Chinta Lingam & Ors Vs. Government
of India & Ors [1970] INSC 244 (30 November 1970)
30/11/1970 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
MITTER, G.K.
HEGDE, K.S.
RAY, A.N.
CITATION: 1971 AIR 474 1971 SCR (2) 871 1970
SCC (3) 768
CITATOR INFO :
R 1978 SC 597 (223) R 1979 SC1803 (41) R 1980
SC 962 (13) R 1980 SC1382 (83) F 1981 SC 873 (52)
ACT:
Essential Commodities Act, 1955 (Act 10 of
1955), s. 3(1) and s. 3(2)(d)-Opinion of Central Government under s. 3(1)
whether must be recited in Control Order-Order whether invalid without such
recital--Section 3(2)(d) whether suffers from excessive-delegation-Absence of
provision for appeal or revision against order of District Collector or Deputy
Commissioner of Civil Supplies whether creates unreasonable restriction on the
right to carry on business under Constitution of India, Art. 19(1)(f).
Practice-Plea for which adequate foundation
has not been laid in the pleadings could not be entertained.
HEADNOTE:
The appellants who were adversely affected by
the Rice (Southern Zone) Movement Control Order 1957, the Southern States
(Regulation of Exports of Rice) Order, 1964, and the Andhra Pradesh Rice and
Paddy (Restriction of Movement) Order 1965, moved petitions under Art. 226 of
the Constitution of India in the High Court of Andhra Pradesh challenging the
validity of these orders. The petitions were dismissed by the High Court. In
appeal before this Court by special leave as well as in a writ petition under
Art. 32 of the Constitution the following contentions were advanced before this
Court : (i) The said Control Orders offended Art. 303 of the Constitution in as
much as they suffered from the vice of discrimination between one State and
another and of preference to one State over another;
(ii) the orders were in the nature of
executive instructions and did not fall within the meaning of subordinate
legislation; (iii) even if they could be regarded as subordinate legislation
they could not be saved under s.
303(2) in the absence of the declaration
contemplated thereby; (iv) the requisite opinion of the Central Government
within s. 3(1) of the Essential Supplies Act was not found in any of the
orders; (v) the Control Orders imposed unreasonable restrictions on the right
of the petitioners to carry on trade, as arbitrary powers had been conferred in
the matter of issuing or withholding permits and there were no provisions for
appeal or revision against refusal to grant a permit; (vi) S. 3 (2) (d) suffers
from excessive delegation.
HELD : (i) The first three contentions could
not be entertained since no firm foundation had been laid in respect of them in
the pleadings. [875 G-876 B] (ii)There was no necessity of reciting the
requisite opinion within s. 3 (1) of the Act in the Control Orders.
it is implicit in the recital in the Control
Orders that they were being made under s. 3 of the Act, that the Centrat
Government had formed the requisite opinion within subss. (1) of that section.
[876B-C] (iii)The permit could be granted either by the State Government or by
responsible officers of the rank of the District Collector or the Deputy
Commissioner of Civil Supplies. If the State Government alone 872 had the
powers to issue the permits the challenge on the ground of unreasonableness of
the restrictions would admittedly not be available. There is no bar to any of
the aggrieved parties approaching the State Government by means of a
representation for a final decision even if the matter has been dealt with by
the District Collector or the Deputy Commissioner of Civil Supplies in the
first instance and the permit has been refused or wrongly withheld by those
officers. In these circumstances the absence of a provision for appeal or
revision can be of no consequence. It has been pointed out in more than one
decision of this Court that when the power has to be exercised by one of the
highest officers the fact that, no appeal has been provided for is a matter of
no moment. [876 D-877 B] M/s. Dwarka Prasad Laxmi Narain v. State of Uttar
Pradesh & 2 Ors. [1954] S.C.R. 803, K. L. Gupta v. Bombay Municipal
Corporation & Ors. [1968] 1, S.C.R. 274, 297 and Pannalal Biniraj v. Union
of India, [1957] S.C.R. 233, 257. referred to.
(iv)The question whether s. 3 (2) (d) suffers
from the vice of excessive delegation was no longer at large. In Bhana Mal
Gulzari Mal's case the attack on s. 3 of the Essential Supplies (Temporary
Powers) Act, 1946 which was similar in terms to s. 3 of the Act on the ground
of excessive delegation was repelled. it was held that the Central Government
had been given sufficient and proper guidance for exercising its powers in
effectuating the policy of the statute. [877D-E] Union of India & Ors. v.
M/s. Bhana Mal Gulzari Mal & Ors., [1960] 2 S.C.R. 627, applied.
ORIGINAL JURISDICTION : Writ Petition No. 212
of 1969.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights and Civil Appeals Nos. 1802 to
1805 of 1969.
Appeals by special leave from the judgment
and order dated April 16, 1968 of the Andhra Pradesh High Court in Writ
Petitions Nos. 3657 and 3658 of 1967 and 8 and 48 of 1968.
Shyamala Pappu, Bindra Thakur and Vineet
Kumar, for the petitioners and the appellants.
