ORDER
Viney Mittal, J.
1. This issue projected for determination before this Court is:
2. Whether for the purpose of carrying on the business of producing and selling of Bt cotton hybrid seeds, a permission from the Director of Agriculture of the State Government or from the State Biotechnology Co-ordination Committee (SBCC) is required ?
3. The facts leading to the aforesaid question may be noticed
4. The petitioner-Seeds Association of Madhya Pradesh, Indore (hereinafter referred to as 'petitioner-Association'), is a society registered under the provisions of Societies Registration Act, 1860, and is an association of persons involved in the business of the manufacture/production and sale of the seeds. Members of the petitioner-Association are also involved in the manufacture of Bt cotton hybrid seeds variety, which is a hybrid variety of seeds developed through gene transfer technology. According to the petitioner-Association, its members engaged in the dealings of aforesaid Bt cotton hybrid seeds variety, have already obtained valid licences issued under the provisions of the Seeds Act, 1966. By way of illustration, a copy of a licence issued to one of the members of the petitioner-Association has been appended as Annexure P-2 with the petition.
5. The petitioner-Association has pleaded that under the provisions of the Environment (Protection) Act, 1986, (hereinafter called as 'Environment Act'), rules have been framed, known as Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically Engineered Organisms or Cells, 1989, (hereinafter called as 'Rules'). According to the petitioner-Association, its aforesaid members engaged in the business of Bt cotton hybrid seeds are required to obtain a prior permission for sale of Bt cotton hybrid seeds from the Genetic Engineering Approval Committee (GEAC), constituted under Rule 4 (4) of the Rules. A State Bio-technology Coordination Committee (SBCC) is required to be constituted in the States, where required, having powers to inspect, investigate and take punitive action, in case of violation of the statutory provisions, through the Nodal Department and the State Pollution Control Board/Directorate of Health/Medical Services. The aforesaid Committee, SBCC, is required to review periodically the safety and control measures in the various industries/institutions, handling genetically engineered organisms/hazardous Micro- organisms.
6. It has been pleaded by the petitioner-Association that under Rule 4 (5) of the Rules, the Secretary, General Administration Department, Government of M.P., respondent No. 2, has constituted the SBCC, through an order dated August 9, 2007. A copy of the aforesaid order dated August 9, 2007 has been appended as Annexure P-4 with the petition. According to the petitioner-Association, although there was no power vested with any of the State Authorities, including the aforesaid constituted SBCC, under the provisions of 1986 Act or the Rules framed thereunder, to grant permission for sale of the Bt cotton hybrid seeds, still a clause had been inserted in the said order (Annexure P-4), whereby a prior permission for the aforesaid variety of cotton seeds had been envisaged, and as such was required to be taken by a manufacturer/seller. The petitioner-Association has maintained that under the provisions of Right to Information Act, 2005, it had sought an information/clarification from GEAC, constituted under the Rules, as to whether the members of the petitioner- Association, engaged in dealing with Bt cotton hybrid seeds, were required to obtain any permission for sale from any State Authority or SBCC, and in response to the said enquiry, the Assistant Director, Seeds, Department of Agriculture and Co-operation, Ministry of Agriculture, Government of India, had, through a communication dated May 9, 2008, forwarded to the petitioner- Association by the Director, Ministry of Environment and Forest, Government of India, through a communication dated May 26, 2008, has informed that 'there is no provision in Seeds Act, 1966 and Seeds Rules, 1968, to obtain prior sale permission of the State Government for selling the seeds'. Copies of the aforesaid communications, issued by the Government of India, dated May 9, 2008 and May 26, 2008, have been appended as Annexures P-5 and P-6, respectively, with the petition.
7. The petitioner-Association also sought the aforesaid information under the provisions of Right to Information Act, from the Director of Agriculture, Government of M.P., respondent No. 4, with regard to the authority for grant of sale permission of Bt cotton hybrid seeds. In reply, a communication dated July 25, 2008 was received by the petitioner-Association, informing that the said permission was, indeed, required in terms of the order issued by the General Administration Department on August 9, 2007, and since the Director, Agriculture Department, had been nominated as a member, therefore, the said permission was required, accordingly, from the said authority. A copy of the aforesaid communication dated July 25, 2008, issued by respondent No. 4, has been appended as Annexure P-7 with the petition.
