1. This revision application is filed by accused Haji Usman who has been convicted of anoffence under Section 46 (a) of the Ayat Niryat Kar Vidhan, Samvat 2006 read with Madhya Bharat Government Notification No. 7 dated 14th August, 1948 and sentenced to suffer imprisonment till rising of the Court and to pay a fine of Rs. 500/-. The facts giving rise to this petition are briefly stated as follows :
2. On 2-11-1950 the petitioner despatched from his shop at Dewas 309 tins of groundnut seed oil for being exported to the then Bhopal State. The truck in which these tins were being carried was checked a little aheadof Daulatpur Custom Post in the territory of Madhya Bharat and as export of this oil from Madhya Bharat was then prohibited, the tins were seized and the accused-petitioner was prosecuted before the Sub-Divisional Magistrate First Class, Sonkatch.
3. The accused denied having committed any offence but the learned Magistrate found Mm guilty and sentenced him to suffer imprisonment and to pay fine as stated above. Aggrieved by his conviction and sentence the accused preferred an appeal which was rejected by the Additional Sessions Judge,Dewas. He has now preferred this revision application to the High Court.
4. The main contention raised by Mr. Malgawa, learned counsel lor the petitioner is that the Notification No. 7 dated 14th August, 1948 constituted an invasion on the right conferred on a citizen by Article 19(1)(g) of the Constitution and was therefore void and inoperative with effect from January 26, 1950. He also contended that the said notification contravened Article 301 of the Constitution and was bad and ineffective on that ground also.
5. The revision application was initially heard by Newaskar J. and was referred by him to a Division Bench, as it involved substantial questions as to the interpretation of the Constitution. The revision application was therefore heard by this Bench.
6. Two questions arise for consideration on the contentions put forwaid by the learned Counsel for the petitioner. Those are :
(i) whether Notification No. 7 dated 14th August, 1948 which was issued under Section 9 of the Customs Regulation Ordinance No. 8 of1948, continued to be in force upto the date of the offence i.e. upto 2nd November, 1950; and
(ii) whether the provisions of this notification and the law under which it was issued is in conflict with Article 19(1)(g) or Article 301 oi the Constitution and has become void with effect from 26th January, 1950. I shall deal with both these points in the order in which they are set out.
7. It is a matter of common knowledge that the State of Madhya Bharat was formed of 22 Covenanting States. All these States had their own customs laws. On the formation of Madhya Bharat all the laws including laws relating to customs and excise were kept alive by Ordinance No. 1 of 1948. On 14th August, 1948 the customs laws in force in different covenanting States were repealed and were replaced by Ordinance No. 8 of 1948 which is known as the United States of Gwalior. Indore and Malwa (Madhya Bharat) Customs Regulation Ordinance Samvat 2005.
By Section 9 of this ordinance powers were conferred on the Government to exempt any commodity from import or export duty, to levy import or export duty on any commodity on which no import or export duty had been levied, to increase or to decrease the import or export duty already levied, to prohibit import and export of any commodity and to promulgate rules or regulations for the due compliance of the provisions of the ordinance.
8. In exercise of the powers conferred by this section the State Government issued Notification No. 7 dated 14th August. 1948 and thereby banned the export of certain commodities which amongst other things included oil seed and groundnut seed oil.
9. The Ordinance No. 8 was repealed by Act No. 16 (Customs Regulation Act Samvat 2005). The provisions of this Act were similar to those of Ordinance No. 8. Section 10 of the Act provided that all orders given or actions taken under the said ordinance shall be deem-ed to have been given or taken as the case may be, under this Act.
10. Act No. 16 was in its turn repealed by ACT no. 47 OF 1949 (Ayat Niryat Kar Vidhan, Samvat 2006) which continued to be the law in force with certain modifications and amendments upto 2-11-1930. Section 3 of this Act conferred on the Government powers similar to those conferred upon it by Section 9 of the Ordinance and of Act No. 16 of 1949. Section 106 of the Act provided that all orders issued, appointments made, actions taken, rules framed, shall be deemed to have been issued, made, taken or framed under this Act so far as they could be lawfully issued, made, taken or framed, under the provisions of this Act.
