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1999 DIGILAW 230 (CAL)

Veejoy International v. State

1999-04-28

SAMARENDRA NATH BHATTACHARJEE, SATYABRATA SINHA

body1999
JUDGMENT : - S.B. Sinha, J.: All these four appeals raise a question as regards vires of the clauses 9 and 10 of the West Bengal Rice and Paddy (Control) Order, 1997 (hereinafter called and referred to as the said Order). The representative matrix of facts, however, shall be noticed from M.A.T. No. 2689 of 1998. 2. The petitioner is a partnership firm. It possesses importer and exporter quota and the certificates issued by the Agricultural and Processed Food Products Export Development Authority. The petitioner, inter alia, carries on business in export of non-basmati rice. Allegedly, while exporting such rice, it met with obstructions where after it filed a writ application which was marked as W.P. 8523 (W) of 1998 praying, inter alia therein for the following reliefs :- "(a) An order or orders and/or direction or directions declaring paragraphs 9 and 10 of the West Bengal Rice and Paddy (Control) Order, 1997 as ultra vires and void; (b) A Writ and/or order or orders and/or directions in the nature of Mandamus directing the respondents and each of them to forbear from giving effect to or further effect to and or recall, set aside, rescind and cancel the paragraphs 9 and 10 of the West Bengal Rice and Paddy (Control) Order, 1997." 3. The said application has been dismissed by a learned Single Judge of this court upholding the vires of the aforementioned provisions of the said order. 4. So far as the other three appeals are concerned, a learned Single Judge of this Court disposed of the Writ applications filed by the appellants on the ground that they can file appropriate applications for release of their vehicles and goods before the Criminal Courts where their cases are pending. No adjudication has been made in the said judgments as regards vires of the clauses 9 and 10 of the said Order. 5. Mr. Sakti Nath Mukherjee, the learned Counsel appearing on behalf of the appellant, has, inter alia, submitted that the constitutional scheme as regards the distribution of the legislative field as evidenced by Article 246 of the Constitution of India would clearly show that the matter relating to the control of business, distribution and storage etc. 5. Mr. Sakti Nath Mukherjee, the learned Counsel appearing on behalf of the appellant, has, inter alia, submitted that the constitutional scheme as regards the distribution of the legislative field as evidenced by Article 246 of the Constitution of India would clearly show that the matter relating to the control of business, distribution and storage etc. of the essential commodities in terms of an order made under the Essential Commodities Act, 1955 would be subject to the directions issued by the Central Government in exercise of its export policy framed under the Foreign Trade (Development and Regulations) Act, 1992 (hereinafter referred to as "the 1992 Act")' The learned Counsel submits that 1992 Act has been framed in terms of Entry No.41 of List I of the Seventh Schedule of the Constitution of India, whereas Essential Commodities Act was enacted in terms of Item No. 33 of List III of the Constitution of India and thus in terms of Article 246 of the Constitution of India, the later Act must give way to the former. According to the learned Counsel, the State Government while framing the said order, acted as delegatee of the Central Government and thus such power should have been exercised within the four corners thereof. Mr. Mukherjee would urge that keeping in view the limitation of the delegating notification being G.S.R. No. 800 dated 8th June, 1978, the State of West Bengal had exceeded its jurisdiction in making the said order. The learned Counsel submits that the export policy framed by the Central Government must be viewed in the context of the law as was existing prior to issuance of the public notice No. 12/97-02 dated 28th May, 1997 as it would appear therefrom that the Central Government has adopted a liberalised policy inasmuch as by reason of the said notification. Permission had been granted to export non-Basmati rice subject to registration of contract with the Agricultural and Processed Food Products Export Development Authority, New Delhi. All restrictions, Mr. Mukherjee would urge, over and above the restriction put under the said notification dated 28th May, 1997 whether by way of executive instruction or by way of delegated legislation must be held to be unconstitutional, arbitrary and in any event repugnant to the Parliamentary Act enacted under List I of the Seventh Schedule of the Constitution of India. Mukherjee would urge, over and above the restriction put under the said notification dated 28th May, 1997 whether by way of executive instruction or by way of delegated legislation must be held to be unconstitutional, arbitrary and in any event repugnant to the Parliamentary Act enacted under List I of the Seventh Schedule of the Constitution of India. Reliance in this connection has been placed on a decision of one of us reported in 1995 W.B.L.R. 182. 6. The learned Counsel submitted that in such a case the rule of pith and substance should be followed. In support of the said contention reliance has been placed on Prafulla Kumar Mukherjee & Ors. vs. Bank of Commerce Ltd., Khulna, reported in 1947 P.C. 60 and Kishori Shetty vs. The King, reported in AIR 1950 F.C. 69. 7. It was further urged that even under the doctrine of occupied field the said order does not survive. Reliance in this connection has been placed on AG. of Saskatchewan vs. AG. of Canada, reported in 1949 P.C. 190, Attorney General of Alberta vs. Attorney General of Canada and Ors., reported in AIR 1943 P.C. 76 and State of Kerala vs. M.T. Devassia, reported in AIR 1977 SC 331 . 8. In any event, the learned Counsel contends even under the delegated power, the impugned order could not have been passed and for the said proposition reliance has been placed on Ch. Tika Ramji & Ors. vs. The State of Uttar Pradesh & Ors., reported in AIR 1956 SC 676 . 9. Mr. S.K. Ghosh the learned Counsel was also heard in the matter at his request. It was submitted that the impugned order is beyond the scope of the delegating notification as no power of prohibition has been granted. The learned Counsel placed reliance on Suraj Bhan Pande vs. State of U.P. & Ors., reported in 1969 All 560, District Collector. Chittoor vs. The Chittoor District Groundnut Traders Association, Chittoor, reported in AIR 1989 SC 989 and Bharat Barrel & Drum Manufacturing Co. Pvt. Ltd. vs. Union of India, reported in ILR 1973 (2) Del 779. 10. Mr. Debasis Kar Gupta, learned Counsel appearing on behalf of the State of West Bengal, on the other hand, submitted that section 6 of 1955 Act and section 31 of the Agricultural and Processed Food Products Export Development Act, 1985 contain non-obstante clauses. Pvt. Ltd. vs. Union of India, reported in ILR 1973 (2) Del 779. 10. Mr. Debasis Kar Gupta, learned Counsel appearing on behalf of the State of West Bengal, on the other hand, submitted that section 6 of 1955 Act and section 31 of the Agricultural and Processed Food Products Export Development Act, 1985 contain non-obstante clauses. The learned Counsel contends that as the legislative field curved out under different lists may overlap with each other, the doctrine of pith arid substance should be taken recourse to. It was submitted that it is not a case where the State has made an enactment in excess of its legislative power conferred upon it under List-II of the Seventh Schedule of the Constitution of India, but in the instant case the State has exercised its power as delegatee of the Central Government; which is permissible in view of section 5 of the 1955 Act. The learned Counsel contends that both 1955 Act and 1992 Act having been enacted by the Parliament itself, the provisions thereof must be harmoniously construed, and an attempt should be made to sustain the provisions of both the Acts. Reliance in this connection has been placed on AIR 1960 SC 475 and Hoechst Pharmaceuticals vs. State of Bihar, reported in AIR 1983 SC 1019 , Harishankar Bagla and Anr. vs. The State of Madhya Pradesh, reported in AIR 1954 SC 465 , Federation of Hotel & Restaurant vs. Union of India & Ors., reported in AIR 1990 SC 1637 , State of U.P. vs. Ministerial Karmachari Sangh, reported in AIR 1998 SC 303, Gram Panchayat of Village Jamalpur vs. Malwinder Singh, reported in AIR 1985 SC 1394 and Vijay Kumar Sharma & Ors. vs. State of Karnataka and Ors., reported in AIR 1990 SC 2072 . 