8. On the basis of a specific plea that on account of the fact that under the provisions of 1986 Act and the 1989 Rules, since the requisite permission had already been obtained by the members of the petitioner-Association from GEAC, which is a Central Authority constituted under Rule 4 (4) of the Rules, therefore, under any other provision of law, no further permission was required, either from any Authority of the State Government, or from the Committee (SBCC), constituted by the State Government.
9. It is with the aforesaid grievance that the petitioner-Association has approached this Court through the present petition, raising a challenge to Clause 3 of the order dated August 9, 2007, Annexure P-4, wherein such a prior permission is envisaged.
10. In support of the aforesaid challenge, the petitioner-Association has detailed out various provisions of 1986 Act, 1989 Rules, and also the clarifications issued by the Government of India (Annexures P-5 and P-6). According to the petitioner-Association, the requirement of a prior permission, envisaged under Clause 3 of the order (Annexure P-4), was absolutely without any Legal Authority and as such, no such power could have been exercised by respondent No. 4.
11. In pursuance to the show-cause notice issued by this Court, two separate replies have been filed.
12. A reply has been filed by the Union of India, respondent No. 1. In the aforesaid reply, the claim made by the petitioner-Association has been accepted by placing reliance upon the provisions of 1986 Act, and 1989 Rules. According to the Union of India, the terms of the reference of SBCC, constituted by the General Administration Department of the State Government, respondent No. 2, through order dated August 9, 2007, were not in conformity with the statutory provisions, which according to Union of India, did not empower respondent No. 2 to accord any approval for genetically modified seeds. Union of India, has further detailed that Genetic Engineering Approval Committee (GEAC) is constituted to function as a body for approval of activities involving large scale use of hazardous micro-organisms and re-combinants, in research and industrial production, from environment angle, and as per the Rules, is required to regulate, grant approvals to the proposal etc. for import, export, transport, manufacture, process, use or sale of the aforesaid products, and being a statutory body, performs the aforesaid functions. It has been further detailed by the Union of India that an SBCC is merely empowered and notified under the Rules of 1989, and to supervise the conditions stipulated by GEAC, in connection with the grant of approvals. According to respondent No. 1, after amendment of the Essential Commodities Act in the year 2006, the cotton seeds stand excluded from the list of essential commodities, and therefore, the State Government had absolutely no authority to power to envisage any prior permission for sale of the said cotton seeds in the State.
13. However, a separate reply has been filed by respondent Nos. 2 to 5, i.e., the State Government and its Authorities. In the said reply, the claim made by the petitioner-Association has been contested. Primarily, reliance has been placed upon the provisions of the Seeds (Control) Order, 1983, and the notification issued thereunder. It has been maintained that under the Seeds Control Order, a person desirous of engaging in selling, exporting or marketing seeds, is required to obtain a licence from the Competent Authority. According to the respondents, in view of the aforesaid fact, the State Authorities had the jurisdiction and authority to require a person to obtain a prior permission, while dealing with the Bt cotton hybrid seeds.
14. Respondent Nos. 2 to 5, have further averred that although GEAC is granting the approval of activities involving large scale use of hazardous micro-organisms and re-combinants in research and industrial production from the environmental angle, SBCC constituted under Rule 4 (5) of the Rules, 'has power to inspect, investigate and take punitive action in case of violation of statutory provisions. Further, the Committee has power to review periodically the safety and control measures in various industries/institutions handling genetically engineered organisms/hazardous micro-organisms'. A further reliance has been placed on Rule 14 (2) of the Rules and it has been maintained that in pursuance to the aforesaid provision, the SBCC constituted by the State Government, through order dated August 9, 2007, Annexure P-4, has the power to require a person engaged in said activities to obtain a prior permission. Whereas the clarification issued by the Government of India, through communications (Annexures P-6 and P-7) has not been denied and commented upon by the State Government Authorities, their independent power, under the provisions of 1986 Act and 1989 Rules, has been reasserted.
15. I have heard Shri S.C. Bagadiya, learned Senior Counsel for the petitioner-Association, Shri V.K. Zelawat, learned Assistant Solicitor General, appearing for Union of India-respondent No. 1 and Shri Vivek Patwa, learned Deputy Government Counsel, appearing for respondent Nos. 2 to 5, and with their assistance, have also gone through the record of the case.