Section 106 of Act No. 47 of 1949 was thus intended to preserve all notifications issued under the repealed laws and these were to be deemed to have been issued under the provisions of this Act if they were such as could have been lawfully issued by the Government in exercise of the powers conferred upon it under the Act.
11. The powers conferred on the Government by Section 9 of the Ordinance No. 8 were preserved under Section 9 of Act No. 16 of 1949. Similar powers were conferred by Section 3 of Act No. 47 of 1949. The Government oi Madhya Bharat were therefore duly empowered on the date that Act come into force, that is, on 15th August, 1949, to prohibit export of any commodity from the State of Madhya Bharat to any place outside that State and to ban the import of any commodity to Madhya Bharat from any place outside.
The Government had thus the power to ban the export of oil from Madhya Bharat and could have done so by issuing a notification similar to. Notification No. 7 of 1948. The impugned notification must therefore be deemed to have been issued under the provisions ot Section 3 of Act No. 47 of 1949.
12. Mr. Malgawa, learned counsel for the petitioner also did not challenge this position. It must therefore be held that Notification No. 7 of 1948 continued to remain in force upto 2nd November, 1950, that is, the date of the offence.
13. On the second question Mr. Malgawa conceded that the impugned notification when it was issued during the year 1948, was valid. But he contended that it became inoperative with effect from 26th January, 1950 as the ban on export of oil imposed by it constituted an interference with petitioner's right to carry on business in that commodity.
The learned counsel argued that if by the said notification the Government had banned the export of oil for a limited period or during the period of certain emergency, the notification could have been supported on the ground that it constituted a reasonable restriction on the right conferred upon a citizen by Article 19(1)(g) of the Constitution. He went on to argue that the ban imposed by the notification was total and absolute and affected the peti-tioner's right to carry on trade or business in on aud was therefore inoperative aiter tne Constitution came into force.
In support of this contention Mr. Malgawa relied upon the decision of the Supreme Court in Chintamarao v. State of M. P., AIR 1951 SC 118 (A). The learned counsel also relied upon the provisions of Article 301 of the Constitution and complained that the total ban on export of oil constituted an undue interference with the freedom of trade, commerce and intercourse throughout the territory of India.
14. In reply Mr. Patel, learned Deputy Government Advocate contended that Article 19(1)(g) had no application to this case and the petitioners grievance that there was interference witn his fundamental right to carry on any trade or business was not at all well founded. He submitted that the petitioner was free to deal in oil within the State of Madhya Bharat and was also free to import oil from outsiae the State.
He further submitted that the complaint of the petitioner may well have been that mere was a contravention of Article 301; but the impugned notification and Act No. 47 of 1949 being existing laws within the definition of Article 366, were expressly saved under the provisions of Article 305. The learned counsel submitted that for this reason the petitioner could not be heard to say that the freedom of trade, commerce and intercourse dealt with by Article 301 was affected in the present case.
15. This argument involves an examination of the nature of the right conferred upon a citizen by Article 19(1)(g) and the freedom of trade, commerce and intercourse dealt with in Article 301. Apparently the two provisions of the Constitution seem to be overlapping but it cannot be imagined that the framers of the Constitution intended to enact two separate provisions to deal with the same subject matter.
16. The point is not free from difficulty. The weight of the authorities however seems to be in favour ol the view that Article 19(1)(g) and Part XIII of the Constitution are enacted for different purposes, Article 19(1)(g) deals with the rights of individual citizen to practise any profession, trade or business whereas Article 301 and the other provisions of Part XIII are enacted for the purpose of regulating trade, commerce and intercourse generally.
In course of this regulation of trade, commerce and intercourse the State is empowered to levy taxes on goods and to prohibit the movement of goods from one State to another or from one place to another within the same State. In Moti Lal v. Uttar Pradesh Government, AIR 1951 All 257 (FB) (B), Malik C. J. observed as follows :
'The correct interpretation seems to bethat Article 19 lays down the rights of the citizen while Article 301 deals with how the trade, commerce and intercourse is to be carried on between one place and another, whether the two places are situated in two States or are inside the same State.'