11. Mr. Kar Gupta would urge that it is not correct to contend that in terms of the provisions of the 1955 Act, no order can be made prohibiting export of an essential commodity. The State, according to Mr. Kar Gupta, has been conferred right to impose restrictions on export of an essential commodity and such restrictions are put in public interest. Strong reliance in this connection has been placed on Darshan Singh Balbant Singh & Anr. vs. State of Punjab, reported in AIR 1953 SC 83 . 12. The State, according to Mr. Kar Gupta, has been conferred right to impose restrictions on export of an essential commodity and such restrictions are put in public interest. Strong reliance in this connection has been placed on Darshan Singh Balbant Singh & Anr. vs. State of Punjab, reported in AIR 1953 SC 83 . 12. Before adverting to the question raised in these appeals we consider it expedient to take note of certain provisions of the Constitution of India as also the relevant statutes. Articles 245 and 246 of the Constitution of India read thus : "245 : Extent of laws made by Parliament and by the Legislature of States.- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 246 : Subject matter of laws made by Parliament and by the Legislatures of States.-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1) the Legislature of any State also have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (In this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List"). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List." Entry 41 of List-I and Entry 33 of List III of the Seventh Schedule are as under : "41. Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers. 33. Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers. 33. Trade and commerce in, and the production, supply and distribution of (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and seed; and (e) raw jute. 13. Admittedly, the Essential Commodities Act, 1955 was enacted by the Parliament in exercise of its power conferred in terms of Entry 33 of List III of Seventh Schedule. In terms of the said Act, the power to control in relation to the interest of general public for the control of production, supply and distribution, and trade and commerce and certain commodities vest in the Central Government. Section 3 of the said Act enumerates the power of the Central Government to make an order in relation to the essential commodities with a view to achieve the purposes stated therein. Section 5 of the said Act empowers the Central Government to delegate its power of control to amongst other State Governments. By a notification bearing No. GSR 800 dated 8th June, 1978, the Central Government delegated its power to make orders under section 3 of the said Act to the authorities naming therein with certain conditions. Section 5 of the said Act empowers the Central Government to delegate its power of control to amongst other State Governments. By a notification bearing No. GSR 800 dated 8th June, 1978, the Central Government delegated its power to make orders under section 3 of the said Act to the authorities naming therein with certain conditions. The said notification is as follows : "In exercise of the power conferred by section 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. GSR 316(E) dated June 20, 1972, the Central Government hereby directs that the powers conferred on it by subsection (1) of section 3 of the said Act to make orders to provide for the matters specified in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (ii) and (j) of sub-section (2) thereof shall, in relation to foodstuffs be exercisable also by a State Government subject to the conditions(1) that such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in this behalf; (2) That before making an order relating to any matter specified in the said clauses (a), (c) or(f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuffs, under the said clause (d) the State Government shall also obtain the prior concurrence of the Central Government and (3) that in making an order relating to any of the matters specified in the said clause (j) the State Government shall authorise only an officer of Government." 14. The State Government in exercise of its delegated power made the West Bengal Rice and Paddy Restriction on Movement) Order, 1981. Clause 4 of the said order imposes a restriction on every person from transporting or attempting to transport or abetting in transportation of rice and paddy to any place in the International Border area or any other place outside that area within the State of West Bengal except under and in accordance with the permission issued by the Government, Controller or any other officer authorised in that behalf. Certain exceptions to such absolute restriction has also been provided. 15. Certain exceptions to such absolute restriction has also been provided. 15. Clause 5 of the said order authorises officers to enter into any premises and make search and seizure of essential commodities or vehicle etc. Vires of the said orders appears to have been considered by a Division Bench of this Court. 16. Thereafter an order was made by the State Government in exercise of its aforementioned delegating notification bearing No. GSR 800 dated 8th June, 1978, known as West Bengal Rice and Paddy (Control) Order, 1997, relevant clauses being clauses 9 and 10 whereof read thus :- "(9)(1)-N0 person shall store or attempt to store or transport or attempt to transport any quantity of rice or paddy procured for export without a valid permit in Form 'D' granted by the Director or by the Controller, if so authorised by the Government. (2) In the case of transhipment of stocks from one vehicle to another in exigencies, by an exporter without a valid permit, such transhipment shall be made only with the prior permission of the nearest Controller, stating in detail the persons for such transhipment. 10-No. person shall export or attempt to export any rice or paddy produced or grown in West Bengal without a written authority granted by the Government or any other officer duly authorised by the Government in this behalf, and if the Government or such authorised officer is satisfied that such export of rice will not adversely affect the price and availability of rice in the local market, the Government or such authorised officer may grant authority for export of specified quantity and variety of rice as may be determined by the Government or such authorised officer." 17. The said order was issued upon obtaining a prior concurrence of the Central Government. 18. By reason of a notification dated 18.9.98 an amendment in the 1997 Order was effected, the relevant provisions whereof are as follows :- "5. Paragraph 9(1) shall be substituted by the words as under: No person shall store or attempt to store any quantity of rice or paddy procured in the State of West Bengal or from outside the State of West Bengal for export without valid permit in Form 'c' granted by the Director or by the Controller, if so, authorised by the Government." "6. Paragraph 9(2) shall be substituted as under : In the case of transhipment of stocks from one vehicle to another in exigencies, by an exporter with a valid export permit/or transit permit granted by the State Government as stated in paragraph 10 hereafter,' such transhipment shall be made only with the prior intimation to the nearest Controller or the Officer-in-Charge of the nearest police station, stating in details the reasons for such transhipment." "7. Paragraph 10 in the Control Order 1997 shall be numbered as (1) and the words, "in form 'H'" shall be inserted between the words "the Government or such authorised officer may grant authority" and "for export of specified quantity". Add one sub-paragraph numbering (2) as under ;- (2) Regulation of export of rice procured from outside the State of West Bengal : Any person intending to export rice or paddy procured from outside the State of West Bengal shall require a transit permit to be granted by the State Government, or any officer authorised by the State Government, in Form 'I' on furnish all necessary export documents, purchase documents and other allied details. Form-I which has been referred to in clause 10 of the said order provides for the form of a transit permit which is in the following terms : "Shri/Messrs .................. ........ ..... ................................................. of. ........................ .... ........ .......... ....... ....... .... ..... ......... .......... ............... is hereby permitted to export ......................................... M.T. of non-Basmati Superfine Rice to Bangladesh/Bhutan/Nepal against the Letter of Credit No/Bank Guarantee No./C.A.D. No. ............................ dated .............. through .................................................................... Checkpost in terms of Government of India Import Export Policy, 1992-97 (duly extended) on purchasing the stocks from .......................................................... Conditions 1. This permit shall remain valid upto ....................................... 2. The permit is not transferable and should be surrendered to the issuing authority within three days on expiry of its validity. 3. The permit holder will inform the Director, District Distribution, Procurement and Supply, District Magistrate and Superintendent of Police, Enforcement Branch of the concerned district about the quantity and quality of rice to be exported with definite source of purchases/ loading station as well as the district where the export station/point lies seven days before the movement of stock. 4. The permit holder is allowed to move the stock partly or wholly within the valid period exclusively through the checkpost mentioned in the permit. 5. 4. The permit holder is allowed to move the stock partly or wholly within the valid period exclusively through the checkpost mentioned in the permit. 5. The permit holder will submit the xerox copy of the purchase vouchers from loading station and clearance of Land Custom along with original permit within three days from the date of completion of the export. 6. The validity of the permit will not be extended in any circumstances. The permit holder shall purchase rice only from the place indicated in this application and not store any quantity of rice in West Bengal without valid permission under paragraph 9(1) of the West Bengal Rice and Paddy (Control) Order, 1997." 19. The Parliament also enacted the aforementioned 1992 Act to provide for the development and regulations of foreign trade for facilitating import in India and augmenting export from India and for the matters connected therewith and/or incidental thereto. 20. Section 2(e) of the said Act defines import and export to mean respectively bringing into, or taking out of India any goods by land, sea or air. 21. Section 3 of the said Act empowers the Central Government to make provisions for the development and regulation of foreign trade by facilitating import and increasing exports. 22. Section 5 of the said Act authorises the Central Government to formulate and announce, by notification in the Official Gazette, the export and import policy as also to amend the same in like manner. 23. Section 6 of the said Act empowers the Central Government to appoint any person to be the Director-General of Foreign Trade for the purposes thereof whose duty inter alia, is to advise the Central Government in the formulation of the export and import policy and Director-General shall be responsible for carrying out the same. In terms of sub-section (3) of section 6 the Central Government may by order published in the Official Gazette, direct that any power exercisable by it under this Act, may also be exercised, in such cases and subject to such conditions, by the Director-General or such other officer subordinate to the Director General, as may be specified in the order. 24. The principal objectives of the said policy have been stated in clauses 2.1, 2.2, 4.16 and 4.18 thereof read thus :- "2.1. 24. The principal objectives of the said policy have been stated in clauses 2.1, 2.2, 4.16 and 4.18 thereof read thus :- "2.1. (i) To accelerate the country's transition to a globally oriented vibrant economy with a view to derive maximum benefits from expanding global market opportunities; (ii) To stimulate sustained economic growth by providing access to essential raw materials, intermediates, components, consumables and capital goods required for augmenting production; (iii) To enhance the technological strength and efficiency of Indian agriculture, industry and services, thereby improving their competitive strength while generating new employment opportunities, and encourage the attainment of internationally accepted standards of quality. (i) To provide consumers with gross quality products at reasonable prices. 2.2. The objectives will be achieved through the coordinated efforts of all the departments of the Government in general and the Ministry of Commerce and the Directorate General of Foreign Trade and its network of Regional Offices in particular, with a shared vision and commitment and in the best spirit of facilitation, in the interest of export promotion. 4.16. The Director General of Foreign Trade may issue, from time to time, I such instructions or frame such schemes as may be required to promote trade and strengthen economic ties with neigbouring countries. 4.18. Transit of goods through India from or to countries adjacent to India shall be regulated in accordance with the treaty between India and these countries." 25. Chapter 3 of the said policy contains interpretation clauses. Chapter 4 of the said policy deals with general provisions regarding exports and imports. Paragraph 4.1 states that exports and imports shall be free except to the extent they are regulated by the provisions of the said policy or any other law for the time being in force. 26. Paragraph 4.2 empowers the Central Government to regulate the import or export of goods by means of Negative List of Imports or a Negative List of Exports, as the case may be, and such List if published within the purview of prohibited goods as stated in paragraph 4.4. 27. A detailed procedure had been laid down as regard the manner in which a licence is to be granted, terms and conditions of a licence or providing for importer or exporter code number, Registration-cum-Membership Certificate and the procedures relating thereto. It also contains a directive to comply with the provisions as regard interpreation of policy and exemption from policy/procedure. 27. A detailed procedure had been laid down as regard the manner in which a licence is to be granted, terms and conditions of a licence or providing for importer or exporter code number, Registration-cum-Membership Certificate and the procedures relating thereto. It also contains a directive to comply with the provisions as regard interpreation of policy and exemption from policy/procedure. The said policy also provides for penalty. 28. Paragraphs 4.20 and 4.21 read thus : "4.20. If a licence holder violates any condition of the licence or fails to fulfil the export obligation, he shall be liable to action in accordance with the Act, the Rules and Orders made there under, the policy and any other law for the time being in force. 4.21. Consignments of items allowed for exports shall not be withheld/delayed for any reason by any agency of the Central/State Government. In case of any doubt, the authorities concerned may ask for an undertaking from the exporter." 29. The Scheme of the 1992 Act and the Export and Import Policy made under section 5 thereof clearly show that the same are complete code in themselves. 