Jagadish Swarup, Solicitor-General and R. N.
Sachthey, for respondent No. 1 (in all the matters).
P.Ram Reddy and A. V. V. Nair, for
respondents Nos. 2 and 3 (in C.A. No. 1802 of 1969), respondent No. 2 (in C.As.
Nos. 1803 and 1804 of 1969) and respondents Nos. 2 to 4 (in C.A. No. 1805 of
1969).
The Judgment of the Court was delivered by
Grover, J. The points involved in the writ petition and the appeals by special
leave relate to the constitutionality and validity 873 of the provisions of
three Control Orders issued under s. 3 (2) (d) of the Essential Commodities Act
1955 (Act 10 of 1955) hereinafter called the "act.." The validity of
s. 5(2)(d) of the act itself has also been assailed.
The Control Orders which were promulgated
under s. 3(2) (d) of the Act were the following (i) The Rice (Southern
Zone)Movement Control Order, 1957.
(ii)The Southern States (Regulation of
Exports of Rice) Order, 1964; and (iii)The Andhra Pradesh Rice and Paddy
(Restriction of Movement) Order, 1965.
In the a peals the appellants had moved the
High Court of Andhra Pradesh under Art. 226 of the Constitution. There the
petitioner;, were dealers in rice and rice products such as puffed, parched and
beaten rice (beaten rice is known as powa' while, parched and puffed rice is
known as Murmura'). Some of the petitioners had applied for permits to export
powa, murmura and idling from the State of Andhra Pradesh to other States while
others had applied for permits to transport one or other of the rice products
to some places within Andhra Pradesh. The applications for permits were'-either
rejected or were not disposed of by the authorities concerned. In the writ
petitions the High Court examined all the contentions raised exhaustively and
repelled the attack on the constitutionality of s. 3 (2) (d) of the Act as also
the relevant clauses of the Control Orders.
Section 3 of the Act provides (1) If the
Central Government is of opinion that it is necessary or expedient so to do for
maintaining or increasing supplies of any essential commodity or for securing
their equitable distribution and availability at fair prices or for securing any
essential commodity for the defence of India or the efficient conduct of
military operations it may, by order, provide for regulating or prohibiting the
production, supply distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of
the, powers conferred by subsection (1) an order made thereunder may provide(a)....................
(b)....................
874 (c)....................
(d) for regulating by licences, permits or
otherwise the storage, transport, distribution, disposal, acquisition, use or
consumption of, any essential commodity;
The 1957 Control Order extends to the States
of Andhra Pradesh, Kerala, Madras, Mysore and Pondicherry which has been called
the Southern Zone. According to cl. 3(1) no person can export or attempt to
export or abet the export of rice from any place within the Southern Zone
except under and in accordance with a permit issued by the State Government
concerned or any officer authorised in this behalf by that Government subject
to the condition that such export shall be regulated in accordance with the
export quotas fixed by the Central Government. Now this control order made a
division into Southern Zone or regions in the matter of export of rice. By the
Control Order of 1964 the Southern Zone or regions were further divided into
four specified areas i.e., States of Andhra Pradesh, Kerala, Madras and Mysore.
Clause 3 of this order prohibited the export by any person of rice from any
place within a specified area to a place outside that area except under and in
accordance with the permit issued by the State Government or an officer
authorised by that Government in that behalf. The rice was defined by cl. 2(b)
to include broken rice and paddy as also broken rice and paddy products other
than bran or husk. The Control Order of 1965 imposed further restrictions on
the movement of rice and paddy. By, clause 3 restrictions were placed on the
movement of these commodities from any place in any block to any place outside
that block even within the State of Andhra Pradesh.
Mrs. Shyamala Pappu on behalf of the writ
petitioners and the appellants before us made an attempt to raise the following
contentions in respect of the Control Orders :
1.All the three Control Orders offended Art.
303 of the Constitution. They suffered from the vice of discrimination between
one State, and another and of preference to one State over another.
2.These orders were in the nature of
executive Instructions and did not fall within the meaning of subordinate
legislation.
3.Even if the Control Orders could be
regarded as subordnate legislation they were not saved by Art. 303(2) in the
absence of the declaration contemplated thereby, 875 4.The requisite opinion of
the CentralGovernment wit hin s. 3 (1) of the Act was not to be, found in any
of the Orders.
5.The Control Orders imposed unreasonable restrictions
on the right of the petitioners to carry on trade as arbitrary powers had been
conferred in the matter of issuing or withholding permits and there were no provisions
for appeal or revision against refusal to grant a permit.
Art. 301 in Part XIII of the Constitution declare
that subject to the other provisions of this Part trade, commerce and
intercourse throughout the territory of India shall be tree. Under Art. 302
Parliament may by law impose such restrictions on freedom of trade. commerce or
intercourse between one State and another or within any part of the territory
of India as may be required in the public interest. Article 303 reads :"(1)
Notwithstanding anything in article 302, neither Parliament nor the Legislature
of a State shalt have power to make any law giving or authorising" the
giving of, any preference to one State over another, or making, or authorise
the making of, any discrimination between one State and another, by virtue of
any entry relating to trade and commerce in any of the Lists. in the, Seventh
Schedule.