17. In the same case Agarwala J. at page 323 expressed his opinion as regards the scope of Article 19(1)(g) as follows :
'Article 301 is, if anything, wider than Section 92 inasmuch as it secures freedom of movement not only inter-State but throughout the territory of India. While Article 301 contemplates the right of trade, business or intercourse, in motion, Article 19(1)(g) secures the right of occupation, trade or business at rest. To the extent that a business may consist of an activity of movement from one place to another, it is covered by both Articles and in that respect they overlap.'
18. The scope and the application Article 19(1)(g) and Article 301 again came up for examination before the High Court of Allahabad in Saghir Ahmad v. State Govt. of U. P., AIR 1954 All 257 (C). That was a case in which validity oi the U. P. State Road Transport Act which was enacted by the Uttar Pradesh State Legislature and by which a monopolistic right on the highways was conferred upon the State-owned buses, was challenged by the petitioner Saghir Ahmad by an application made to the High Court under Article 226 of the Constitution on the ground that the impugned Act was an invasion of the fundamental right guaranteed to the citizen by Article 19(1)(g), and further, that it conflicted with the freedom of inter-State and intra-State trade, commerce and intercourse conferred by Article 301 of the Constitution. Both these contentions were overruled and the petition was rejected by the High Court. In course of his judgment Mukerji J. dealt with the provisions of Article 19(1)(g) and Article 301 and observed as follows :
'Article 19(1)(g) of the Constitution gives protection to an individual to the extent that he can practise any profession, or carry on any occupation, trade or business. Article 301 more or less is complementary to this general provision contained in Article 19(1)(g) inasmuch as Article 301 gives a kind of territorial protection to trade, commerce and intercourse, a protection which incidentally enures to the benefit of those who engage in trade, business and commerce or carry on intercourse of the type visualised under this Article.
The protection which Article 301 contemplates is what may be termed, in the words of Agarwala J. in the Full Bench case of Motilal, AIR 1951 All 257 (B), 'trade in motion' so that the restriction has to be, when it is being judged, restriction on the flow of goods as such, and not in the flow of goods through the agency or medium of any particular individual or group of individuals.'
19. In the same case Chaturvedi J. at pages 287-288 dealt with the argument that the U. P. State Road Transport Act of 1950 contravened the provisions of Article 301 of the Constitution. The learned Judge repelled this argument. He stated :
'I am unable to accept this argument because, in my opinion, what the Article safeguards is the carrying on of the trade as dis-tinguished from the right of any individual to carry it on. Article 19(1)(g) and Article 301 have been framed in order to secure two different objects. Article 19(1)(g) refers to the individual rights and Article 301 refers to trade as a whole and not be to the right of any individual.
What Article 301 prohibits is interference with trade as such, though it sometimes happens that the number of individuals restricted may indicate that what was meant to prohibit was the trade itself, though prohibition was purported to be imposed against individuals only. But where ample provision is made ior carrying on the trade and the trade would continue to flow as before, the fact that certain individuals have been prohibited from taking part in it would not, in any way, go to contravene the provisions of Article 301.
Article 301 safeguards the right of a community to see that the trade between the different parts of India is not hampered in any manner. I do not think that the provisions of Articles 19(1)(g) and 301 overlap and are both meant to safeguard the rights of the individual trader, as had been contended for by the learned counsel for the petitioners.'
20. An appeal was taken to the Supreme Court against the decision of the High Court. The appeal was allowed and the impugned Act was declared to be unconstitutional on the ground that it violated the fundamental right of the appellant under Article 19(1)(g) of the Constitution and was not shown to be protected by Clause (6) of the Article as it stood at the time of the enactment.
21. In Saghir Ahmad v. State of U. P., AIR 1954 S. C. 728 (D), the question of the applicability of Article 19(1)(g) to cases where what was prohibited was goods or persons, was argued before the Supreme Court; but it was not finally decided by their Lordships. The contention that the provisions of the impugned Act conflicted with the guarantee of freedom of inter-State and intra-State trade, commerce and intercourse dealt with by Article 301 of the Constitution was also pressed during the course of arguments and it was urged that Article 301 of the Constitution provided safeguard for carrying on trade as a whole as distinct from the right of an individual to carry it on.