16. During the course of arguments, Shri S.C. Bagadiya, learned Senior Counsel for the petitioner-Association, has contended for the petitioner-Association, what has been pleaded by it. With a great vehemence Shri Bagadiya, has referred to various provisions of the Environment (Protection) Act, 1986, and 1989 Rules framed thereunder, and contends that in absence of any Legislative support to any authority in the State Government, vesting a power of grant of a prior permission for genetically hybrid seeds, Clause 3 of the order dated August 9, 2007, Annexure P-4, cannot be sustained. The learned Senior Counsel has argued that in absence of a law enacted by the State Legislature, or any Central Legislation supporting the aforesaid power in the State Authorities, the Constitution rights guaranteed to the members of the petitioner-Association, engaged in Bt cotton hybrid seeds manufacturing, could neither be regulated nor curtailed, requiring such manufacturers, merely through an executive order (Annexure P-4), to obtain a prior permission. Shri Bagadiya, has contended that issuance of the aforesaid order (Annexure P-4), containing Clause 3 therein, could not be treated to be 'a procedure established bylaw'.
17. Shri V.K. Zelawat, learned Assistant Solicitor General, appearing for Union of India, respondent No. 1, as per the stand taken by it in its reply, has supported the challenge raised by the petitioner-Association. According to Shri Zelawat, under the Seeds Act, 1966, and the Rules of 1968, no prior permission was required for sale of the Bt cotton hybrid seeds. However, Shri Zelawat, argues that Bt cotton hybrid seeds were covered under the provisions of 1986 Act and the Rules framed thereunder, and as such the persons engaged in the said business were required to take prior permission from the Genetic Engineering Approval Committee (GEAC), constituted by the Central Government, but under the 1986 Act or the Rules, no such power vested in the State Government, or any Committee like SBCC, constituted by the State Government, envisaging a prior permission. Thus, as per the learned Counsel, Clause 3 of the order (Annexure P-4), was completely without any Legislative support.
18. On the other hand, Shri Vivek Patwa, learned Deputy Government Counsel, appearing for the State Authorities, i.e., respondent Nos. 2 to 5, has refuted all contentions raised on behalf of the petitioner-Association and has even joined issue with the stand taken by the Union of India. According to the learned Counsel, under Seeds (Control) Order, 1983, and as per the notification issued thereunder, a licence was required to be obtained by a seeds dealer, and therefore, for the purposes of the sale of Bt cotton hybrid seeds variety, a prior permission had been envisaged through order (Annexure P-4). Shri Patwa, also maintains that as per the provisions of 1986 Act, and the 1989 Rules, the constitution of a State Level Committee, like SBCC was duly provided for, and in exercise of said powers, the State Government had issued the order (Annexure P-4), dated August 9, 2007, constituting the said Committee. Relying upon the provisions of Rule 4 (5), read with Rule 14 (2) of the Rules, 1989, learned Deputy Government Counsel contends that there is a clear authority vested in the said Committee, to require a dealer to obtain a prior permission, while engaged in the sale of Bt cotton hybrid seeds.
19. I have duly given my thoughtful consideration to the rival contentions raised on behalf of the parties.
20. At the outset, it may be noticed, as has not at all been disputed between the parties, that prior to the amendment of the Essential Commodities Act, through the Amendment Act, 2006 (Act 54 of 2006), cotton seeds were included in the list of essential commodities and as such its sales etc. were duly regulated and controlled by Seeds Control Order. Later, on exclusion of the cotton seeds from the list of essential commodities in the year 2006, the cotton seeds, having ceased to remain an essential commodity, Seeds Control Order also became inoperate qua the cotton seeds. There was no further requirement of any regulation of the cotton seeds, nor any licence was required to be obtained under the Seeds Control Order. However, even the petitioners concede that under the provisions of the Environment Act and the Rules framed thereunder, for the manufacture, use, import, export and storage of hazardous micro-organisms/genetically engineered organisms or cells and seeds, in the year 1989, some rules were framed. For the commercial release of those specified species of Bt cotton hybrid seeds, an approval was required to be obtained from GEAC.
21. The petitioner-Association maintains that its members, dealing in the aforesaid variety of cotton seeds, have already obtained the requisite permission from GEAC. Thus, the question which now arises is as to whether the requisite permission under 1986 Act and 1989 Rules having already been obtained by the manufacturers/sellers from the GEAC, and there being no application of the Essential Commodities Act and the Seeds (Control) Order, could it still be said that any prior permission was required by such manufacturers/sellers from the State Authorities or the SBCC It may be pertinent to comment that obviously the stand taken by respondent Nos. 2 to 5 in their reply that such a permission was justified, as per the application of the Seeds (Control) Order, is clearly over-looking the amendment of the Essential Commodities Act. Thus, the aforesaid stand taken by respondent Nos. 2 to 5, cannot be accepted by this Court.
