P. V. Sivarajan Vs. The Union of India
& ANR [1958] INSC 130 (11 December 1958)
GAJENDRAGADKAR, P.B.
DAS, SUDHI RANJAN (CJ) DAS, S.K.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION: 1959 AIR 556 1959 SCR Supl. (1) 779
CITATOR INFO :
RF 1970 SC 564 (191) R 1986 SC1541 (10)
ACT:
Coir Industry, Regulation and Control
of-Registration of exporter and licensee-Quantitative test-Constitutional
validity-Coir Industry Act, 1953 (45 of 1953), S. 26, rr. 18, 19, 20(1)(a), 21,
22(a) -Constitution of India, Arts. 19, 14.
HEADNOTE:
The petitioner, an unsuccessful applicant for
registration as an exporter and licensee for exporting coir products,
challenged the vires of the rr. 18, 19, 20(1)(a), 21 and 22(a) made by the
Central Government in exercise of its powers under S. 26(1) of the Coir
Industry Act, 1953 (45 Of 1953). The Act had for its object the regulation and
control of the Coir industry in public interest. It was contended on his behalf
that the impugned rules, which prescribed the quantitative, and not the
qualitative, test for registration of established exporters, were inconsistent
with the provisions of the Act and as such, ultra vires the Act and that they
tended to create a monopoly in the export trade of coir commodities and thereby
destroy the business of small dealers and discriminated between those who
carried on large scale business and those who carried on small scale business
and thus impugned Arts. 19 and 14 of the Constitution.
Held, that the contentions were without
substance and must be negatived.
There was no provision in the Coir Industry
Act, 1953, that excluded or prohibited the application of the quantitative test
and the rules were in no way inconsistent with the Act nor in excess of the
powers conferred on the Central Government by s. 26 of the Act.
Where an Act sought to control an industry in
public interest it would obviously be for the rule making authority to decide
which rules and regulations would meet the requirement of public interest. Such
rules and regulations, though reasonable within the meaning of Art. 19(6),
might cause hardship to those who failed to comply with them. But once it was
conceded that the regulation and control of the trade were justified in public
interest, Art. 19(1)(g) could not be invoked to challenge the validity of the
rules.
Nor did the impugned rules violate Art. 14 Of
the Constitution. The classification of traders under rr. 18 and 19 was clearly
founded on an intelligible differentia that had a rational relation to the
object of the Act. The exemption made by the rules in favour of co-operative
societies from some of the relevant tests indicated that the Legislature
intended to encourage small 780 traders. It was not, therefore, correct to say
that the rules would lead to a monopoly in the trade.
ORIGINAL JURISDICTION: Petition No. 121 of
1958.
Petition under Article 32 of the Constitution
for enforcement of Fundamental rights.
G. B. Pai and Sardar Bahadur, for the
petitioner.
M. C. Setalvad, Attorney-General for India,
B. Sen and T.
M. Sen, for the respondents.
1958. December 11. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-The petitioner has been doing business as
an exporter of coir products to foreign countries for the last twenty years. On
July 4, 1958, he applied to respondent 2, the Chairman, Coir Board, Ernakulam,
requesting that he should be registered as an established exporter. This
application was accompanied by an income-tax clearance certificate and attested
copies of bills of lading. Respondent 2 declined to register the petitioner on
the ground that his application was defective inasmuch as the requisite
certificate regarding his financial status bad not been produced and no
evidence had been given to show that he had exported the minimum quantity
required (500 Cwts.). The petitioner was told that unless he complied with the
requirements asked for within seven days his application would be rejected
without further notice. The petitioner found that he could not comply with the
directions issued by respondent 2 and so it became impossible for the
petitioner to get registration and licence applied for by him. That is why he
filed the present petition under Art. 32 of the Constitution and prayed for the
issue of a writ or order in the nature of mandamus to direct the second
respondent to grant the petitioner registration and licence as applied for by
him and to prohibit or restrain the said respondent from acting on, or
implementing, the rules issued under the Coir Industry Act, 1953, by issue of a
writ of certiorari, prohibition or such other writ or order appropriate to
protect his rights. The petitioner also prayed that " if found necessary
" the said 781 rules should be declared to be ultra vires the powers of
the Central Government and invalid being in violation of the fundamental rights
guaranteed by Arts. 14 and 19 of the Constitution. The Union of India has, been
impleaded as respondent 1 to the petition.
Before dealing with the points raised by the
petition it would be necessary to refer briefly to the provisions( of the Coir
Industry Act, 1953 (45 of 1953), hereinafter called the Act, and the rules
framed under it in 1958. This Act was enacted by the Parliament because it was
thought expedient in the public interest that the Union should take under its
control the coir industry (s. 2). Section 4 of the Act provides for the
establishment and constitution of the Coir Board and s. 10 enumerates its
functions and duties.