In others words, the respondents contended that this Article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce or trade. It was said that the right of the individuals is dealt with under Article 19(1)(g) of the Constitution and the two articles, namely, Article 19(1)(g) and Article 301 had been framed to secure different objects. Their Lordships felt that the question was not free from difficulty but did not decide it.
22. Referring to the Australian case, Commonwealth of Australia v. Bank of New South Wales, 1949-2 All ER 755 (E) in whichit is held that the rights of individuals come within the purview of Section 92 of the Australian Constitution, their Lordships of the Supreme Court pointed out that in the Australian Constitution there was no provision similar to Article 19(1)(g) of the Indian Constition. B. K. Mukherjea J. (as he then was) with whom other learned Judges agreed observed in Para 33 of the Judgment as follows:--
'The Australian Constitution indeed has no provision like Article 19(1)(g) of the Indian Constitution and it is certainly an arguable point as to whether the rights oi individuals alone are dealt with in Article 19(1)(g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression only the free passage of persons and goods, within or without a State to be dealt with under Article 301 and the following articles.'
23. A similar question came up for consideration before the High Court of Bombay in Bapubhai v. State of Bombay, (S) AIR 1956 Bombay 21 (F). That was a case in which the Government of Bombay had applied the Agricultural Produce Markets Act (22 of 1939) to Sangli alter its merger, and with effect from 20-7-1948. The result of the application of this Act was that agricultural produce could only be bought and sold under certain conditions and limitations.
After the application of the Act an agricultural Market Committee was formed at Sangli and that committee by its resolution decided that the existing market place was not suitable for market and resolved to shift it. It also requested the Government to acquire another place for the purpose of establishing a market. The Government accepted the request and acquired a piece of land and the market was shifted there.
24. The petitioner was owner of extensive property at the old market place and derived considerable income by letting it out. He complained that his fundamental right was affected by the prohibition of the use of old market place for the purpose of the business. As the complaint was not listened to by the State Government he challenged the validity of the Act itself before the High Court on the ground that the Act constituted an invasion of his fundamental right to carry on business under Article 19(1)(g) and Article 301 of the Constitution. Article 304(b) of the Constitution was also invoked by the petitioner.
25. These contentions were repelled.Dealing with Article 304(b) the learned ChiefJustice observed:
'Article 304(b) appears in Part XIII which is a self-contained Part in the Constitution dealing with trade, commerce and intercouse within the territory of India. The question as to whether an individual can assert his fundamental right to carry on business without restrictions under Article 304(b) was canvassed before the Supreme Court in AIR 1954 SC 728 (D), but the Supreme Court did not decide the question. It seems to us, looking to the language used in Part XIII 'trade, commerce andintercourse within the territory of India' that that Part essentially deals with the free passage of persons and goods throughout the territory of India.
What is emphasised is the freedom of trade, and not the freedom of the individual to carry on his business......
As we understand trade, commerce or intercourse, it must imply the passage of goods within the State or passage of persons within the State.....
It may also be pointed out and that is an argument which has been noticed by the Supreme Court that the Australian decisions bearing on the subject are not In 'pari materia', because the Australian Constitution does not contain any provisions corresponding to Article 19(1)(g).
Therefore, when we compare Article 19(1)(g) with the provisions of Part XIII, the scheme of the Constitution becomes apparent. Article 19(1) provides for rights oi individual citizens. Part XIII deals with trade and commerce as such which as has been pointed out means the free passage of goods.
It may undoubtedly be that if an individual is prevented from sending his goods across the State, or even if he is prevented from sending his goods from one part of the State to another he may come to Court and complain of an infringement of Article 301 read with Article 304(b).
But when the complaint is with regard to the right of an individual to carry on business unrelated to the question of passage of goods or irrespective of the question of the passage of goods, then the proper article which he can invoke is Article 19(1)(g) and not the provisions of Article 301 read with Article 304(b). As in this case there is no question of restriction of passage of goods, the challenge made under Article 301 read with Article 304(b) in our opinion is not sustainable.'
