were not covered by a valid delegation of legislative powers on the State Government. Moreover, as I have already found that clause 2(g) of S. 3 of the Act is not attracted to the present case, so it is immaterial whether the impugned provisions in the Rationing Orders 1964 are covered under the general powers conferred under S. 3(1) of the Act or not.

26. Mr. Dipankar Gupta, appearing for the petitioner in Re: Sm Lila Biswas's case, contended that by extending the area of operation of the Rationing Order 1964 by the impugned notification dated 3.8.78 in the Jadavpur area, the petitioners' right to carry on business under the West Bengal Rice and Paddy Licencing and Control Order 1967 could not be automatically wiped of and consequently the licences granted under the 1967 Order could not be rendered invalid. It is submitted that both the 1964 Rationing Order as well as the 1967 Paddy Licencing Order are pieces of delegated legislation under the Essential Commodities Act, 1955. The delegated legislation which is subject to the formation of opinion could not be left to the executive to be applied at a future indetermination period. The “push bottom” procedure is not permissible in the case of delegated legislation which is to be exercised upon the formation of opinion. Once circumstances exist and the necessary satisfaction is formed, it is not permissible to postpone the operation of the law in a future period since it could not be said that in future such circumstances would come to exist. In the present case when the 1964 Rationing order was enacted it extended to the whole of West Bengal. It must necessarily follow that the authority was satisfied that the circumstances for its applicability existed in 1964 in the whole of West Bengal. In that situation it was not permissible to enforce the 1964 Order piece-meal. It is contended that the exercise of power of delegated legislation would depend on formation of the requisite opinion and the formation of such opinion would depend on the circumstances existing for the time being—(a) if the administrative authority is satisfied that the existing circumstances at a given point of time required the delegation of a particular scheme of control to the whole of the State, in that case, it could not be said that the said scheme would come into operation from time to time in future inasmuch as S. 3 of the Essential Commodities Act did not authorise delegated legislation to be applied from time to time. By making provisions in 1964 Order that “it may be extended in future”, the Executive Authority was making provisions for future contingencies which may or may not arise. Exercise of powers of delegated legislation in such fashion was bad since it was not passed on existing circumstances.

27. In Hamdard Dawakhana v. Union of India AIR 1960 SC 554, the Supreme Court has laid down the distinction between conditional legislation and delegated legislation. The Supreme Court said that the distinction between conditional legislation and delegated legislation is that, in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that a legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by a delegated legislation the delegate completes a legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend, ****when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner or carrying on it into effect, it is conditional legislation.

28. Both 1964 Rationing Order and 1967 Paddy Licencing Order are pieces of delegated legislation under the Essential Commodities Act 1955. It is well settled that once the executive exercises the power of delegated legislation the same becomes a part of a statute. The essential legislative function is the determination of the legislate policy and its formation as a rule of conduct. In R. v. Burah, 5 IA 1978, the Privy Council held that in enacting the Garo Hills Act the Legislature decided that it was fit and proper that the adjoining districts of Khasi Jayantia Hills should also be removed from the jurisdiction of the courts, not necessarily and at all events, but if and when the Lt. Governor should think it desirable to do so. As regards the delegation of the existing of future laws to the Khasi and Jayantia Hills, it was left entirely to the discretion of the Lt. Governor in which part that law would be extended in future.

29. Now, in the instant case the 1964 Order extend to the whole of West Bengal. The delegate viz. the Governor completed the legislation by extending the Rationing Order to the whole of West Bengal, leaving it to the discretion of the executive Government the time and manner of carrying its legislation into effect on determination of the areas to which the said order would be extended in future by providing sub-paragraph (3) to paragraph 1 itself where it says “it shall come into force in such areas and on such dates as the State Government may by notification in the official gazette direct”. A power conferred on the outside authority to bring the law into a force was conditional legislation and not delegated legislation.

