A.D. Koshal, J.
1. By this judgment I shall dispose of seven petitions under Article 226 of the Constitution of India, viz., Writ Petitions Nos. 3437, 5667, 5732, 7181 and 6963 of 1975 and Writ Petitions Nos. 793 and 795 of 1976, in each of which the petitioner is either firm or an individual carrying on the business of manufacturing and selling varnish within the territorial limits of Tamil Nadu under licences issued in pursuance of the provisions of the Tamil Nadu Denatured Spirit, Methyl Alcohol and Varnish (French Polish) Rules, 1959 (here in after referred to as the Rules) which were framed by the Governor of Tamil Nadu in exercise of the powers conferred on him by, inter alia, the provisions of Section 54 of the Tamil Nadu Prohibition Act, 1937 (here in after referred to as the Act). In the year 1970, Sub-rule (vii) of Rule 9 of the Rules was amended so as to consist of two clauses which read thus:
(vii)(a) Security.-In the Case of applications for a licence in Forms D.L. 1, D.L. 2, D.L. 4, D.L. 5, D.L. 6 or D.L. 8, the licensing authority before granting the licence, shall require the applicant to deposit with the Collector in cash or in Government Promissory Note, as security for the due observance of the conditions of the licence, a sum calculated at the rate of twenty-five paise per bulk litre of the annual quota proposed to be allowed under the licence for denatured spirit and or methylated spirit and/or methyl alcohol, in respect of licences in Forms D.L. 1, D.L. 2, D.L. 4 and D.L. 5 and at the rate of fifty paise per litre of the annual quota of varnish proposed to be allowed under the licence in respect of licences in Forms D.L. 6 and D.L. 8. In the case of an application for a licence in form D.L. 1, from a distillery, however, the security deposit to be required shall be calculated at the rate of five paise per bulk litre of the annual quota of denatured spirit and methylated spirit and methyl alcohol. In the case of non-observance of the terms of the licence, security deposit may be forfeited to Government and the licence cancelled, provided that no forfeiture of deposit shall be made unless the licensee has had a reasonable opportunity of showing cause against such a forfeiture.
(b) The provisions of Clause (a) above shall take effect on or from the Ist April, 1970. In the case of licences already granted as on that date, the security deposit prescribed shall alone be required to be made before the licence is renewed.
No action was taken under Clause (a) till the 31st of March, 1975, when the State Government issued a notification saying that its provisions would be enforced with effect from 1st of April, 1975, and thereafter the petitioners were served with notices calling upon them to deposit security in conformity therewith. The petitioners feel aggrieved by the action of the Government in issuing the notification and demanding security from them and they have therefore invoked the writ jurisdiction of this Court with various prayers to the effect that such action be quashed and the Government directed not to enforce the provisions of Clause (a) above extracted.
2. The case of the petitioners is based on the provisions of Section 22 of the Act which is reproduced below:
Every person taking out any licence or permit under Section 6-A, 18, 19 or 20 may be required to execute a counter part agreement in conformity with the tenor of his licence or permit, and to give such security for the performance of his agreement as the Collector may require.
It is contended that the power to demand security is specifically conferred on the Collector who has also been authorised to determine the amount thereof in each particular case and that the power having been so granted it was not open to the rule-making authority to provide that security shall be furnished by every licensee and that it shall be furnished according to the quantity of the denatured spirit, etc., covered by his licence, and . thus to divest the Collector completely of that power. Before the merits or demerits of this stand can be judged, a preliminary objection raised by the learned Advocate-General has to be disposed of. That objection is to the effect that none of the petitions can be entertained by reason of the order of the President of India(here in after referred to as the Presidential Order) passed on the 8tb of January, 1976, during the operation of a Proclamation of Emergency (here in after called the Proclamation) declaring, in pursuance of the provisions of Clause (1) of Article 359 of the Constitution of India, that the right of any person to move any Court for the enforcement of the rights conferred by Article 19 thereof and all proceedings pending in any Court for the enforcement of such rights shall remain suspended for the period during which the Proclamation is in force. That clause states:
Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is inforce or for such shorter period as may be specified in the order.