22. At this stage, it would be relevant to notice the preamble of The Environment (Protection) Act, 1986, as follows:
An Act to provide for the protection and improvement of environment and for matters connected therewith.
Whereas decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment.
And whereas it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property.
23. A perusal of the preamble of the Environment Act would show that the aforesaid Act had been enacted in terms of the decision taken at the United Nations Conference on the Human Environment, in which India had also participated, to take appropriate steps for the protection and improvement of human environment, and therefore, the said Act had been enacted to provide for the protection and improvement of environment, and for matters connected therewith.
24. Since both learned Counsel for the parties have placed strong reliance upon various provisions of 1986 Act, it would also be relevant to extract the aforesaid referred provisions of Environment (Protection) Act, 1986 as under:
Section 2. Definitions.:
Section 2. (d) 'handling' in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;
Section 2. (e) 'hazardous substance' means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.
Section 2. (f) 'Occupier' in relation to any factory or premises, means a person who has control over the affairs of the factory or the premises and includes, in relation to any substance, the person in possession of the substance.
Section 5. Power to give Directions.:
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation: For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct:
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service.
25. It would also be pertinent to extract the Rules for the Manufacture, Use/Import/Export and Storage of Hazardous Micro Organisms/Genetically Engineered Organisms or Cells, 1989 (the relevant Rules being as follows):
3. Definitions.:
(iv) 'Genetic engineering' means the technique by which heritable material, which does not usually occur or will not occur naturally in the organisms or cell concerned, generated outside the organism or the cell is inserted into said cell or organism. It shall also mean the formation of new combinations of genetic material by incorporation of a cell into a host cell, where they occur naturally (self cloning) as well as modification of an organism or in a cell by deletion and removal of parts of the heritable material.
(v) 'micro-organisms' shall include all the bacteria, viruses, fungi, mycoplasma, cells lines, algae, protozoans and nematodes indicated in the schedule and those that have not been presently known to exist in the country or not have been discovered so far.
4. Competent Authorities.:
(4) Genetic Engineering Approval Committee (GEAC).- This Committee shall function as a Body under the Department of Environment, Forests and Wildlife for approval of activities involving large scale use of hazardous micro-organisms and re-combinants in research and industrial production from the environmental angle. The Committee shall also be responsible for approval of proposals relating to release of genetically engineered organisms and products into the environment, including experiment field trials.
The Composition of the Committee shall be:
(i) Chairman- Additional Secretary, Department of Environment, Forests and Wild Life,
Co-Chairman- Representative of Department of Biotechnology,
(ii) Members,
(iii) Expert Members,
(iv) Member Secretary- An official of the Department of Environment, Forest and Wild life.
The Committee may co-opt other members/experts as necessary.
The Committee or any person/s authorised by it shall have powers to take punitive actions under the Environment (Protection) Act.
(5) State Bio-technology Co-ordination Committee (SBCC).- There shall be a State Biotechnology Coordination Committee in the States wherever necessary. It shall have powers to inspect, investigate and take punitive action in case of violations of statutory provisions through the Nodal Department and the State Pollution Control Board/Directorate of Health/Medical Services. The Committee shall review periodically the safety and control measures in the various industries/institutions handling genetically engineered organisms/Hazardous microorganisms.
The composition of the Coordination Committee shall be:
(1) Chief Secretary - Chairman.
(2) Secretary, Department of Environment - Member Secretary.
(3) Secretary, Department of Health - Member.
(4) Secretary, Department of Agriculture - Member.
(5) Secretary, Department of Industries and Commerce - Member.
(6) Secretary, Department of Forest - Member.
(7) Secretary, Department of Public Works/Chief Engineer, Department of Public Health Engineering - Member.
(8) State Microbiologists & Pathologists - Member.
(9) Chairman of State Pollution Control Board - The Committee may co-opt other members/experts as necessary.
(6) District Level Committee (I)LC).- There shall be a District Level Biotechnology Committee (DLC) in the districts wherever necessary under the District Collectors to monitor the safety regulations in installations engaged in the use of genetically modified organisms/hazardous micro-organisms and its applications in the environment.