30. In Sardar Inder Singh v. State of Rajasthan AIR 1957 SC 510. Venkatarama Aiyar, J. observed that in the Delhi Laws case it was held that a power conferred on an outside authority to bring an Act into force was conditional and not delegated legislation and was valid. The learned Judge added that in principle, it was equally competent to the legislature to pass a law and prescribe the duration which appeared to the legislature to be then necessary having regard to the circumstances then existing, and to confer on an outside authority a power to extend the duration for a further period if that authority was satisfied that the state of facts which called for the legislation continued to exist. When the power was exercised by the outside authority, the law that would operate was the law which was enacted by the legislative authority in respect of “place, person, laws, powers” and it was clearly conditional and not delegated legislation and was valid.

31. The result, therefore, is that the power to extend an Act to other areas or to extend all or some of the provisions of the Act to other area or to extend the duration of an Act or to bring the Act into force is not void for impermissible delegation of legislative power.

32. In Raj Narayan v. Chairman, Patna Administrative Committee AIR 1954 SC 569 the Supreme Court followed the decision of Burah's case and upheld the validity of laws which authorise the exeutive to apply to a new area future Central or Provincial laws.

33. It is contended by Mr. Gupta that in Rajendra Narayan's case seven propositions laid down by the Supreme Court in Delhi Laws case have been enumerated. The 5th proposition which was declared ultra vires in Delhi laws case would be applicable to the present case.

34. The 5th proposition says: where authorisation was to repeal laws already in force in the area and either substitute, nothing in their places or substitute other laws. Central or Provincial, with or without modification.

35. Paragraph 1(2) of 1967 order provides “it extends to the whole of West Bengal except the areas in which the West Bengal Rationing Order 1964 is for the time being in force.”

36. Under the above provisions, no authorisation was given to the executive to repeal laws already in force. Proposition 7 was held to be intra vires in the Delhi Laws, viz. “where the authorisation was to apply future laws under the same conditions”. The power to apply to a new area, existing or future laws prevalent in another area, necessarily involves the repeal of the existing law in the new area by necessary implications. Such repeal by implication has been recognised in Ziaullah Khan v. U.P AIR 1955 All. 554, where the court held that the power to extend a law to a specified locality necessarily involved a repeal by implication of existing law. Consequently an express power to repeal laws which would stand impliedly repealed, did not involve an impermissible delegation of legislative power.

37. The licence granted under 1967 order clearly shows that the area of business is in the whole of West Bengal except statutory rationing areas. That is the contractual position into which the petitioners entered with the licencing authorities.

38. Licences and permits are well recognised modes of regulating the use of property, or the conduct of a trade or business. Restriction imposed on the rights of property as regards essential commodities have been held to be reasonable restrictions. These restrictions, in that form of taking over some portions of the petitioner's area of business are reasonable restriction in interest of general public.

39. When a notification is issued by the Governor in exercise of the powers under sub-paragraph (3) of paragraph 1 of the Rationing Order which was made under S. 3 of the Essential Commodities Act, it is not necessary to recite the requisite opinion within S. 3(1) of the Essential Commodities Act inasmuch as it is implicit in such notification that the requisite opinion was formed in terms of sub. (1) of S. 3 of the Essential Commodities Act vide (C. Lingam v. Government of India AIR 1971 SC 474).

40. The Rationing Order 1964 did not come into operation immediately on the passing thereof. It conferred powers under paragraph 1(3) to enforce the said order to such are and on such date by issuing notifications. This provision is to be construed as extending whenever it is necessary or expedient for the purpose of bringing the Rationing Order in effective operation, if, the authority is satisfied that the state of facts which called for the promulgation of the Order continues to exist. To issue notifications for extending the area of operation, no fresh formation of opinion or satisfaction is required inasmuch as such power has been expressly conferred by paragraph 1(3) of the Order itself.

41. Mr. Noni Coomar Chakraborti, appearing for the petitioner in Lakhi Narayan Samadar's case (C.R No. 5914(W) of 1978) contended that though Essential Commodities Act has been placed in the 9th Schedule by the Forty-eighth Amendment Act, 1976 but the protection contemplated in Art. 31(B) of the Constitution will not be available to the impugned notification issued under S. 3(1) of the Essential Commodities Act, 1955. Reliance was placed upon the decision of the Supreme Court in Prag Ice and Oil Mills v. Union of India AIR 1978 SC 1296.