30. Pursuant to or in furtherence of the said power the Central Government issued a notification containing its export and import policy for the years, namely, 1997 to 2002 providing allowance of export of non Basmati rice subject to registration of contracts with the Agricultural and Processed Food Export Development Authority, New Delhi. The said authority admittedly had been constituted in terms of the provisions of Agricultural and Processed Food Export Development Authority Act, 1985, its object being to undertake development and promotion of export of its scheduled products. However, rice is not scheduled product within the meaning of the provisions of the said Act. 31. Before proceeding to deal with the matter any further we may note that the vires of the 1981 Order was the subject matter of F.M.A.T. 916 of 1996 (Alok Kumar Sen & Ors. vs. State of West Bengal & Ors.) and by a judgment and order dated 4th October, 1996, a Division Bench of this court, inter alia, held :- "The power to allow or not to allow exports was conferred under the Constitution of India on the Central Govt. vs. State of West Bengal & Ors.) and by a judgment and order dated 4th October, 1996, a Division Bench of this court, inter alia, held :- "The power to allow or not to allow exports was conferred under the Constitution of India on the Central Govt. and not upon the State Government and accordingly, when the power has been conferred on the Central Government made it a policy under the law to allow such free export of such non-Basmati rice from part of India, the State Government by any administrative order cannot put any restriction and impose any prohibition in its order. As this is a pure question of law and as under the law the State Government has no jurisdiction to impose conditions and restrictions on the export of non-Basmati rice, the said administrative decision of the Principal Secretary dated February 9, 1995, is set a side only to the extent stipulating that 'no rice procured from within West Bengal will be permitted to be exported since West Bengal continues to a deficit State.' " 32. The learned Judges while appreciating their anxieties of the State Government that no rice procured from the State should be allowed to be exported out of the State in public interest, held that constitutional limitations and restrictions are required to be observed inasmuch as under the Constitution the State Government had no power to take such a decision even though it contained a very noble object to protect the people, but the said order in view of the constitutional limitation would be unconstitutional. The aforementioned observations suffer from a mistake inasmuch as the Division Bench failed to notice that the State of West Bengal had also made the said order under a Parliamentary Act and that the Parliament was entitled to delegate its power not only in favour of a State Government but also in favour of any other authority. Such an order having been made by the State Government in exercise of its delegating notification issued by the Central Government, the State Government muse also be held to have acted in terms of a Parliamentary Act. In Harishankar Bagla & Anr. vs. The State of Madhya Pradesh, reported in AIR 1954 SC 465 , •the Supreme Court has upheld the powers conferred upon the Central Government to sub-delegate its delegated powers. In Harishankar Bagla & Anr. vs. The State of Madhya Pradesh, reported in AIR 1954 SC 465 , •the Supreme Court has upheld the powers conferred upon the Central Government to sub-delegate its delegated powers. In that view of the matter, the question of the said order being ultra vires the legislative power of the State Government does not arise. 33. Mr. Mukherjee, learned Counsel appearing on behalf of the appellants, in his usual fairness has also conceded to the aforementioned position. 34. The question as to how the entries in 3 Lists enumerated in the Seventh Schedule of the Constitution of India should be construed is no longer Respondent integra. It is now well settled :-(1) The three Lists in the Seventh Schedule of the Constitution of India curve out legislative field and not power of legislation; (2) The entries in any of the Lists should be given a wide interpretation; (3) Attempt should be made to sustain different Acts framed under the different lists as far as possible, but in case the legislations framed by the Parliament are irreconcilable Article 246 of the Constitution of India shall step in; and (4) The provisions of the two Acts should be attempted to be sustained even if one overlaps with the other or one Act made under one entry incidentally trenches upon the legislative field acting the other entry. 35. In M/s. Hoechst Pharmaceuticals Ltd. & Anr. vs. State of Bihar & Ors., reported in AIR 1983 SC 1019 , a Bench of three Judges while considering the provisions of Bihar Finance Act, 1981, whereby and where under surcharges had been levied on manufacturers and producers of drugs whose gross turn over exceeded five lacs, held :- "The words notwithstanding anything contained in clauses (2) and (3), in Article 246( 1) and the words 'Subject to clauses (1) and (2) in Article 246(3) lay down the principle of Federal Supremacy viz. that in case of inevitable conflict between Union and State powers, the Union power as enumerated in List-I shall prevail over the State power as enumerated in Lists II and III and case of overlapping between Lists II and III, the former shall prevail. But the principle of Federal Supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an 'irreconcilable conflict between the Entries in the Union and State Lists. But the principle of Federal Supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an 'irreconcilable conflict between the Entries in the Union and State Lists. In Lists, the Entries should be read together without giving a narrow and restricted sense to either of them. Secondly, an attempt should be made to SCC whether the two Entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non obstinte clause in Article 246(1) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two Lists will arise if the impugned legislation, by the application of the doctrine of pith and substance appears to fall exclusively under one List, and the encroachment upon another List is only incidental.' " 36. It had been pointed out that question of repugnancy under Article 254(1) of the Constitution of India between a law made by Parliament and a law made by the State Legislature arises only in case when both the Union and State Lists relate to a subject specified in List III and occupy the same field. 37. In United Provinces vs. Atiqa Begum & Ors., reported in AIR 1941 FC 16, it has been held :- "I think however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court." 38. Reference in this connection may also be made to AIR 1990 SC 85 . Yet again in B. Viswanathiah and Company & Ors. Reference in this connection may also be made to AIR 1990 SC 85 . Yet again in B. Viswanathiah and Company & Ors. vs. State of Karnataka & Ors., reported in 1991 (3) SCC 358 , the Apex Court noticed, "In view of our conclusion above, the State Legislation would be quite valid unless it is repugnant to the provisions of a Central Legislation on the subject. A perusal of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a Silk Board for research into the scientific technological and economic aspects of the industry. It does not have anything to do with the aspect covered by Entry 33 in List III. There is, therefore, no infirmity in the legislation under consideration. 39. However, in Kerala State Electricity Board vs. Indian Aluminium Co., reported in AIR 1976 SC 1031 , it has been held :- "In view of the provisions of Article 254, the power of the Parliament to legislate in regard to matters in List III, which are dealt with by clause (2), is supreme. The Parliament has exclusive power to legislate with respect to matters in List I. The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) [leaving out clause (2)]. The power of Parliament to legislate with respect to matters including in List I is supreme notwithstanding anything contained in clause (3) [again leaving out of consideration of the provisions of clause (2)]. Now what is the meaning of the words 'notwithstanding' in clause (1) and 'subject to' in clause (3)? They mean that where an entry is in general terms in List II and part of that entry is in List I, the entry in List I takes effect notwithstanding the entry in List II. Now what is the meaning of the words 'notwithstanding' in clause (1) and 'subject to' in clause (3)? They mean that where an entry is in general terms in List II and part of that entry is in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the 'special' excludes the 'general' and the general entry in List II is subject to the special entry in List I. For instance, though house accommodation and rent control might fall within either the State List or the Concurrent List, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in cantonment from the general subject of house accommodation and rent control [see Indu Bhusan vs. Sundari Devi, 1970 (1) SCR 443 : AIR 1970 SC 228 ]. Furthermore, the word 'notwithstanding' in clause (1) also means that it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which List a particular legislation falls. For deciding under which entry a particular legislation falls the theory of pith and substance' has been evolved by the Courts of in pith and substance a legislation falls within one List or the other but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. These principles have been laid down in a number of decisions." 