The District Level Committee or any other persons authorised in this behalf shall visit the installation engaged in activity involving genetically engineered organisms, hazardous micro-organisms, formulate an information chart, find out hazards and risks associated with each of these installations and co-ordinate activities with a view to meeting any emergency. They shall also prepare an off-site emergency plan. The District Level Committee shall regularly submits its report to the State Bio-technology Co-ordination Committee and the Genetic Engineering Approval Committee.
7. Approval and Prohibition etc.:
No person shall import, export, transport, manufacture, process, use or sell any hazardous micro-organisms or genetically engineered organisms/substances or cells except with the approval of the Genetic Engineering Approval Committee.14. Supervision.:
(1) The Genetic Engineering Approval Committee may supervise the implementation of the terms and conditions laid down in connection with the approvals accorded by it.
(2) The Genetic Engineering Approval Committee may carry out this supervision through the State Bio-technology Co-ordination Committee or the State Pollution Control Board/District Level Committee or through any person authorised in this behalf.
26. 1989 Rules have been framed by the Central Government, in exercise of various powers conferred upon it by 1986 Act. Rule 4 of the Rules, provides for constitution of various committees for different purposes envisaged under 1986 Act. Rule 4 (4), provides for constitution of a Genetic Engineering Approval Committee (GEAC). The aforesaid Committee is to function as a body under the Department of Environment, Forests and Wild Life of the Central Government. Rule 4 (5) of the Rules, envisages the constitution of a State Biotechnology Co-ordination Committee (SBCC), in a State, where required, having power to inspect, investigate and take punitive action in case of violation of statutory provisions. The aforesaid Committee is required to review periodically the safety and control measures in the various industries/institutions handling genetically engineered organisms/hazardous micro-organisms. Under Rule 14, the GEAC is the apex body to supervise the implementation of the terms and conditions with regard to the various approvals accorded by it, and for the aforesaid purposes, the assistance of the SBCC has been envisaged to GEAC. Even Rule 14 (2), strongly relied upon by learned Deputy Government Counsel, does not envisage any independent power for SBCC, authorising it the grant of any prior permission. The spirit and the language employed in 1989 Rules only envisages the over all and pervasive control of the Central Body only, with the State Level and even District Level assistance, for implementation of the provisions of 1986 Act and the Rules. Neither any independent power is visualized, nor could the same be inferred in the SBCC, from reading of any of the Rules.
27. It may not be out of place to notice that if the stand taken by respondent Nos. 2 to 5, and the reliance placed by them on Rule 4 (5) read with Rule 14 (2), were to be accepted by this Court to conclude that SBCC was also having an authority and power to require a prior permission by a manufacturer/ seller, then on a similar interpretation of Rule 4 (6) of the Rules, it would also have to be concluded that even a District Level Committee (DLC) would also enjoy such a power. The requirement of a permission at multi-levels, i.e., Central Level, State Level and District Level, had never been visualized by the 1989 Rules, nor can be subscribed to by this Court.
28. It is not a matter of any dispute, nor there can be, that the cotton seeds manufacturers of Bt hybrid variety (members of the petitioner-Association) have constitutional rights guaranteed to them to carry on their trade and business in terms of Article 19(1)(g) and Article 301 of the Constitution of India. Unless and until, reasonable restrictions, as envisaged by the Constitutional provisions, are imposed upon such manufacturers/sellers through an 'authority of law' the question would arise as to whether the directions such as per Clause 3 of Annexure P-4, requiring them to obtain a prior permission, can be sustained
29. It would be advantageous for the Court to notice certain observations made by the Supreme Court in Rai Sahib Ram Jawaya Kapur and Ors. v. The Slate of Punjab : AIR 1955 SC 549:
(17) Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.
30. Therefore, when the State Government intends to exercise certain powers, then pre-existence of a specific legislation sanctioning such course is essentially required. Noticing the aforesaid position of law, as laid down in Wazir Chand v. State of Himachal Pradesh : AIR 1954 SC 415, the Apex Court reiterated the said principle in the case of Bishan Das and Ors. v. State of Punjab and Ors. : AIR 1961 SC 1570, by observing that the State or its Executive Officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.
31. Certain observations again made by the Supreme Court in the case of Kharak Singh v. State of U.P. and Ors. : AIR 1963 SC 1295, may also be noticed:
Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chapter XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be 'a law' which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be 'a procedure established by law' within Article 21. The position, therefore, is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedom guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations.
In the aforesaid case, it was further observed by the Apex Court:
The fact that an act by the State Executive or by a State Functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the Ordinary Courts is wholly immaterial and, we would add, irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State Executive infringes a guaranteed liberty only when it is not authorised by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action - civil or criminal at the instance of the injured person for redress.