Under s. 10(1) it shall be the duty of the
Board to promote by such measures as it thinks fit the development under the
control of the Central Government of the coir industry.
Sub-section (2) enumerates the measures which
the Board may take with the object of developing the coir industry without
prejudice to the generality of the provisions of sub-s. (1).
Amongst the measures thus enumerated, sub-s.
(2) (b) refers to the regulation under the supervision of the Central
Government of the production of husks, coir yarn and coir products by
registering coir spindles and looms for manufacturing coir products, as also manufacturers
of coir products, licensing exporters of coir yarn and coir products and taking
such other appropriate steps as may be prescribed. Sub-section (2)(g) refers to
the promotion of co-operative Organisation among producers of husks, coir fibre
and coir yarn and manufacturers of coir products, and sub-s. (2)(1) refers to
the licensing of retting places and warehouses and otherwise regulating the
stocking and sale of coir fibre, coir yarn and coir products both for internal
market and for exports. Section 26(1) confers on the Central Government power
to make rules for carrying out the purposes of the Act subject to the condition
of previous publication. Sub-section (2) enumerates the matters in respect of
which rules may be made, in particular and without prejudice to the generality
of the power 782 conferred by sub-s. (1). Subsection (2) (k) refers inter alia
to the registration of manufacturers of coir products and the conditions for
such registration and the ,,grant or issue of licences under the Act; and
sub-s. (2)(1) deals with the form of applications for registration and licences
under the Act and the fee, if any, to be paid in respect of any such
applications.
Under the powers conferred by s. 26 the
Central Government framed rules in 1958. For the purposes of the present
petition it would be relevant to refer to rr. 17 to 22.
Rule 17 deals with registration and licensing
of exports;
and it provides that no person shall, after
the coming into force of the rule, export coir fibre, coir yarn or coir
products unless he has been registered as an exporter and has obtained an
export licence under these rules. The proviso deals with exemptions with which
we are not concerned. Rule 18 lays down that any person who has in any of the
three years immediately preceding the commencement of the rules exported not
less than twenty-five tons of coir yarn or coir products other than coir rope,
or exported any quantity of coir fibre or coir rope, may be registered an
exporter of coir yarn, coir products other than coir rope or coir fibre or coir
rope as the case may be. Rule 19 provides for the registration of persons other
than those covered by r. 18 and it lays down inter alia that such persons may
be registered as exporters of coir yarn if, during the period of twelve months
immediately preceding the date of application, a minimum quantity of
twenty-five tons of coir yarn had been rehanked or baled in a factory owned or
otherwise possessed by the applicant and registered under the Indian Factories
Act, 1948, or, if the applicant has had a total purchase turnover of one
hundred tons of coir yarn.
The proviso to this rule authorises the
Chairman by notification to exempt from the operation of this rule any
co-operative society the members of which are owners of industrial
establishments or any Central Co-operative Marketing Society. Rules 20 and 22
prescribe the mode of making an application for registration as an exporter and
for licence respectively while r. 21 provides for the 783 cancellation of
registration. The present petition does not challenge the validity of any of
the provisions of the Act.
It, however, seeks to challenge the vires of
rr. 18, 19, 20(1)(a), 21 and 22(a).
There is no doubt that coir and coir products
play an important role in our national economy. They are commodities which earn
foreign exchange, the total' value of our exports in these commodities being of
the order of Rupees Ten Crores per year. It was found that several malpractices
had crept in the export trade of these commodities such as non-fulfilment of
contracts, supplying goods of inferior qualities and cut-throat competition;
and these in turn considerably -affected the volume of the trade. That is why
Parliament thought it necessary that the Union should take under its control
the coir industry in order to regulate its export trade. It is with the object
of developing the coir industry that the Coir Board has been established and
the registration and licensing of exporters has been introduced. The petitioner
does not dispute this position and makes no grievance or complaint against the
relevant provisions in the Act.
It is, however, urged that the relevant rules
which prescribe the quantitative test for the registration of established
exporters are ultra vires because the introduction of the said test is
inconsistent with the provisions of the Act. In this connection Mr. Pai, for
the petitioner, sought to rely on the report submitted by the Ad-Hoc Committee
for external marketing which the Coir Board had appointed on August 20, 1954.
