BHAVANSINH RANJITSINH PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By means of filing these petitions under Art. 226 of the Constitution, the petitioners have prayed to declare that Sec. 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is unconstitutional, ultra vires and beyond the legislative power of the Parliament under Entry 3 of list III of VIIth Schedule to the Constitution of India. The petitioners have further prayed to declare that the Central Government has no jurisdiction, competence, authority or power to provide for and prescribe the parameters governing the quality of essential commodity while exercising powers under the provisions of the Essential Commodities Act, 1955. The petitioners have also prayed to declare that Motor Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 is beyond the scope and purview of Sec. 3 of the Essential Commodities Act, 1955 and hence, beyond the power of the Central Government. Lastly, the petitioners have prayed to quash and set aside the order dated May 29, 2000 passed by the District Magistrate, Surendrangar detaining each petitioner under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ('the Act' for short).

(2.) On April 28, 2000, the police authorities of Rajkot District intercepted four tankers containing liquid solvent. The solvent was brought for being delivered to retail outlets for mixing with petrol. The police authorities carried out a series of raids at each retail outlet selling petroleum products. The petitioner in SCA No. 5373 of 2000 is the Manager of the firm known as Madhur Raiji Petroleum which is authorised to sell petroleum products i.e. motor spirit, high speed diesel etc. The petitioners in SCA No. 5374 of 2000 is the Manager of Mandavraiji Filling Station which is also authorised to deal in petroleum products. The retail outlets wherein the petitioners are working as Managers were also checked by the authorities of Civil Supplies Department on April 28, 2000. Checking was made by the authorities in exercise of powers conferred by the Essential Commodities Act, 1955 read with provisions of Motor Diesel (Regulation of Supply and Distribution and Prevention of Mal Practices) Order, 1998 ('the Order' for short). After the search of retail outlet, the petroleum product was seized which action is challenged by the respective petitioner in SCA No. 4406 of 2000 and SCA No. 4476 of 2000. At the time of search of retail outlets, samples of petroleum were drawn by the authorities and were set to the approved Laboratory for analysis. On the basis of the report of analysis, the District Magistrate, Surendranagar was satisfied that petitioners were selling adulterated motor spirit and it was necessary to prevent the petitioners from acting in any manner prejudicial the maintenance of supplies of petroleum which is essential to the commodity. Therefore, he has made order directing the petitioners to be detained under the Act. According to the petitioners, maintenance of quality and standard of essential commodity is not within the purview of the Essential Commodities Act as the said Act is intended to provide for control of maintenance, supply and distribution of and trade and commerce in essential commodities. The petitioners have claimed that Essential Commodities Act does not deal with the quality of an essential commodity and as the legislature has enacted laws for the purpose of governing quality of essential commodities, no offence under the Essential Commodities Act can be said to have taken place merely on the basis of discrepancy in the quality of petroleum product. The case of the petitioners is that as the Essential Commodities Act does not deal with the question of quality of essential commodity, the Central Government has no jurisdiction, authority or power to lay down parameters of petroleum products by way of making Order of 1998 and the Order of 1998 being beyond the rule making power of the Central Government, should be declared to be ultra vires what is asserted is that Sec. 3 of the Act is beyond the legislative competence of the Parliament. Elaborating the said stand, it is maintained that Entry 3 in List III provides for legislative power of Parliament to enact laws for preventive detention and law can be made providing for preventive detention, but the question of quality of essential commodity is not the question for which the Parliament is empowered to enact law . providing for preventive detention and, therefore, Sec. 3 is ultra vires. According to the petitioners, Sec. 3 of the Act does not empower the competent authority to exercise power of detention on alleged discrepancy in the quality of essential commodity and, therefore, if Sec. 3 of the Act is read or interpreted to mean that the competent authority can exercise power of detention in case of discrepancy in quality of essential commodity, Sec. 3 of the Act should be treated as beyond legislative power of the Parliament. Under the circumstances, the petitioners have filed the present petitions and claimed reliefs to which reference is made earlier.

(3.) Mr. N.D. Nanavati, learned senior counsel for the petitioners pleaded that so far as the subject of preventive detention is concerned, the law making power with respect to preventive detention is provided by the Constitution of India in the Concurrent List, Entry 3 in List III with respect to which the Parliament and the State Legislature can enact law providing for preventive detention and on true interpretation of Entry 3, it is evident that neither the Parliament nor the State Legislature is conferred with law making power to provide for preventive detention when any essential commodity is found sub-standard. It was emphasized that the Preamble of the Act indicates that the Act is enacted to provide for detention for two purposes viz. (i) prevention of black-marketing of essential commodities and (ii) maintenance of supply of essential commodities and as the Parliament has no legislative power to provide for preventive detention when any essential commodity is adulterated, Sec. 3 should be held to be ultra vires. It was maintained that the Essential Commodities Act, 1955 does not deal with the equality of an essential commodity and as the Central Government has no jurisdiction, authority or power to lay down parameters by way of making order in purported exercise of power under Sec. 3 of the Essential Commodities Act, the Order of 1998 being demonstrably beyond the rule making power of the Central Government, should be held to be invalid. What was urged was that as the material before the detaining authority does not show that the petitioners were committing or instigating to commit any offence punishable under the Essential Commodities Act, 1955 or under any other law for the time being in force relating to control of production, supply and distribution of or trade and commerce in any commodity essential to the commodity, the order of detention could not have been passed. In support of his submissions, learned counsel placed reliance on the decision rendered in the case of Kishore Amratlal Patel vs. Rajiv Takru, 1987 (1) GLH 543.