32. Although it is wholly unnecessary to notice that the right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations and reasonable restrictions for controlling and regulation of the aforesaid rights can be imposed, but the aforesaid restrictions of regulation and control can only be imposed by enacting a valid 'law'. The existence of any such law in the State of Madhya Pradesh has not been pleaded nor there exists one. In these circumstances, it would also be relevant to notice the observations of the Apex Court in the case of Bishambhar Dayal Chandra Mohan and Ors. v. Stale of Uttar Pradesh and Ors. : (1982) 1 SCC 39:
32. The real question at issue is whether or not the seizure of wheat was with the authority of law. The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights. The Court must balance the individual's rights of freedom of trade under Article 19(1)(g) and the freedom of inter-State trade and commerce under Article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights.
After noticing the aforesaid requirement for balancing, the Supreme Court held as follows:
41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word 'law' in the context of Article 300-A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State-made law. The decisions in Wazir Chand v. State of H.P. and Bishan Das v. State of Punjab are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand case, the Police of India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu & Kashmir. The seizure was admittedly not under the authority of law, in as much as it was not under the orders of any Magistrate; nor was it under Sections 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the Police in India, and the Indian Police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under Article 31(1). The view was reaffirmed in Bishan Das case.
33. The order (Annexure P-4) containing the impugned Clause 3, requiring a prior permission, has absolutely no statutory basis, and is in the nature of mere departmental/executive instructions. The said executive/ departmental order issued by the General Administration Department, requiring the prior permission, thus cannot be sustained. Respondent Nos. 2 to 5 have, in fact, completely failed in satisfying the Court the existence of any such power or 'law' authorising the State or its Authorities to require a manufacturer/seller of Bt cotton seeds variety, to obtain a prior approval from the State Authorities.
34. Before parting with this order, it would be relevant to notice that in a writ petition, being W.P. No. 3435 of 2008, All India Crop Biotech Association of India and Anr. v. Slate of Madhya Pradesh and Ors. a challenge had been raised by the aforesaid writ petitioners to fixation of Maximum Retail Price (MRP) of the Bt cotton hybrid seeds by the State Government. In the said writ petition, the State Government had placed reliance upon the order dated August 9, 2007 (appended as Annexure P-4 in the present petition) to claim a support for its power to fix the said MRP. While holding that the State Government had absolutely no power under the provisions of the Environment Act and the Rules, this Court had even referred to the order dated August 9, 2007, to hold that even the said order did not authorise the Director, Agriculture to fix the MRP. The following observations made by this Court, may be extracted:
The respondents have also pleaded that a committee under Rule 4 of the Rules, 1986, under the Environment Act, being SBCC, had been constituted 'to review periodically the safety and control measures' by the State Government on August 9, 2007 (Annexure R-2). A specific reliance has been placed on Clause 2 (3) of the said order by maintaining that the aforesaid SBCC had the power to fix the retail price of the seeds in the State. I have perused Clause 2 (3) of the Government order dated August 9, 2007, Annexure R-2. The said clause merely authorises SBCC to grant permission for GM seeds in the State. However, a grant of permission for selling the products, covered under the Environment Act and the Rules is not the same thing as authorising the said Authority to fix the price of the said products also. Neither any such authority had been vested in SBCC by the Government order (Annexure R-2), nor the State Government was even competent, under the provisions of the Environment Act and the Rules, to have vested in SBCC any such authority of price fixation.
35. Since in the said Writ Petition No. 3435 of 2008, no issue with regard to the validity of the circular/order dated August 9, 2007 had ever arisen before this Court, therefore, obviously, the said question had never been gone into by this Court, and therefore, the aforesaid observations made with reference to the circular/order dated August 9, 2007, cannot be taken to be an expression of this Court for upholding the validity thereof. However, in the present case, since the only challenge raised by the petitioner-Association is with regard to the validity/constitutionality of Clause 3 of the said circular, therefore, the said issue has now been examined by this Court in the present writ petition.
36. In view of the aforesaid discussion, the present petition is allowed. Clause 3 of the order dated August 9, 2007, Annexure P-4, requiring the manufacturers/sellers of the Bt cotton hybrid seeds, to obtain a prior permission from the State Authorities, respondent Nos. 2 to 5, is hereby quashed, being illegal, null and void and without any authority of law.
C.C. as per rules.