1. This is a petition under Article 226 of the Constitution by Messrs. Hazari Lal Bhanna Mal, a firm of cloth merchants at Chamba, for the issue of suitable writs and directions to the respondents, the State of Himachal Pradesh, the District Civil Supplies Officer Chamba, the District Magistrate Chamba and the Director of Civil Supplies Himachal Pradesh, for the enforcement of the fundamental right of carrying on its cloth business, guaranteed by Article 19(1)(g), which is alleged to have been not only unreasonably restricted but totally prohibited by the respondents.
2. The impugned acts of the respondents relate to control of supply and distribution of cloth. The relevant controlling law may therefore be briefly set forth, to begin with. The main enactment, hereinafter referred to as the Act, is the Essential Supplies (Temporary Powers) Act, 1946, and it is in force in Himachal Pradesh. In exercise of the powers conferred by Section 3 of that Act, as delegated to him by the Central Government under Section 4 by means of the Ministry of Industry and Supply Notification No. 90/20-Tex. 1/48(1), dated 16-10-1948, the Chief Commissioner of Himachal Pradesh made three orders in relation to cloth, that being one of the essential commodities covered by the Act. These were the Himachal Pradesh Cloth Distribution Order, 1948, the Himachal Pradesh Cotton Cloth Dealers Licencing Order, 1948, and the Himachal Pradesh Cotton Cloth and Yarn (Regulation of Movements) Order, 1948, all of which came into force on 15-12-1948.
3. The requisite control is exercised in three ways by means of these Orders. Under the Licencing Order sale of certain kinds of cotton cloth is prohibited except under and in accordance with the conditions of a licence granted under the Order on payment of a certain fee, which is either a wholesale dealer's licence or a retail dealer's licence. Under the Distribution Order the maximum wholesale and retail prices are fixed and a person or class of persons or the public generally can be prohibited from obtaining cloth except under, and upto the maximum quantity mentioned in, a 'distribution document'. Under the Movements Order both inter-State and intra-State movement of cloth can be prohibited except under a permit issued by a permit issuing authority. For purposes of this case only the other two Orders are relevant.
4. The Government of India's scheme of distribution of cloth has been that controlled cloth manufactured by the mills is placed under the control of the Textile Commissioner, each State is allotted a quota, and, under orders of release issued by the Textile Commissioner, that quota is lifted by the nominee of the State. The lifted quota would then be passed on to the wholesale dealer, who might himself be the nominee, and then get distributed to the consumers through the retail dealers.
5. The petitioner firm has been doing cloth business at Chamba for about 20 years, and, on the coming into force of the said Orders, it obtained a retail dealer's licence under the Licencing Order on 1-1-1949 which was renewed annually twice, the last renewal being from 1-1-1951 to 31-12-1951. Before the expiry of the last renewal, however, the petitioner firm and the other retail licence-holders were informed by the District Civil Supplies Officer Chamba that the work of distribution of cloth had been transferred to co-operative societies, and that, therefore, in future they will not be permitted to do business unless they joined one of the existing co-operative societies or formed one in accordance with the law.
6. The above prohibition for the future was conveyed to the petitioner and the other retail licence-holders in pursuance of certain rules framed by the Chief Commissioner, a copy of which has been filed by the respondents. They are superscribed as 'Rules in connection with the distribution of Controlled Articles by Co-operative Societies', but described in the opening paragraph, which is a sort of a preamble, as 'directives till further orders.' The opening paragraph, or preamble, also mentions that the directives had been approved by the Chief Commissioner 'in consequence of the transfer of work pertaining to the distribution of controlled articles to co-operative societies.' These rules, or directives, are sub-divided under three headings, Distribution, Price-fixation and Check, with a Note appended at the end that the Chief Commissioner expected all Deputy Commissioners to exercise due vigilance in the prompt compliance with the directives. The gist of provisions relevant for purposes of the present case, and contained in directives 1 and 2 under the heading Distribution, is that, except in exceptional cases of special permits to be issued by the Civil Supplies Officer with theprevious approval of the Director of Civil Supplies, there will be one wholesale co-operative society for each district, and it will thenceforth issue controlled articles for retail distribution to co-operative societies only, the allocation to retail societies being made by the Civil Supplies Officer.
7. The rules, or directives, bear no date, but the Director of Civil Supplies sent copies of them to all the Deputy Commissioners in Himachal Pradesh by his letter dated 22-8-1951 (wrongly typed as 1952 in the copy filed by the respondents). He also wrote to all the Deputy Commissioners on 22-9-1951 that licences issued in favour of private individuals need not be renewed as and when their present terms expired.