This clause has been interpreted by their Lordships of the Supreme Court in A.D M., Jabalpur v. S. Shukla : 1976CriLJ945 , to furnish a bar at the threshold to any petition seeking enforcement of a right conferred by Part III of the Constitution and mentioned in an order passed under the clause by the President. It follows that if any of the petitioners before me seeks to enforce a right under Article 19 of the Constitution it cannot be entertained. It was in this view of the matter that the stand taken on behalf of the petitioners at an earlier stage of the arguments to the effect that they were seeking the enforcement of the fundamental right of trade guaranteed to them under Clause (g) of Article 19 of the Constitution of India was not seriously pressed and the submission thereafter made was that they were not seeking the enforcement of any fundamental right and that on the other hand what they demanded was the enforcement of a positive legal right flowing to them from specific legislation in the form of Section 22 of the Act. That a distinction has to be made between a fundamental right and a legal right of the type above mentioned was recognised in unmistakable terms in Shukla' s case 1, itself. In that case, certain persons had been detained under orders purporting to have been passed in pursuance of the provisions of the Maintenance of Internal Security Act. They challenged their detention on the ground that it had been ordered in violation of those provisions. The petitions filed by them were dismissed by Ray, CJ., Beg, Chandrachud and Bhagwati, JJ., (Khanna, J., dissenting) holding that what was sought to be enforced thereby was the fundamental right to personal liberty guaranteed by Article 2l of the Constitution which found mention in an order of the President dated the 27th of June, 975 promulgated under Clause (1) of Article 359. During the course of agruments in that case reliance on behalf of the detenus was placed on State of Madhya Pradesh v. Thakur Bharat Singh : 2SCR454 , in which an order prohibiting a petitioner from residing in a specific area under Section 2(1)(b) of the Madhya Pradesh Public Security Act, 1959, which was found to be void because the provision infringed Article 19 of the Constitution was held to be challengeable during an Emergency despite the provisions of Article 358 of the Constitution on, the ground that although the empowering provision could not have been challenged if it was contained in an enactment promulgated during the Emergency yet, as it was made by an Act passed at a time when Article 19 was operative, the invalidity of the provision could be demonstrated despite the existence of the Emergency. Dealing with that case, Beg, J., observed:
I do not think that there is any such case before us. It seems to me to be possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right.
3. Bhagwati, J., dealt with this aspect of the matter at great length and his Lord ship's observations on the point which are contained in paragraphs 552 to 555 of the report are reproduced below:
It will be clear from what is stated above that whilst a Presidential Order issued under Article 359, Clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential Order. This would be obvious if we consider what would be the position under the criminal law. If the executive detains a person contary to law or shoots him deed without justifying circumstances, it would clearly be an offence of wrongful confinement in one case and murder in the other, punishable under the relevant provisions of the Indian Penal Code, unless the case falls within the protective mantle of Section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted, if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution. The Presidential Order suspending the enforcement of Article 2l would not bar such a prosecution and the remedy under the Indian Penal Code would be very much available. The offence of wrongful confinement or murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender. When a person takes proceeding under the Code of Criminal Procedure in connection with the Offence of wrongful confinement or murder or launches a prosecution for such offence, he cannot be said to be enforcing the fundamental right of the detenue or the murdered men under Article 21 so as to attract the inhibition of the Presidential Order.
So also, if a positive legal right is conferred on a person by legislation and he seeks to enforce it in a Court, it would not be within the inhibition of a Presidential Order issued under Article 359, Clause (1). Take for example the class of cases of detention where no declaration has been made under Sub-sections (2 and(3) of Section 16-A. This category would cover cases where orders of detention have been passed prior to 25th June, 1975, because in such cases no declaration under Sub-section (2) or (3) of Section 16-A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June, 1975 without a declaration under Sub-section (2) or Sub-section (3) of Section 16-A. Sections 8 to 12 would continue to apply in-such cases and consequently the detaining authority would be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu, the State Government would be bound to revoke the detention order and release the detenu. That is the plain requirement of Sub-section (2) of Section 12. Now, suppose that in such a case the State Government fails to revoke the detention order and release the detenu in breach of its statutory obligation under Sub-section (2) of Section 12. Can the detenu not enforce this statutory obligation by filing a petition for a writ of mandamus? The answer must obviously be he can. When he files such a petition for a writ of mandamus, he world be enforcing his statutory right under Sub-section (2) of Section 12 and the enforcement of such statutory right would not be barred by the Presidential Order specifying Article 21. The Presidential Order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty.