42. In Prag Oils Mills' case Mustered Oil (Price Control) Order, 1977 was challenged by several dealers on the ground that it violated Arts. 14, 19(1)(f) and 19(1)(g) of the Constitution. By majority opinion the Supreme Court held that on plain reading of Art. 31(B) the protective umbrella of the 9th Schedule takes in it ever-widening wings only the Acts and Regulations specified therein, but not orders and notifications issued under those Acts.

43. It is sought to be argued that if the 1964 Rationing Order had no application in Jadavpur area on the 5th December, 1967 when the Paddy Control Order, 1967 came into force, then it could not be extended by means of a notification dated 3rd August, 1978 because by such notification the Government would infringe the fundamental right of the petitioner to carry on business and restriction and/or prohibition so imposed are not in the interest of general public. In paragraph 31 of the petition it has been specifically averred which has not been contradicted by the respondents in their affidavit-in-opposition. It is further contended that the power to extend the order which has been done in the instant case by a notification dated 3rd August 1978 alleged to be exercised by the Governor in its executive capacity in exercise of the power in paragraph 1(3) is singularly absent therein. Such a power of extension must be given to the executive in clearest language. The impugned notification was issued by the Governor in its executive function. All subsequent orders issued by the officers of the State Government are all executive orders. These are typical examples of executive fiat by which citizen's specific right to carry on business which has been recognised by 1967 order is sought to be abridged and/or banned by means of an executive order. The impugned notification does not show that it has been made in public interest. The petitioners as licencees under Paddy Control Order have renewed their licences upto 31st of December, 1978 and in some cases upto 14th of June, 1979 and they hold the valid licences under a statutory order viz. 1967 Paddy Control Order. It is urged that by issuing the impugned notification by the Governor, the petitioners' right to carry on trade in rice and paddy under a statutory order could not be nullified. When the fundamental right has been shown to have been violated by a law, the onus is on the State to satisfy the court that the same has been made in the interest of general public.

44. In State Of Madras v. V.G Row AIR 1952 SC 196, the Supreme Court said that the test of reasonableness whereever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to be infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the time, should all enter into the judicial verdict.

45. The petitioners' fundamental right to carry on business is dependent upon obtaining licences from the licencing authority. So the petitioner did not acquire any absolute right to continue as dealers under the Paddy Control Order of 1967. The area of business shown in the licence as the whole of West Bengal “except statutory Rationing areas”. When the area of statutory rationing is extended, the licence under the said order of 1967 could not carry on business in such area as and when covered by statutory rationing. The petitioners' right to carry on business in other parts of State of West Bengal where 1964 Rationing Order has not yet been enforced, has neither been infringed nor taken away by the impugned notification. It is well known that there is acute shortage of rice in the rice eating areas in India, particularly in West Bengal. It is said that in view of the density of population, shrinkage of agricultural land, development of industry, setting up of new township and also to stop outflow of food cereals from the villages to town, it was decided by the Government to extend the area of rationing to Jadavpur area.

46. In Shree Meenakshi Mills Ltd. ; v. Union Of India. AIR 1974 SC 366, the Supreme Court observed that in deterning the reasonableness or a restriction imposed by law in the field of industry, trade or commerce it has to be remembered that the mere fact that some of the those who were engaged in those are alleging loss after the imposition of law will not render the law unreasonable. By its very nature, industry or trade or commerce goes through periods of prosperity and adversity on account of economic and sometimes social and political factors.

47. Increasing or maintaining supplies of foodstuff or securing their equitable distribution and availability are obviously in the public interest and, any portions of the area of business of the petitioner for taking away for that purpose, amounts to resonable restriction on the petitioners' right to trade or business.