26. The decision of the Bombay High Court support the view that Article 19(1)(g) and Article 301 were enacted for different purposes. According to the learned Judges Article 19(1)(g) could be invoked when the complaint is with regard to the right of an individual to carry on business unrelated to the question of the passage of goods or irrespective of the question of the passage of goods.
But if the individual was prevented from sending his goods across the State or even if he was prevented from sending his goods from one part of the State to another, he could come to the Court and complain of an infringement of Article 301 read with Article 304(b). This view is in lino with the opinion expressed by the High Court of Allahabad and some observations of the Supreme Court in Saghir Ahmad's case (D), referred to above.
27. In the present case the petitioner has not been prevented from dealing in oil in Madhya Bharat or from importing it in any quantity he liked. His complaint is that he is not being allowed to carry it to a place outside. The grievance of the petitioner thusis that his right to trade in relation to the movement or passage of goods is affected by the impugned notification.
28. I am of opinion that Article 19(1)(g) does not apply to the case of the petitioner because what is complained of by him is the infringement of his right in relation to the movement of oil across the borders of the state. Assuming however that the article applies the next question that arises for consideration is, whether the restriction imposed is a reasonable restriction.
29. Mr. Malgawa, learned Counsel for the petitioner conceded that it was open to the State to impose reasonable restrictions on the right guaranteed by Article 19(1)(g) of the Constitution and also to make laws to regulate trade, commerce and intercourse within the territories of India. But he submitted that prohibition was not the same thing as restriction or regulation.
His contention was that by the impugned notification export of oil is prohibited for an indefinite period and hence it cannot be regarded as a reasonable restriction within the meaning of Article 19(6) or a measure adopted for regulating trade, commerce and intercourse.
30. In 1949-2 All ER 755 (E), the Privy Council considered the provisions of Section 92 of the Australian Constitution which is similar to Article 301 of the Constitution of India. Their Lordships held that simple prohibition is not regulation of trade, commerce and intercourse, but further observed as follows:--
'Yet about this, as about every other proposition in this field, a reservation must be made, for their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency, or in some other body, be justified.
Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation and that inter-State 'trade, commerce and intercourse' thus prohibited and thus monopolised remained absolutely free.
Nor can one further aspect of prohibition be ignored. It was urged by the appellants that prohibitory measures must be permissible, for otherwise lunatics, infants and bankrupts could without restraint embark on inter-State trade and diseased cattle or noxious drugs could freely be taken across State frontiers.
Their Lordships must, therefore, add what, but for this argument so strenuously urged, they would have thought it unnecessary to add, that regulation of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform them or of excluding from passage across the frontier of a State creatures or things calculated to injureits citizens. Here again, a question of fact and degree is involved.....'
31. The Privy Council have thus indicated that 'prohibition' may under certain circumstances amount to regulation of trade, commerce and intercourse or restricting upon trade, commerce and intercourse. Every case must be judged on its own facts.
32. In AIR 1954 SC 728 (D), it was urged before the Supreme Court that restriction and prohibition or extinction were not the same thing. It was observed by B. K. Mukherjea, J., in that case that the normal use of the word 'restriction' seems to be in the cause of limitation and not extinction. No final opinion was however expressed on the point raised.
33. In the present case, it is significant te note that there is no general prohibition on export of commodities, but the prohibition is confined to cattle and certain commodities. The petitioner is free to deal in all other commodities and to carry on business of import and export in all of them. He is also free to deal in oil in the territories of Madhya Bharat and to import oil in any quantity he likes and to dispose it of within the State. What is prohibited is export of oil and that too in the interest of consumers in the State and to oust conditions created by the scarcity or non-availability of that commodity in sufficient quantity in the State.
34. The present case is materially different from AIR 1951 SC 118 (A). In that case the State of Madhya Pradesh enacted a law known as the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act of 1948 and that Act was the law in force in that State at the commencement of the Constitution. Certain provisions in that Act empowered the Commissioner by a notification to fix a period to be an agricultural season with respect to such villages as may be specified therein.