His grievance is that the report of the said Committee does not recommend the
adoption of the quantitative test, but seems to suggest that a qualitative test
would be more appropriate ; and that, according to Mr. Pai, also indicates that
the quantitative test had been improperly prescribed by the rules. We are not
impressed by these arguments. It is clear that there is no provision in the Act
which excludes or prohibits the application of the quantitative test in making
rules for registration of exporters or for issuing licences for export trade.
In fact the Act has deliberately left it to the rule-making authority to frame
rules 784 which it may regard as appropriate for regulating the trade;
and so it would be impossible to accept the
argument that the rule-making authority was bound to prescribe the qualitative
rather than the quantitative test. Besides, it does not appear that the report
of the Committee on which Mr. pai relied definitely indicated its partiality
for the adoption of the qualitative test. Indeed Appx. XI to the said report
would suggest that the Committee in fact was not averse to the adoption of a
quantitative test; but even if the Committee had expressly recommended the
adoption of a qualitative, not a quantitative, :test, it would be idle to
suggest that the Coir Board was bound to accept the said recommendation or that
the Central Government was not competent to make rules contrary to the
recommendations of the Committee. The validity of the rules can be successfully
challenged if it is shown that they are inconsistent with the provisions of the
Act or that they have been made in excess of the powers conferred on the
rule-making authority by s. 26 of the Act. In our opinion, no such infirmity
has been established in respect of the impugned rules.
It is then contended that the relevant rules
would ultimately tend to establish a monopoly in the export trade of coir
commodities and would thereby extinguish the trade or business of small dealers
like the petitioner. It is also contended that the application of the
quantitative-test discriminates between persons carrying on business on a large
scale and those who carry on business on a small scale. That is how Arts. 19
and 14 of the Constitution are invoked and the validity of the relevant rules
is challenged on the ground that they violate the fundamental rights of the
petitioner under the said Articles. We think there is no substance in this
contention.
If it is conceded that the regulation of the
coir industry is in the public interest, then it would be difficult to
entertain the argument that the regulation or control must be introduced only
on the basis of a qualitative test. It may well be that there are several difficulties
in introducing and effectively enforcing the qualitative test.
It is well-known that granting 785 permits or
licences to export or import dealers on the basis of a quantitative test is not
unknown in regard to export and import of essential commodities. It would
obviously be for the rule-making authority to decide which test would meet the
requirements of public interest and what method would be most expedient in
controlling the industry for the national' good. Beside,%, even the adoption of
a qualitative test may tend to extinguish the trade of those who do not satisfy
the said test; but such a result cannot obviously be treated as contravening
the fundamental rights under Art. 19. Control and regulation of any trade,
though reasonable within the meaning of Art. 19, sub-Art. (6), may in some
cases lead to hardship to some persons carrying on the said trade or business
if they are unable to satisfy the requirements of the regulatory rules or
provisions validly introduced ; but once it is conceded that regulation of the
trade and its control are justified in the public interest, it would not be
open to a person who fails to satisfy the rules or regulations to invoke his
fundamental right under Art. 19(1)(g) and challenge the validity of the regulation
or rule in question. In our opinion, therefore, the challenge to the validity
of the rules on the ground of Art.
19 must fail.
The challenge to the validity of the said
rules on the ground of Art. 14 must also fail, because the classification of
traders made by rr. 18 and 19 is clearly rational and is founded on an
intelligible differentia distinguishing persons falling under one class from
those falling under the other. It is also clear that the differentia has a
rational relation to the object sought to be achieved by the Act. As we have
already pointed out, the export trade in coir commodities disclosed the
existence of many malpractices which not only affected the volume of trade but
also the reputation of Indian traders; and one of the main reasons which led to
this unfortunate result was that exporters sometimes accepted orders far beyond
their capacity and that inevitably led to non-fulfilment of contracts or to
supply of inferior commodities. In 99 786 order to remedy this position the
trade had to be regulated and so the intending exporter was required to satisfy
the test of the prescribed minimum capacity and to establish the prescribed
minimum status before his application for registration is granted. In this
connection it may also be relevant to point out that -the rules seem to
contemplate the granting of exemption from the operation of some of the
relevant tests to co-operative societies; and that shows that the intention of
the Legislature is to encourage small traders to form co-operative societies
and carry on export trade on behalf of such societies; and so it would not be
possible to accept the argument that the impugned rules would lead to a
monopoly in the trade. It is thus clear that the main object which the rules
propose to achieve is to remove the anomalies and malpractices prevailing in
the export trade of coir commodities and to put the said trade on a firm and
enduring basis in the interest of national economy. We are, therefore,
satisfied that the challenge to the impugned rules on the ground of
infringement of Art. 14 of the Constitution must also fail.
In the result we hold that there is no
substance in the petition. It accordingly fails and is dismissed with costs.
Petition dismissed.
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