48. In Narendra Kumar v. Union of India AIR 1960 SC 430, the Supreme Court held that the word “restriction” was wide enough to include prohibition provided it was reasonable and in the interest of the public. In that case, clause 3 of the Non-Ferrous Metal Order in effect abolished middlemen trade in non-ferrous metal and yet it was considered to be a reasonable restriction.

49. In Arunachal v. State of Madras, AIR 1959 SC 300, the Madras Commercial Crops Market Act was upheld, though its purpose was to eliminate middlemen.

50. In M.B Cotton Association Ltd. v. Union of India, AIR 1954 SC 634, the Supreme Court said that cotton was an essential commodity and, therefore, the State had the right to control, and even to prohibit transactions if it is evident. The Supreme Court observed that cotton being a commodity essential to the life of the community it was reasonable to have restrictions which may, in certain circumstances, extend to total prohibitions for a time, of all normal trading in the commodity.

51. As I have already said that notification was issued in exercise of powers conferred under paragraph 1(3) of the Rationing Order 1964. That power was conferred in the order itself and as such there has been no excessive delegation of legislative powers upon the executive.

52. The right of the petitioners to carry on trade under the Paddy Licence Control Order under which the licence is granted to them must be in terms of the said Control Order. Under the Control Order 1967 they can carry out the business in the areas except the rationing areas as laid down in paragraph 1(3) of 1967 Order, as such questions of nullifying any right granted under the statutory order does not arise in the present case.

53. Mr. Kaahi Kanta Maitra, appearing for the petitioner in Gopal Chandra Saba case contended that there was no provision in the West Bengal Rationing Order 1964 of automatic inoperative of the licences issued under the different control orders. So, according to him the validity of a period of licence granted under statutory provisions by the licencing authority could not be curtailed or nullified by implication and there could not be any automatic inviolative of the licences by implication inasmuch as petitioner's rights to trade under proper licences could be invalidated only by the expressed provisions of law and in conformity with the principles of natural justice after granting the petitioner a hearing.

54. It is true that the provisions have been laid down in the Control Order 1967 for the cancellation and suspension of a licence. As I have already said that although there is no express power in the 1967 order to repeal 1964 Rationing Order by extension of the said Rationing Order to the area covered under 1967 Control Order, but by necessary implications the area covered under the 1967 Paddy Control Order is automatically reduced and the said order became inoperative from the very date when the rationing area is extended to an area covered under 1967 Paddy Control Order. The provisions for cancellation of licence would be applicable where there has been any violation of 1967 Control Order. In the instant case as a matter of fact the question of cancellation of licences does not arise when the licences themselves become ineffective and inoperative by virtue of extending the operation of 1964 Rationing Order.

55. It is contended that notionally 1964 Rationing Order has been extended to the whole of West Bengal. But in fact it has come into force in Calcutta and in certain industrial areas in exercise of the powers conferred by sub-paragraph 1(3) of the Rationing Order. But by paragraph 1(2) of the Paddy Control Order 1967 it has been extended to the whole of West Bengal except the Rationing areas. So, it is argued that there was no area left where rationing order could be enforced in paragraph 1(3) of the said order without lifting the operation of 1967 order from the areas, where the impugned order is sought to be enforced by a notification.

56. Although the Rationing Order 1964 was extended to the whole of West Bengal but it was brought into operation subsequently and time to time to different areas in West Bengal by a notification issued under paragraph 1(3) of the order. The Paddy Control Order 1967 was extended to the whole of West Bengal but its operation was restricted only to those areas where “for the time being” the Rationing Order 1964 was enforced.

57. It is urged that the words ‘for the time being enforced” used in paragraph 1(2) of the Paddy Control Order 1967 has to be strictly construed in the context of the instant case. Reference was made to an English decision in Stone v. Cook (1917) 2 K.B at p. 885 where the words came in for interpretation and it was held that the words meant ‘on the appointed day”. It is further submitted that in the case of Bagallcot City Municipality v. Bagalkot Cement Co. (1963) (1) Suppl. SCR 710 at page 711, as a result of extension of the area of the municipality by notification certain taxes become leviable. The Supreme Court held that there could not be imposition of tax by implication.