40. Reference in this connection also may be made to Agricultural and Processed Food Products vs. Oswal Agro Furane, reported in 1996 (4) SCC 297 . 41. Keeping in view the aforementioned proposition of law, there cannot be any doubt whatsoever that this Court has no other option but to hold that an attempt should be made to uphold both the 1955 Act as also 1992 Act. But the question is-would it be possible to do so? 42. In Darshan Singh Balwant Singh & Anr. 41. Keeping in view the aforementioned proposition of law, there cannot be any doubt whatsoever that this Court has no other option but to hold that an attempt should be made to uphold both the 1955 Act as also 1992 Act. But the question is-would it be possible to do so? 42. In Darshan Singh Balwant Singh & Anr. vs. The State of Punjab, reported in AIR 1953 SC 83 , a Constitution Bench of this court repelled a contention that restriction upon export outside India cannot be made by a delegated authority, observing that the Central Legislature was fully competent to legislate for exports and imports which are Central subjects and in making any provision relating thereto, it cannot be said that it acted in excess of its authority. The Apex Court held, "Even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of export as ancillary to production and supply of essential commodities would, in our opinion, be quite within the scope and ambit of such legislation and in pith and substance it would be an enactment dealing exclusively with these provincial matters." 43. It was further held, "Looked at from this standpoint, the other argument advanced by Mr. Achhru Ram would also be found to be without any substance. The Imports and Exports Act or the earlier order and ordinance, referred to by the learned Counsel, were legislation essentially on the subject of exports and imports. Their object was to regulate or control imports and exports generally and they dealt with a large variety of articles far outnumbering those enumerated in the Essential Supplies Act. The object of the Imports and Exports Act was not to regulate production and distribution of commodities considered essential to the community and it was not as a means to secure that object that it purported to prohibit or restrict exporting of goods. Thus the scope and purpose of the two sets of legislation were totally different and there was nothing wrong if they existed side by side and were in operation at one and the same time. Thus the scope and purpose of the two sets of legislation were totally different and there was nothing wrong if they existed side by side and were in operation at one and the same time. We are not told that there was any overlapping of the provisions of these two statutes and as the competency of the legislature to enact both these sets of provisions is not disputed we do not think that any occassional overlapping even if it is assumed to exist, would be at all material. In our opinion. Therefore, the contentions raised in regard to the constitutional point involved in these appeals are unsupportable and could not be accepted." (Underline is mine for emphasis) 44. However, it must be noticed that the Supreme Court in the aforementioned case was interpreting the provision of Essential Supplies (Temporary Powers) Act, 1946 and in particular sections 3 and 4 thereof. In terms of the said provisions the legislative object had been laid down to the effect that there should be a continuous control over the production, supply and distribution of commodities considered essential to the community as they were provincial subjects. It was observed that the Central Legislature in legislating the same was required to invoke the powers conferred upon it by State IX and X George VI Chapter 39 and that is plainly the reason why a reference thereto was made in the second paragraph of the Preamble. 45. It is, however, relevant to note that in the 7th Schedule framed in terms of sections 100 and 104 of the Government of India Act, 1935 there was no provision similar to Entry 41 of List-I of the VII Schedule of the Constitution of India. 46. The only relevant provision in List-I under the said Act whereby legislative power in respect of the commodities of customs was only Entry 43 relating to Duties of Customs, including Export duties whereas Entry 27 of. List-II which conferred upon the State power to make legislation. Entry 27 of conferred power of trade and commerce within the province legislation in respect of trade, market, money lending and money lendors. 47. It is, thus, evident that a sea change has taken place upon coming into force of Constitution of India; Entry 41 of List-I as also Entry 33 of List-III of the 7th Schedule of the Constitution of India refer to Trade and Commerce. 47. It is, thus, evident that a sea change has taken place upon coming into force of Constitution of India; Entry 41 of List-I as also Entry 33 of List-III of the 7th Schedule of the Constitution of India refer to Trade and Commerce. Hermoniously construed they should be held to have conferred legislative powers regulating trade and commerce with force in countries and trade and commerce within the country. Thus, now there exists a distinction as regards the legislative field in respect of trade and commerce with the foreign countries and trade and commerce within India. 48. In Darshan Singh (supra), the Apex Court did not have the occasion to consider the effect of the legislative field occupied under Entry 41 List I vis-a-vis Entry 33 List-III of the Constitution of India. The decision of the Supreme Court in Darshan Singh (supra) therefore, was rendered on the basis that the legislation in question being within the provincial subject of production, distribution and supply of goods; restriction of export was only ancillary to production and supply of essential commodities was held to be within the scope and ambit thereof and in pith and substance it was held to be an enactment dealing with those provincial matters. 49. In State of Bombay vs. Virkumar Gulabchand Singh, reported in AIR 1952 SC 335 , the Apex Court dealing with the Essential Supplies (Temporary Powel's) Act as a war-time legislation observed : "It is also perhaps relevant to note that the term which was under consideration in those cases occurred in a war-time measure, namely a Proclamation promulgated on 4.8.1914, the day on which the first world war started. There is authority for the view that war-time measures, which often have to be enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake, should be construed more liberally in favour of the Crown or the State than peace-time legislation. The only assistance I can derive from this case is that the term 'foodstuffs' is wide enough to cover matter which would not normally fall within the definition of what I have called food proper. I do not think it is helpful in deciding whether the wider or the narrower definition should be employed here because the circumstances and background are so different." 50. I do not think it is helpful in deciding whether the wider or the narrower definition should be employed here because the circumstances and background are so different." 50. The principal question, therefore, which arises for consideration is as to whether the impugned order can be reconciled with the provision of 1992 Act, the policy formulated by the Central Government and notification issued thereunder. In our considered Opinion, the said provisions of the said legislation are irreconcilable. 51. It has to be borne in mind that by reason of the delegating notification being G.S.R. No. 800 dated 8.6.1978 the Central Government did not confer any power of prohibition in respect of an essential commodity upon the State Government or any other authority. In Suraj Bhan vs. State of U.P., reported in AIR 1969 All 560 , it was held :- "Section 5 itself says that the Central Government can delegate power to make orders only in respect of such matters as are specified by the authority effecting delegation. That being so, the Central Government never possessed authority to delegate the power enjoyed by it under sub-section (1) to make orders without specifying the matters. That is why, the notification dated 9th June, 1966 by which delegation is effected takes care to specify matters in respect of which power to make orders is delegated. There is nothing wrong if in specifying matters the Central Government chosen to adopt the specifications contained in sub-section (2). And it was also in the discretion of the Central Government not to effect delegation in respect of all the matters, specified in sub-section (2). The Central Government actually omitted clause (g) of sub-section (2) in the notification effecting delegation. So, neither the language of the notification nor that of section 5 of the Act justifies the contention raised by the learned Counsel. The language of the notification clearly says that power under sub-section (1) of section 3 to make orders to provide for the matters specified in certain clauses of sub-section (2) as enumerated the face of that language and also that of section 5, it is impossible to maintain that the Central Government has by this notification delegated the general power to make orders under subsection (1)." 