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TMI Blog1985 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... State is faced with a famine or even acute shortage of foodstuffs, it is not unreasonable for the Government to acquire foodstuffs from the surplus areas and distribute the same in areas where they are most needed. The source of power to issue an order under cl.. (d) of sub-s. (2) of s. 3 of the Act being relatable to the general powers of the Central Government under sub-s. (1) of s. 3, there is no reason for us to give a restricted meaning to the word 'regulating' in cl. (d) of sub-s. (2) of s. 3 of the Act so as not to take in prohibiting'. Appeal dismissed. - Civil Appeal No. 11417 of 1983 - - - Dated:- 27-2-1985 - SEN, A.P., VARADARAJAN, A. AND ERADI, V. BALAKRISHNA, JJ For the Appellant: K. Ram Kumar For the Respondent : A. V. Rangam JUDGMENT: SEN, J. This appeal by special leave directed against the judgment and order of the Madras High Court dated September 14, 1983 raises a question of some complexity. The question is as to whether cl. 3 (IA) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982 issued by the State Government under s 3 of the Essential Commodities Act, 1955 read with the Government of India, Ministry of Agriculture (Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the latter half of 1980 and the beginning of 1981 revealed that the stock of paddy and rice with the Government was not adequate to meet the requirements under the public distribution system. The State Government in the Food Cooperation Department accordingly, decided to enforce the levy on traders by G. O. Ms. No. 33 dated January 1, 1981 and to collect 40% levy on the purchases of paddy and rice by dealers even though it had the power to impose levy upto 50% at prices fixed by it from time to time. Thereafter, the Government in the Food Cooperation Department by G. O. MS. No. 765 dated October 1, 1981 increased the levy from 40% to 50% from kuruvai season 1981. There was a failure of monsoon in the State in the years 1981-82 and the off take of rice in the fair price shops had increased from 34,000 tonnes in April to 85,000 tonnes in December 1982. Due to failure of south-west monsoon in the year 1982 and consequent poor rainfall, the storage level in the Mettur reservoir fell. As a result of this there was a steep fall in kuruvai cultivation of paddy. In Thanjavur district alone, the acreage of paddy cultivation was reduced from 4. 5 lakhs acres to 2.97 lakhs acres. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded cl. (IA) of cl. 3 is follows: 1035 "No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or other wise carrying of paddy outside the Thanjavur District, Chidambaram and Kattumannarkoil Taluks in South Arcot District and Musiri, Kulithalai, Lalgudi and Tiruchirapalli Taluks in Tiruchirapalli District." These various orders were issued by the state Government in exercise of the powers conferred by s. 3 of the Act read with the Government of India, Ministry of Agriculture (Department of Food) Order, G. S. R. 800 dated June 9, 1978 which is set out below: C "MINISTRY OF AGRICULTURAL AND IRRIGATION (DEPARTMENT OF FOOD) ORDER New Delhi, the 9th June, 1978. G. S. R. 800- In exercise of the powers conferred by s. 5 of the Essential Commodities Act, 1955 (10 of 1955), and in supersession of the Order of the Government of India in the late Ministry of Agriculture (Department of Food) No. G. S. R. 316 (E) dated the 20th June, 1972, the Central Government hereby directs that the powers conferred on it by sub-s. (1) of s. 3 of the said Act to make orders to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions. Shri P. Govindan Nair, learned counsel appearing for the appellant argued the case with much learning and resource. Learned counsel with his usual fairness did not advance some of the contentions raised before the High Court as they were apparently misconceived. He has confined his submissions to only two grounds, namely: (l)Cl. 3 (IA) of the impugned Order issued by the State Government under s. 3 of the Act read with G. S. R. 800 dated June 9, 1978 issued by the Central Government under s. 5 of the Act with the prior concurrence of the Government of India placing a ban on the transport, movement or otherwise carrying of paddy from out of Thanjavur district, the two taluks of South Arcot district and the four taluks of Thiruchirapalli district, was ultra vires the State Government being in excess of the delegated powers. It is urged that the delegation of a specific power under cl. (d) of subs. (2) of s. 3 of the Act by the aforesaid notification issued by the Central Government under s. 5 of the Act to regulate the storage, transport, distribution, disposal etc. Of an essential commodity, in relaston to foodstuffs, does not carry with it the general power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder may provide- (a) * * * * (b) * * * * (c) * * * * (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity." S. S of the Act provides: "5. Delegation of powers-The Central Government may, by notified order, direct that (the power to make orders or issue notifications under s. 3) shall in relation to such matters, and subject to such conditions, if any, as may be specified in the direction, be exercisable also by- (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government. as may be specified in the direction." The infirmity in the argument lies in the erroneous assumption A that the source of power on authority to promulgate the impugned Order was derived by the State Government under cl.(d) of sub-s (2) of s. 3 of the Act by virtue of the delegation of powers by the Central Governmnent by the notification No G. S. R. 800 dated June 9, 1978 under s 5 of the Act. The source of power to promulgate an order of this description is derived from sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations or transport of any foodstuffs, the State Government shall also obtain the prior concurrence of the Central Government. It is manifest on a plain reading that the aforesaid notification No. G. S. R. 800 dated June 9, 1978 was strictly in conformity with the requirements of s. 5 of the Act. Learned counsel for the appellant however strenuously con tends that the delegation of powers by the Central Government under s. 5 of the Act must necessarily be in relation to 'such matters' and subject to 'such conditions' as may be specified in the notification. The whole attempt on the part of the learned counsel is to confine the scope and ambit of the impugned order to cl. (d) of sub-s ( .) of g. 3 of the Act which uses the word 'regulating' and take it out of the purview of sub-s. (1) of s. 3 which uses the words 'regulating or prohibiting'. That is not a proper way of construction of sub-ss (l) and (2) of s. 3 of the Act in their normal setting. The restricted construction of s. 3 contended for by learned counsel for the appellant would render