I may also refer by way of another illustration to Section 57 of the Code of Criminal Procedure, 1973. This section provides that no police officer shall retain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not in the absence of a special order of a magistrate under Section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate's Court. There is clearly a legal injunction enacted by this section requiring a police officer not to detain an arrested person in custody for a period longer than 24 hours without obtaining a special order of a magistrate and to release him on the expiration of such period of 24hours, if in the meantime such special order is not obtained. If, in a given case an arrested person is detained in custody by the police officer for a period longer than 24 hours without obtaining an order of a magistrate, can he not apply to the magistrate that he should be directed to be released by the police officer under Section 57? Would such an application be barred by a Presidential order specifying Article 21? I do not think so. When the arrested person makes such an application, he seeks to enforce a statutory obligation imposed on the police officer and statutory rights created in his favour by Section 57 and that would not be barred, because what is suspended by a Presidential Order specifying Article 21 is the right to move the Court for enforcement of the fundamental right conferred by that Article and not the right to move the Court for enforcement of the statutory right to be released granted under Section 57.
I may take still another example to illustrate the point I am making. Take a case where an order of detention has been made without a declaration under Sub-section (2) or Sub-section (3) of Section 16-A. Sections 8 to 12 would admittedly apply in such a case and under Section 8, the detaining authority would be bound to communicate to the detenu the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate Government. If, in a given case, the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation, in violation of the statutory right conferred on him under Section 8, can the detenu not enforce this statutory right by filing a petition for a writ of mandamus against the detaining authority? World it be any answer to such an application that the enforcement of the fundamental right conferred by Article 22, Clause (5) has been suspended by the Presidential Order? The answer is plainly: No. There are two rights which the detenu has in this connection one is the fundamental right conferred by Article 22, Clause (5) and the other is the statutory right conferred by Section 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced.
These observations leave no room for doubt that when a person seeks to challenge an infraction of a positive statutory provision he is not asking for the enforcement of a fundamental right eventhough the content of the two be the same. And if that be so, the objection raised by the learned Advocate-General cannot be sustained. What the petitioners pray for in the petitions before me is that the action of the respondents in demanding security under a rule which runs counter to Section 22 of the Act be struck down on the ground of patent illegality which cannot be equated with an attempt to enforce a fundamental right even though the fields in which Section 22 of the Act and the fundamental right of trade operate are overlapping. The continuance of the Proclamation and of the Presidential Order therefore does not stand in the way of the entertainment of the petitions before me, and the objection to the contrary is overruled.
4. On the merits the petitioners have an unanswerable case. Section 22 of the Act having laid down the manner in which security must be demanded and furnished the rule-making authority can not frame any rule which prescribes a different manner in that behalf. As pointed out by learned Counsel for the petitioner, the question of demanding security in a particular case and of its amount is left by the section entirely to the Collector so that no rule can prescribe that security shall be furnished in all cases, that it shall be furnished at a particular rate based on the quantity of the commodity covered by the licence in each case and that the Collector would nave nothing to-do with these matters. Clause (vii) of Rule 9 of the Rules therefore is ultra vires of Section 22 of the Act and any action taken in pursuance of it must be held to be illegal.
5. In the result, all the petitions succeed and are accepted. The notification issued by the Government of Tamil Nadu on the 31st March, 1975, is held to be of no effect and the Government and its concerned authorities, who are the respondents before me, are directed not to implement the provisions of the impugned clause. The parties are however left to bear their own costs.