52. The fact that no power to impose prohibition in respect of an essential commodity has been conferred by the Central Government in favour of the State Government as contemplated under section 3(1) of the Act shall also appear from the decision of the Apex Court in District Collector, Chittoor vs. Chittoor District Groundnut Traders Association, reported in AIR 1989 SC 989 , it has been held :- "The policy decision taken by the State •Government and enforced under the aforesaid circular letter placed restriction on the transport and movement of edible oil and oil seeds and it further imposed compulsory levy requiring the millers and traders to supply oil to the State Government at the price fixed by it. There is no doubt that these steps were taken bona fide to ensure availability of the edible oil and oil seeds for public distribution at fair price but the steps taken by the State Government were not permissible in law as the 1982 Order did not confer power on the Government to place such restrictions. Section 3(2)(d) provides for regulating by licence, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity." 53. The Apex Court held that by reason of the aforementioned notification bearing No. GSR 800 dated 8th June, 1978 the State Government was delegated with limited power to make orders in relation to foodstuff. It was held :- "Any order made by the State Government regulating matters specified in clause (2) of the notification without obtaining the prior sanction of the Central Government would be in contravention of the delegated power. A delegate is not entitled to exercise powers in excess or in contravention of the delegated powers. If any order is issued or framed in excess of the powers delegated to the authorities, such order would be illegal and void." 54. The Supreme Court dealt with the conditions required to be fulfilled by the State Government before making an order and the limitation to its power to regulate sale and purchase of the scheduled commodities as specified in the Andhra Pradesh Scheduled Commodities Dealers (Licence and Distribution) Order, 1982. However, in that case a circular letter had been issued imposing restrictions on transport and movement which were held to be beyond the delegated power conferred upon the State in terms of section 3(2)(d) of the Act. However, in that case a circular letter had been issued imposing restrictions on transport and movement which were held to be beyond the delegated power conferred upon the State in terms of section 3(2)(d) of the Act. It was held that such restrictions were in excess and in contravention of the power delegated to the State under the said notification dated 8.6.1978. The submission made on behalf of the State to the effect that prior concurrence the Central Government had been obtained was found to have no merit. The Supreme Court further held that power to issue directions in terms of clause 12 of the said order does not bring within its purview the power to regulate. 55. However, a contrary view appears to have been taken by the Apex Court in K. Ramanathan vs. State of Tamil Nadu & Anr., reported in AIR 1985 SC 660 . Interpreting the same delegating notification bearing No. GSR 800 dated 8th June, 1978, the Apex Court held that the word 'regulation' may include prohibition. Upon taking into consideration a large number of decisions, the Apex Court held that the restriction placed on movement of wheat from one State to another and on movement of wheat from one district to another under clause (d) of sub-section (2) of section 3 is regulatory in nature. The court found that when the country is verging on conditions of acute shortage or even famine, the State can not only reimpose compulsory levy on the producer of paddy to the extent of 50% but also is empowered to introduce a scheme for a monopoly purchase of paddy by the Government with a view to build up is buffer stock for distribution through the distribution system throughout the State. It was held that one part of the 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. 56. The word 'regulate' means to control, govern, or direct by rule or regulation. It is a word which has different connotation in different context. 57. In several decisions it has been held that it brings within its encompass prohibition also. See Viroj Kunwar & Ors. vs. IInd Additional District Judge & Ors., reported in 1996 (1) SCC 571. 56. The word 'regulate' means to control, govern, or direct by rule or regulation. It is a word which has different connotation in different context. 57. In several decisions it has been held that it brings within its encompass prohibition also. See Viroj Kunwar & Ors. vs. IInd Additional District Judge & Ors., reported in 1996 (1) SCC 571. Samatha vs. State of Andhra Pradesh & Ors., reported in AIR 1997 SC 3297 and Samatha vs. State of U.P., reported in 1997 (8) SCC 191 . 58. It cannot, therefore, be accepted that the restriction on transport and movement on foodstuffs would not come within the purview of section 3(2)(d) despite the fact that power of absolute prohibition in terms of section 3(1) of the Act had not been delegated. 59. However, in this case as indicated hereinbefore this Court is faced up with absolutely different situation. Having regard to the nature of restrictions imposed in terms of paragraphs 9 and 10 of the impugned Control Order; can it be said that it merely incidentally touches the legislative field occupied by the Parliament under Entry-41 List-I of the Seventh Schedule of the Constitution of India? The word 'incidentally' has a definite connotation. The same would mean existence of a higher power in the authority. The State admittedly has no authority to impose any regulatory power under the delegating notification in respect of import and export. Even the Parliament does not have such power in terms of Entry 33 of List-III of the Seventh Schedule of the Constitution of India. As indicated hereinbefore, the learned Counsel for the parties have referred to a large number of decisions. But all the decisions speak in one language to the effect that doctrine of pith and substance should be applied and each entry should be construed in such a manner so that both provisions may be upheld or it has to be seen as to whether by enacting under one entry the concerned Government has only incidentally encroached upon field of legislation of the Parliament or not. Reference in this connection may be made to Siel Ltd. & Ors. vs. Union of India & Ors., reported in AIR 1998 SC 3076 : 1998 (7) SCC 26 . 60. Reference in this connection may be made to Siel Ltd. & Ors. vs. Union of India & Ors., reported in AIR 1998 SC 3076 : 1998 (7) SCC 26 . 60. In Medical Council of India vs. State of Karnataka & Ors., reported in 1998 (6) SCC 131 , a three Judge bench while interpreting Entry-63 of List-I and Entries No. 25 & 26 of List-III of the Sixth Schedule and upon taking into consideration a large number of decisions held :- "The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entry 25 or 26 of List III (Concurrent List). Regulations framed under section 33 of the Medical Council Act with the previous sanction of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in section 33. If a regulation falls within the purposes referred under section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendment Act of 1993 w.e.f. 27.8.1992) and clauses (j), (k) and (l) of section 33." 