58. The word “for the time being enforced” has been explained in Stroud's Judicial Dictionary, Fourth Edition, it is said that the general sense of these words is that, of the time indefinite and refers to an indefinite state of facts which will arise in the future and which may vary from time to time. It depends upon the context where those words referred to a particular period of time or to several periods of time.

59. Lord Westbury L.C in the case of Ellison v. Thomas (1862) in Deg. J. & S. 18 at page 26 observed that the expression “for the time being” may refer either to a particular point of time or several period of time, and that the interpretation to be adopted in each case dependent on the context. The words “for the time being” obviously mean several periods of time in view of the provisions made in paragraph 1(3) of the Rationing Order viz. “the rationing order shall come into force in such areas and on such dates as the State Government may notify”. The power of taxation is a practical and not a theoretical power. It is well settled that a power of taxation cannot be delegated. So, the principle as laid down by the Supreme Court in Bagalkot Municipality's case have got no application to the facts and circumstances of the present case. The extension of an Act does not necessarily mean the enforcement of such Act to the whole area where specific provisions have been made in the Act itself that it shall come into force on such dates and in such areas by issue of notification.

60. It is submitted by Mr. Maitra the right of the petitioner to trade is a fundamental right protected under Art. 19(1)(f) & (g) of the Constitution and that right has been re-enforced further by the statutory provisions of 1967 order. If that right was sought to be curtailed with the enforcement of the Rationing Order 1964 in the areas, then the authority concerned have to frame fresh Regulations in terms of paragraph 16(viii) of the Rationing Order 1964. It is further argued that since the petitioner's statutory right is sought to be impeached, an opportunity of being heard should be given before such right was taken away by the impugned notification.

61. Petitioner's right to trade was dependent upon obtaining a licence under 1967 Order. In the licence itself it is shown that the area of business is the whole of West Bengal except statutory Rationing areas. So the terms of the licence are part of the petitioners' contract which they entered into with the licencing authority. If under the terms of the contract the petitioners' licence became inoperative in view of extending the area of rationing, in that case, the petitioners cannot complain that their statutory right under 1967 Order or their fundamental right to carry on business have been infringed by the impugned notification. The petitioners would have been given the opportunity of hearing if their licences were cancelled under 1967 Order.

62. In S. Chandra Sekharan v. Tamilnadu (1974) 2 S.C.C 196 the Central Government terminated the agency of the petitioner for sale of levy sugar and appointed model shops and co-operative societies. It was held that such determination was valid because it was only termination of the contract. So, in my view, the natural justice does not come into play where the licences of the petitioner became ineffective for extension of the area of rationing where the petitioners in terms of their own licences were prohibited to carry on their business.

63. It is contended by Mr. Maitra that the Paddy Control Order 1967 having been enforced in the whole of West Bengal excepting the (Statutory Rationing Area), subsequent enforcement of the Rationing Order 1964 on an area where Paddy Control Order 1967 has already been enforced, the effect would be of super-imposing an earlier statutory order on later statutory order. Such a position is difficult to conceive from the legal and practical point of view the more so when the two statutory orders are in conflict with each other in material respect. The two orders are also irreconcevable. It is contended that as a result of such super-imposing of the earlier order the later statutory order already enforced could not by operation of law be treated as repealed by implication. The harmonious construction should warrant the view that an order which has the effect of taking away altogether a vested right which the petitioners have acquired, should be strictly construed. It should be presumed that the legislature did not intend to impair or destroy the natural human rights.

64. Where reference has been made in a later order, made at a different time, to an earlier order, in that case those two orders shall be taken and construed together as one system and as explanatory of each other. The 1964 Rationing Order has not been super-imposed on 1967 Paddy Control Order. Provisions have been made in the later order viz. 1967 Paddy Control Order that the later order will operate to all parts of West Bengal except covered by the rationing area. The licence which the petitioners held it was specifically excluded the rationing area. So, under the 1967 Paddy Control Order no vested right was created upon the petitioners to carry on their business in the area subsequently covered by the Rationing Order. By virtue of extending the rationing area their area of business will necessarily be reduced. This is repealed by implication.