the scheme of the Act wholly unworkable. As already indicated, the source of power to make an order of this description is sub-s. (l) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "In the opinion of their Lordships, the function of sub s. (2) is merely an illustrative one; the rule-making power is conferred by sub-s. (1), and "the rules" which are referred to in the opening sentence of sub-s. (2) are the rules which are authorized by, and made under, sub-s. (1); the provisions of sub-s (2) are not restrictive of sub-s. (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-s (1)." This accords with our view of the purport and effect of sub-ss. (1) and (2) of s. 3 of the Act. In Atulya Kumar v. Director of Procurement Supply(AIR [1953] Cal. 548), the challenge was to the validity of West Bengal Foodgrains (Intensive Procurement Order, 1952 issued under s. 3 (1) of the Essential Supplies (Temporary Powers) Act, 1946 by virtue of delegation of powers by the Central Government under s. 5 of the Act which was almost in identical terms with s. 5 of the Act. Sinha, J. (as he then was) held that the powers to promulgate the levy order was derived from sub-s. (1) of s 3 of the Act; and that the power was general in terms and authorized inter alia the promulgation of any order providing for regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general power to issue the impugned order flows from the provisions of sub-h. (1) of s. 3 which stands delegated to the State Government by virtue of the notification issued under s. S of the Act. Upon that view, the question as to the construction of the word 'regulating' occurring in cl. (d) of sub-s. (2) of 8.3 of the Act does not really arise. However, since the question has been raised at the Bar we think it proper to deal with it. As a matter of construction, Shri P- Govindan Nair, learned counsel for the appellant contends that the words 'regulating' and prohibiting' connote two distinct and separate attributes of power which are mutually exclusive and therefore the word 'regulating' used in cl. (d) cannot be given the same meaning as 'prohibiting'. He urges that is A sound rule of construction to give the same meaning to the same word occurring in different parts of an Act of Parliament. For the purpose of ascertaining the true meaning of the word 'regulating' in the context of cl. (d) of sub-s. (2) of s. 3, he has referred to us the different clauses of that sub-section. A perusal of the various clauses (a) to (j) indicates that while cls. (a), (d) and (g) speak of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellant however contends that the word 'regulation' should not be confused with the expression 'reasonable restrictions' occurring in Art. 19(2) to (6) of the Constitution and therefore the view t-taken in Narendra Kumar's case is not applicable. According to him, the word 'regulation' in cl. (d) of sub-. (2) of s. 3 of the Act does not take in 'prohibition'. He seeks to draw a distinction between prohibition or prevention o-certain activities and their regulation or governance. It is said that a power to regulate or govern would imply continued existence of that which is to be regulated or governed; and to be inconsistent with absolute prohibition. He therefore submits that cl. 3 (IA) of the Order was ultra vires because the State Government had only power under cl. (d) of sub-s, (2) of s. 3 of the Act to regulate production, supply and distribution of, and trade and commerce in, essential commodities like foodstuffs by grant of permits, licenses or otherwise, in contradistinction to the A power of the Central Government under sub-s. (1) of s. 3 to regulate or prohibit such production, supply and distribution of, and trade and commerce in, essential commodities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; to rule; to conduct; to fix or establish; to restrain; to restrict." See also: Webster's Third New International Dictionary, vol. II, p. 1913 and Shorter Oxford Dictionary, Vol. II, 3rd edn., p. 1784. It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily the word 'regulate' is not synonymous with the word 'prohibit'. This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. 'the power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression It would therefore appear that the word 'regulation' cannot have any inflexible meaning as to exclude 'prohibition'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of s. 3 of the Act or by the State Government under s 3 read with s. 5 have introduced a system of checks and balances to achieve the object of the legislation i.e. to ensure equitable distribution and availability of essential commodities at fair prices. Special public interest in an industry e.g. that it is engaged in the production of a commodity, vitally essential to the community, may justify the regulation of its production, supply and distribution and its trade and commerce, provided such regulation is not arbitrary and has a rational nexus with the object sought to be achieved the power to regulate or prohibit the production, supply and distribution of, and trade and commerce in, essential commodities may be exercised in innumerable ways. One of the ways in which such regulation or control over the production, supply and distribution of, and trade and commerce in, an essential commodity like foodstuffs may be exercised by placing a ban on inter Slate or inter-State movement of foodstuffs to ensure that the excess stock of foodstuffs held by a wholesale dealer, commission agent or retailer is not transported to places outside the State or from one district to another with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 554) and Bishamber Dayal Chandra Mohan Ors. v. State of U.P. Ors.( [1982] I SCR 137) the Court has held that a restriction placed on movement of wheat from one State to another and/on movement of wheat from one district to another under cl. (d) of sub-s. (2) of s. 3 of the Act, to be regulatory in character. Surely when a part of the country is verging on conditions of acute shortage or even famine, it is expected of the government to procure foodstuffs from surplus areas and transport the same for distribution in deficit areas. [D the State of Tamil Nadu like some other States, the two things most essential for the sustenance of human life are rice and paddy. It is amply borne out from the material on record that due to the failure of the southwest and north- east monsoons in successive years, and the consequent poor rainfall, there was a steep fall in production of paddy. In the circumstances, the State Government had no other alternative not only to re-impose compulsory levy on the producers of paddy to the extent of 50%%, but also to introduce a scheme for a monopoly purchase of paddy by the Government with a view to build up its buffer stock for distribution throu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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