(2) Nothing in clause (1) shall prevent
Parliament from making any law giving, or authorising the giving of, any
preference or making, or authorising the making of, any discrimination if it is
declared by such law that it is necessary to do so or the purpose of dealing
with a situation arising from scarcity of goods in any part of the territory of
India." Now the Control Orders were made under s. 3 of the Act. The object
essentially was to regulate the export and movement of rice and of rice and
paddy products from the Southern States. These Control Orders were laid before
both Houses of Parliament as required by sub-s. (6) of s. 3 of the Act.
It has not been shown how this form of
legislation would be mere executive instruction and would not constitute, law
made by Parliament within the meaning of s. 302. No foundation was laid in the
pleadings either before the High Court or in the writ petition before us as to
how the restrictions which were imposed by the Control Orders were not in the
public interest. It is significant that even on the 876 point of preference to
one State over another or discrimination between one State and another State
there is complete absence of pleading in the writ petition filed before us.
The High Court adverted to the matter but we
have not been shown that any proper or firm foundation was laid in the writ
petitions before the High Court on the question of preference or discrimination
within Art. 303(1).. No argument, therefore, can be entertained on these
matters.
We are unable to see the necessity of
reciting the requisite opinion within s. 3 (1) of the Act in the Control
Orders.
It is implicit in the recital in the Control
Orders that they were being made under s. 3 of the Act that the Central
Government had formed the requisite opinion within sub-s. (1) of that section.
This disposes of the first four contentions.
As regards the 5th point it is noteworthy
that the permit is to be issued by the State Government concerned or any
officer authorised in this behalf by that Government. It is common ground that
the officers authorised by the State Government are the District Collector and
the Deputy Commissioner of Civil Supplies. These officers cannot but be
regarded as fairly high in rank who' are expected to discharge their duties in
a responsible In-Messrs Dwarka Prasad Laxmi Narain v. The State of Uttar
Pradesh & 2 Others (1) in which the provisions of cl. 4(3) of the U.P.
Coal Control Order 1953 which gave the
licensing authority absolute power to grant or refuse to grant any-licence were
struck down on the ground that a law which confers arbitrary and uncontrolled
power upon the executive in the matter of regulating trade or business in
normally available commodities must be held to be unreasonable. There the power
could be exercised by any person to whom the State Coal Controller might choose
to delegate the same. The matter which has been stressed before us relates
generally to the absence of any provision relating to appeal or revision in the
Control Orders if the District Collector or the Deputy Commissioner of Civil
Supplies refuses to grant a permit under clause 3 of the Order. In Dwarka Prasad's(1)
case the delegation could be made to any one which was certainly a relevant
factor in judging the reasonableness of the impugned provision. But in the
cases before us the permit is to be granted either by the State Government or
by responsible officers of the rank of the District Collector or the Deputy
Commissioner of Civil Supplies. Indeed, Mrs. Pappu quite properly agreed that
if the State Government alone had the power to issue the permits the challenge
on the ground of unreasonableness of the restrictions-would not be available.
We consider that there is no bar to any of the aggrieved parties approaching
the State Government by means of a representation (1) [1954] S.C.R. 803.
877 for a final decision even if the matter
has been dealt with by the District Collector or the Deputy Commissioner of
Civil Sup-plies in the first instance and the permit has been refused or
wrongly withheld by these officers. In these circumstances the absence of a
provision for appeal or revision can be of no consequence. At any rate it has
been pointed out in more than one decision of this Court that when the, power
has to be exercised by one of the highest officers the fact that no appeal has
been provided for is a matter of no moment; (See K. L. Gupta v. The Bombay Municipal
Corporation & Ors (1). It may also be remembered that emphasis was laid in
Pannalal Binjraj v. Union of India ( 2 ) on the power being vested not in any
minor official but in top-ranking authority. It was said that though: the power
was discretionary but it was not necessarily discriminatory and abuse of power
could not be easily assumed. There was moreover a presumption that public
officials would discharge their duties honestly and in accordance with rules of
law.
Lastly an effort was made to agitate the
point that s. 3 (2) (d) of the Act suffers from the vice of excessive
delegation. This question is no longer at large. In The Union of India &
Others v. Messrs. Bhana Mal Gulzari Mal & Others(3) the attack on s. 3 of
the Essential Supplies (Temporary Powers) Act 1946 which was similar in terms
to s. 3 of the Act on the ground of excessive delegation was repelled. It was
held that the Central Government had been given sufficient and proper guidance
for exercising its powers in effectuating the policy of the statute.
In the result the writ petition and the
appeals fail and they are dismissed with costs. One set of hearing-fee.
G.C. Appeals dismissed (1) [1968] 1 S.C.R.
274 at p. 297.
(2) (1957) S.C.R. 233 at p. 257 (3) [1960] 2
S.C.R. 627.
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