65. It is next contended that as far as the portion of the area of the business of the petitioner to which the statutory rationing order has been extended, the State Government has taken over the trade completely. In other words, the State Government has created a monopoly in trading of food-grains in those areas. But as the State Government is distributing through appointed retailers in Calcutta and industrial areas and through appointed wholesalers and appointed retailers in Calcutta industrial extended area, no monopoly business has been created by the State or in favour of its agents by any law. The business viz. the right to supply rationing article through AIR shops would vest in owners or proprietors of such AIR shops and the profit and loss will be their's. Such profit and loss would, therefore, neither be of the State Government nor of the Food Corporation of India. Accordingly, it is argued that the total prohibition of trading rights would clearly come within the mischief of monopoly” although none of the essential features of monopoly right of the State are present. Reliance was placed upon the decision of the Supreme Court in Akadasi v. State of Orissa AIR 1963 SC 1047 at 1057.

66. By extending the Rationing Order 1964 to the areas where the petitioners were allowed to carry on their business under the Paddy Control Order 1967 the State has not taken over to itself the exclusive right of trading any rice, wheat and thus it is not created any monopoly. Only distribution of rationed commodities has been canalised through licenced dealers and wholesalers. In dealing with the attack against the validity of a law creating State's monopoly on the ground that its provisions impinge upon the fundamental rights guaranteed under Art. 19(1)(g), it is necessary to find out what is the purpose of the Act and its direct effect. If the effect of the said Act is indirect or remote then its' validity cannot be challenged.

67. In Akadasi's case, the provision of Orissa Kendu Leaves (Control or Trading) Act, 1961 was challenged. After the enforcement of the said Act the State acquired a monopoly in the trade of Kendu Leaves. The petitioner owned about 80 acres of land on which he grew kendu leaves which were used in the manufacture of biris. He challenged the Act contravening Art. 19(1)(f) and (g). The question arose whether Art. 19(6)(ii) authorised the State to employ agents other than the departments of the State or members of the service of the State. In that case the Supreme Court observed that limitation imposed by requirement of Art. 19(6)(ii) that the trade must be carried on by the State or by a corporation owned or controlled by the State cannot be widened and must be strictly construed. An agency could be permitted only in respect of trade or business where it appeals to be inevitable and where it works within the well recognised limits of agency. As I have found that by extending the 1964 rationing area no monopoly has been created by the State. So, it is not necessary for me to express any opinion whether the wholesalers and retailers appointed by the State Government could be regarded as agents in the narrow and strict sense of the term as contended by the Respondents.

68. Lastly it is contended that the order of the Sub-divisional Controller, Food & Supplies, Barasat dated 3rd of August, 1978 informing the wholesalers that with effect from 4th of September, 1978 private trading in rice will be statutorily banned in statutory rationing area and the wholesalers in the rice were directed to dispose of their stocks by 3rd of September, 1978 was illegal and without jurisdiction.

69. It appears that the similar order was passed on the 11th August, 1978 by the Sub-divisional Controller. Alipore which is Annexure ‘D’ in Civil Rule No. 5914(W) of 1978.

70. Mr. Chatterji frankly conceded on behalf of the respondents that the Sub-divisional Controller neither has jurisdiction nor the authority to issue such orders. Accordingly, the orders of the Sub-divisional Controller, Food & Supplies directing the petitioners to dispose of their stocks within a particular date must be struck down.

71. In the result, these Rules are discharged as well the points raised by the petitioners fail and made absolute in part to that extent only as indicated hereinabove. There will be no order as to costs.

Let the operation of the order remain stayed for a period of six weeks from date as prayed for by Mr. S.C Bose, learned Advocate for the petitioner.

Rules discharged and made absolute in part.