61. There, thus, cannot be any doubt whatsoever that the only question which would arise for consideration is as to whether the State Government by enacting clauses 9 and 10 of the Control Order had trenched upon the occupied field of the Parliament. The heading of clauses 9 & 10 the Control Order clearly indicates that the same relates to regulation of export which is admittedly outside the scope of Entry-33 List-III of the Seventh Schedule of the Constitution of India. Both Entry-33 of List-III and Entry-41 of List I deal with trade and commerce but where Entry 33 in relation to the production, supply and distribution of the goods referred to thereunder and Entry 41 deals with trade and commerce with foreign countries. Both Entry-33 of List-III and Entry-41 of List I deal with trade and commerce but where Entry 33 in relation to the production, supply and distribution of the goods referred to thereunder and Entry 41 deals with trade and commerce with foreign countries. Rule of purposive construction, thus, leads to the conclusion that by reason of Entry 33 trade and commerce in respect of the items mentioned therein should be kept confined to trade and commerce within India, as trade and commerce with foreign countries including import and export in terms of Entry 41 is within the exclusive domain of the Parliament. 62. Clause 9(1) of the Control Order deals with restriction on transport whereas; clause 4.21 of the export and import policy framed by the Central Government under section 5 of the 1992 Act clearly states that items allowed for export shall not be withheld/delayed for any reason by any agency of the Central or State Government. Both the provisions, thus, are in direct conflict with each other. Clause 9.2 provides for a prior permission of the nearest Controller when transhipment takes place from one vehicle to another. If clause 9.1 is bad, clause 9.2 cannot survive independently. 63. Clause 10 of the Control Order is in mandatory form. It totally prohibits export or import. It confers an absolute unguided, unbridled and uncontrolled power upon the authorities named therein to consider as to whether a permit for export should be granted or not. By reason of an order made under the delegated notification no authority of the State Government can authorise to issue permit for export. Such a contingency is contemplated only in terms of paragraph 5 of the 1992 Order. Once in terms of EXIM policy non-Basmati rice is considered to be free for export which decision must have been taken into consideration by the Central Government upon taking into consideration all aspects of the matter viz. availability thereof in the country, the quantum of production and the requirement within the courts, the State Government in exercise of its delegated power cannot be held to have any say in the matter. availability thereof in the country, the quantum of production and the requirement within the courts, the State Government in exercise of its delegated power cannot be held to have any say in the matter. If the State Government has any difficulty in relation thereto, it may bring the same to the notice of the Central Government so that at the time of registration of such contract entered into by and between the exporter and the foreign country, the same may be borne in mind by the appropriate authority so as to restrict number of registrations of contract by and between the exporters from India and the foreign Countries. 64. It is also well known that a form appended to an order forms an integral part thereof. Form-I as referred to hereinbefore, not only specifically provides for permission for such export but also imposes conditions in respect thereof. The restrictions imposed are severe in nature. 65. The exporter has also to furnish the details of the Letter of Credit, Bank Guarantee or CAD No. and the check-post through which such export should take place. It in no uncertain terms impose restrictions over and above the restrictions placed under the Government of India Import Export Policy 1992-97 which is no longer in force. The exporter has to disclose the name of the purchaser and the other details as referred to hereinebefore in terms of Form I appended to the Control Order. 66. By reason of making a provision to grant permit for export, thus, a prohibition has been made in the name of regulation inasmuch as a permit applied for mayor may not be granted. It is also beyond anybody's comprehension as to how without any policy decision taken by the Government in general, the authorities concerned can in every case arrive at a satisfaction that such export of rice will not adversely affect the price and availability of rice in the local market. The scheme itself appears to be unworkable and confers a naked, unguided and unbridled power upon the authorities named therein which is violative of Articles 14 and 246 of the Constitution of India. 67. It is, thus, clear that the power sought to be exercised by the authorities of the State in terms of the Control Order cannot be said to incidental or ancillary in nature. 67. It is, thus, clear that the power sought to be exercised by the authorities of the State in terms of the Control Order cannot be said to incidental or ancillary in nature. The impugned provisions of the Control Order are irreconcilable with the policy framed by the Central Act viz. 1992 Act. The State order imposes stricter restrictions on export and import. Provision of the State order and the Excise Policy cannot co-exist. Export of non-Basmati rice, thus, would be regulated by this different agencies. The State in terms of the said order seeks to exercise supervisory jurisdiction over the authorities of the Central Government which is not contemplated in law. 68. Thus, a bare comparison of the provisions of clauses 9 and 10 as also the conditions laid down in the permit as contained in Form-I of the 1997 Control Order leave no manner of doubt that the same does not incidentally entrench upon the field of export but in truth and substance imposes restrictions not even' contemplated under the 1992 Act or the EXIM Policy framed by the Central Government in terms of section 5 thereof. The restrictions imposed upon both Acts are irreconcilable, and, thus, the Control. Order framed by the State must yield to the EXIM Policy framed by the Central Government. 69. A Division Bench of the Delhi High Court in Bharat Barrel & Drum Manufacturing Co. Put. Ltd. vs. Union of India, reported in ILR 1973 (2) Del 779, while dealing the provision of clause 11A of Iron & Steel Control Order (1956) held : "If a person imports steel under a licence issued to him under the Imports and Exports (Control) Act and the Import Control Order then such a thing becomes his private property which he can use only in accordance with the terms of the import licence. The iron and steel which has become the property of the importer to be used for specific purpose only does not require to be controlled under the Essential Commodities Act or the Iron and Steel Control Order. For, already the importer is prohibited from selling it or even from consuming it in any manner except in accordance with the terms of the import licence. If he violates the terms of the licence, action against him can be taken under the Imports and Exports (Control) Act and the Import Control Order. For, already the importer is prohibited from selling it or even from consuming it in any manner except in accordance with the terms of the import licence. If he violates the terms of the licence, action against him can be taken under the Imports and Exports (Control) Act and the Import Control Order. There is nothing in the Essential Commodities Act, 1955 and the Iron and Steel Control Order 1956 issued there under to show that either the Act or the Order was intended to apply to such imported iron and steel which is the private property of the user and subject only to the conditions of the import licence regarding its use. No question of production, distribution, sale or consumption of such an article can arise under the Essential Commodities Act and the Iron and Steel Control Order. We are not, therefore, convinced that either the Essential Commodities Act or the Iron and Steel Control Order were intended to deal with the iron and steel imported under the user's licence to be used only for the manufacture of a specified commodity." Considering the language of clause 7, the bench opined : "Bearing in mind the fact that the Iron and Steel Control Order is issued under the Essential Commodities Act, such a construction of clause 7 of the order seems to us far fetched and beyond the scope not only of the Iron and Steel Control Order but also of the Essential Commodities Act. We are not satisfied, therefore, that the suspension of the sale of imported iron and steel is covered by the language of clause 7. As far the conditions of clause 28 it was argued by Shri Divan for the petitioner that petitioner was always willing to show the account books to the officer of the Iron and Steel Control but was unable to do so because of the disturbed conditions in the factory." 