The effect of the notification was to be that every person residing in the village specified in the notification was during the agricultural season prohibited from engaging himself in the manufacture of bidis. In exercise of this power the Deputy Commissioner of Sagor issued an order in June 1950 and thereby forbade all persons residing in certain villages from engaging in the manufacture of bidis. Validity of this order was challenged before the Supreme Court under Article 32 of the Constitution by the petitioners who were directly affected by the order. The petition was allowed and it was held that -
'The statute as it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provisions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the applicants and that being so, the statute is not in conformity with the provisions Of Part III of the Constitution.
The law even to the extent that it could be said to authorise the imposition of restriction in regard to agricultuial labour cannot be held valid because tne language employed is Wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right.'
35. Thus the ground on which the order Of the Deputy Commissioner was held void was that in effect it deprived not only persons who were connected with agricultural operations but also those who were incapable of attending to agriculture, from engaging themselves in the manufacture of bidis. The other ground On which the challenge to the validity of the order was upheld was that it exceeded constitutional limitations inasmuch as it directly prevented a citizen from practising any profession or carrying on any occupation, trade or business. But that is not so in the present case. In this case there is no such general ban and the transactions in oil are only prohibited to the extent they involve transport of that Commodity to other States.
36. I am therefore of opinion that Chin-tamrao v. State of M. P. (A), has no application to the facts of the present case.
37. In order to determine the reasonableness of restrictions, regard must be had to the nature of the business and conditions prevailing in that trade. Edible oils were at the material time treated as food stuffs and were listed as essential commodities under the provisions of Section 2 of the Essential Supplies (Temporary Powers) Act, 1946. The State therefore had the right not only to restrict but even to prohibit transactions in oils. (See Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634 (G)).
38. The petitioners had also not raised the question of the reasonableness of the restrictions imposed by the impugned notification in either of the two lower Courts. He has raised the question for the first time in revision in the High Court and the contention of Mr. Patel, learned counsel for the opponent that the prosecution had no opportunity to explain the circumstances under which the ban on the export of food-stuffs came to be imposed, is not quite without force.
39. Considering these circumstances I am of opinion that the petitioner's grievance that by the impugned notification his fundamental right was invaded cannot be upheld.
40. The next point to be considered is, whether the impugned notification is unconstitutional and ultra vires because it is in conflict with Article 301 of the Constitution of India.
41. Article 301 is one of those articles which are contained in Part XIII of the Constitution which deals with trade, commerce and intercourse throughout the territory of India. The petitioner could have lawfully complained that the freedom conferred by Article 301 was affected by the impugned notification by whichthe movement of certain commodities from the State of Madhya Bharat to a place outside was completely banned. Part XIII of the Constitution is however a self-contained part and the rignt conferred by Article 301 itself is subject to the other provisions of this part. Article 301 for this reason does not confer an absolute and unfettered right.
42. Article 302 confers powers on the Parliament to make laws and thereby impose reasonable restrictions on trade, commerce or intercourse witnin the territory of India. Article 304 similarly confers powers on tne Legislature of a State to impose similar restrictions on trade, commerce or intercourse among States subject to the condition that no bill or amendment for this purpose shall be introduced or moved in the Legislature oi the State without the previous sanction of the President.
Article 305 which contains an overriding provision specifically lays down that nothing in Articles 301 and 303 snail affect the provision of any existing law except in so far as the President may by an order other wise direct. No direction under Article 305 was issued upto the material date by the President of India.
43. The Ayat Niryat Kar Vidhan Act No. 47 of 1949 was brought into force on 15th August 1949, i.e., prior to the Constitution and was on 26th January 1950, an existing law. The same thing may be said about Notification No. 7 dated 14-8-1948 for reasons already stated. The impugned notification and the provisions of Act No. 47 of 1949 being an existing law within the meaning of Article 366, were not only preserved by Article 372 but are further saved by Article 305 notwithstanding that they are in conflict with Article 301 of the Constitution. In view of these facts, the petitioner's complaint that the impugned notification offends against the provisions of Article 301 also cannotl for this reason be entertained.
44. None of the contentions raised by the petitioner can prevail. The petition must therefore fail and is hereby dismissed.
I agree and have nothing to add.