70. The Division Bench said that when an import is caused under the Import and Export (Control) Act, suspension of licence under the clause 11A of the Iron and Steel Control Order would not be justified. The same reasonings apply in all fours in the instant Case. 71. In Yam Organic Chemicals Ltd. & Anr. vs. State of U.P. & Ors., reported in 1997 (2) SCC 715 and Bihar Distillery & Anr. The same reasonings apply in all fours in the instant Case. 71. In Yam Organic Chemicals Ltd. & Anr. vs. State of U.P. & Ors., reported in 1997 (2) SCC 715 and Bihar Distillery & Anr. vs. Union of India & Ors., reported in 1997 (2) SCC 727 the Apex Court cited with approval its earlier decisions in State of A.P. vs. McDowell & Co., reported in 1996 (3) SCC 709 and held that the State in terms of Entry-8 List II of the Seventh Schedule was perfectly competent to allow manufacture, production, possession, transport, purchase and sale with reference to Entries 8 and 6 in List-II of the Seventh Schedule of the Constitution read with Article 47 thereof and the same is not in conflict with Item No. 26 of the 1st Schedule of the IDR Act. 72. In Govt. of Haryana & Ors. vs. Haryana Brewery Ltd. & Anr., reported in 1997 (5) SCC 758 , similar view had been taken. 73. The Apex Court also in State of Bihar & Ors. vs. Indian Aluminium Co. & Ors., reported in AIR 1997 SC 3592 , while dealing with the question as to whether Bihar Forest Restoration and Improvement of Degraded Forest Land Taxation Act, 1992 said to have been made in terms of Entry 49 of List-II encroached upon the legislative field of the Parliament conferred upon it under Entry-54 List-I held ;- "Applying the ratio of the aforesaid decisions to the facts of the present case we find that the position is not different. Entry 49 of List II has been interpreted to mean the levy of tax directly on land as a unit. The land has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List-II it is essential that 'land' as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied not on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land for non-forest purpose. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land for non-forest purpose. The Schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated no tax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized and non-mechanized excavation as well as underground excavation takes place and this is what is referred to in column 1 of the Schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and not on the land itself and is, therefore, outside the ambit of Entry 49 of List-II." 74. A conspectus of the aforementioned decisions, therefore, categorically shows as to how and in what manner the State may entrenche upon the legislative field occupied by the Parliament. 75. It is in the aforementioned context, the provision of the Essential Commodities Act and West Bengal Control Order framed under a delegated legislation vis-a-vis the Foreign Trade (Department of Regulation) Act, 1992 and the policy framed under section 5 there under have to be considered. 76. We may notice another submission of Mr. Kar Gupta. According to the learned Counsel, keeping in view the fact that in the instant case we are not concerned with the legislations made by the Parliament or the Legislature but only with the delegated legislations made by the Central Government and the State Government under 1992 Act and 1955 Act respectively, the Control Order can be held to be bad only if it is beyond the delegated legislation. The submission of learned Counsel is stated to be rejected. The submission of learned Counsel is stated to be rejected. If the State Government has exceeded its power in making an order which have been in excess and introvention of the legislative field covered under Entry-33 List-III of the Seventh Schedule of the Constitution of India, the question of delegatee exercising such power, which even the delegator not possess does not and cannot arise. In any event, by reason of a delegation of power a delegatee cannot in the guise of a subordinate legislation entrench upon a field which is wholly occupied by a Parliamentary Act. What could not be done by way of legislation, cannot evidently be done in terms of a subordinate legislation. As the provisions contained in clauses 9 and 10 of the Control Order are unconstitutional, the concurrence received from the Central Government cannot also save the said subordinate legislation. Only in a case where a legislation has been made by the State in exercise of its power conferred upon it under any of the entries made in List-III of the Constitution of India and in the event it obtains sanction of the President of India, the said Act shall prevail over the Central Act in' terms of clause 2 of Article 254 of the Constitution of India. Such is not the position here. 77. It has been submitted by Mr. Mishra the learned Counsel appearing on behalf of the State that in M.A.T. No. 333 of 1999, M.A.T. No. 334 of 1999 and M.A.T. No. 337 of 1999 no point had been taken as regards vires of clauses 9 and 10 of the Order. We had been taken through the statement made in the writ application, from a perusal whereof it appears that the petitioners therein proceeded on the basis that in view of the Division Bench decision in F.M.A.T. No. 916 of 1996 (Alok Kumar Sen & Ors. vs. State of West Bengal & Ors.) disposed of on 4th October, 1996 presided over by B.P. Banerjee, J, that the State Government had no authority to make such an order. As indicated hereinbefore, although obis Bench has explained the said decision but there cannot be any doubt whatsoever that the learned Trial Judge could not have ignored the same. vs. State of West Bengal & Ors.) disposed of on 4th October, 1996 presided over by B.P. Banerjee, J, that the State Government had no authority to make such an order. As indicated hereinbefore, although obis Bench has explained the said decision but there cannot be any doubt whatsoever that the learned Trial Judge could not have ignored the same. A decision of a Division Bench whether right or wrong was binding upon the learned Trial Judge and if the learned Judge disagrees with the decision of the Division Bench, he could have requested the Hon'ble Chief Justice for constituting a larger bench or refer the matter to the Division Bench for consideration as to whether the decision of the Division Bench is correct or not and in the event it is found by the Division Bench that the same was not correct, it could refer the same to a larger bench. In any event, the declaration of a law as regard the constitutional provision operate in rem and, thus, decision in one case shall apply to all the cases. 78. For the reasons aforementioned, these appeals are allowed. The judgments and orders passed by the learned Trial Judge are set aside and the respondents are hereby directed to release all vehicles or goods seized, if any pursuant to the West Bengal Rice and Control (Amendment) Order and refrain from taking any action pursuant thereto or in furtherence thereof. It, however, goes without saying that in the event, on an information received by the authorities of the State of West Bengal any irregularity comes to their notice, they may take appropriate action in accordance with law. They may also insist that before movement of the goods takes place, the exporters should inform the appropriate authorities so that the vehicles in question may be checked by the appropriate authorities. 79. In view of our findings aforementioned it must be held that the said order does not conform to the policy laid down by the Central Government in exercise of its power conferred upon it under section 5 of the 1992 Act inasmuch as in terms thereof, the Central Government could not even itself interfere with the proclaimed policy relating to import and export adopted by it in terms of section 5 of the 1992 Act. In the facts and circumstances of this case there will be no order as to costs. In the facts and circumstances of this case there will be no order as to costs. S.N. Bhattacharjee, J.: I agree. Appeals allowed.