8. Against the said prohibition the retail licence-holders, including the petitioner, made a representation to the Chief Commissioner on 26-10-1951. The representation was turned down and the Director of Civil Supplies by his letter dated 21-11-1951 asked the Deputy Commissioner Chamba to inform the retail dealers that as the previous system had not worked satisfactorily distribution of controlled articles had been transferred to co-operative societies in response to public demand, and that it was open to them to become members of any of the existing co-operative societies or form new ones. This reply was communicated to the retail dealers by the Deputy Commissioner on 1-12-1951.
9. Inspite of the failure of the representation, the petitioner applied to respondent 2, the District Civil Supplies Officer Chamba, on 26-12-1951 for the renewal of its licence for the ensuing year. The respondent returned the application to the petitioner on the same date with the endorsement that under the orders of the Director of Civil Supplies licences issued in favour of private firms could not be renewed. A fresh application was made to the respondent by the petitioner on 11-1-1952 whereupon, the petitioner alleges, its licence was renewed only for the first quarter from 1-1-1952 to 31-3-1952 although a full year's fee was realised. A little before the expiry of the quarter the petitioner applied once more for renewal of its licence for the rest of the year 1952, but on 14-4-1952 respondent 2 extended it only uptill the end of the next quarter. On 17-4-1952 the respondent informed the petitioner that the extension had been granted only to enable it to dispose of the old stock, and that if it transgressed that condition it would be dealt with according to the law. Thereupon, before the expiry of the second extension, the present writ petition was filed by the petitioner on 12-6-1952. It is supported by the affidavit of Mulkh Raj, a partner of the petitioner firm.
10. It will thus be seen that respondent 2's order dated 17-4-1952 was the culmination of the State policy whereunder distribution of cloth through private firms was stopped and entrusted to co-operative societies. The petitioner firm has challenged it by means of the present petition in its two aspects: one, the smaller aspect, whereunder the renewal for 1952 was not granted for the entire year, and the other, the larger one, whereunder its business had been stopped until it joined one of the existing licensed co-operative societies or formed a new one.
11. The aforesaid order, in its more limited aspect, has been challenged on the grounds thatunder the Licencing Order the authorities concerned were bound to renew the licence for one year, that having received licencing fee for the whole year respondent 2 had no authority or justification for renewing it for periods of three months only, and that the renewal order dated 14-4-1952 having been unconditional no conditions could be imposed subsequently by the order dated 17-4-1952. In its larger aspect, it has been impugned on the grounds that the cloth situation in the country had improved so much so that the Government had recently permitted mills to sell some cloth to buyers of their own choice, and therefore the restriction imposed by the State was not justified, that it is an encroachment on the fundamental right to carry on its cloth business guaranteed to the petitioner under Article 19 (1) (g) of the Constitution, and that the restriction, which has brought the petitioner's business to a complete stand-still, is not a reasonable restriction nor a restriction in the interests of the general public. The petitioner further contends that inasmuch as retail dealer's licences are freely available in all the States in India in general, and in the neighbouring places like Dalhousie and Bakloh in the Punjab in particular, the aforesaid restriction involves discrimination between one citizen of the Indian Union and another and therefore denies equality before the law to the petitioner.
12. The reliefs claimed by the petitioner firm on the above grounds are the issue of a suitable writ of mandamus, or other directions, to the respondents directing them to grant to the petitioner firm annual retail cloth dealer's licence as before, and to lift the ban imposed by the Government against the import of mill-made free sale and power-loom cloth.
13. The petitioner also prayed that pending the disposal of the petition the operation of the aforesaid order be suspended, the petitioner's licence be ordered to be renewed for the remaining period of 1952, and it may be permitted to continue its business. The second of these interim reliefs was not granted but, on the basis of an affidavit filed by the petitioner that the renewal for the second quarter on 14-4-1952 was unconditional and the licencing fee for the entire year had been realised, a 'rule nisi' was issued by this Court on 17-6-1952 prohibiting respondents 2 to 4 (those being the only respondents against whom the learned counsel for the petitioner wanted the order to be directed) from preventing the petitioner to purchase and sell whatever quota of cloth the petitioner might be entitled to purchase and sell on foot of the existing licence renewed upto the end of June, 1952, without regard to the restrictions contained in the letter dated 17-4-1952 from the District Co-operative and Supplies Officer Chamba to the petitioner. No objection was taken on behalf of the respondents against the above order, presumably because the short-term order had lost its force by the date for which respondents were notified. A further application of the petitioner for extension of the order for the entire pendency of the writ petition was rejected.
14. The respondents contested the petitioner's writ petition, their written statement being supported by the affidavit of M.R. Chauhan, District Co-operative and Supplies Officer Chamba. The petitioner's allegations regarding the easing of the cloth situation inthe country were traversed. Their reply with regard to the main allegation of the petitioner as to the entrustment of the work of distribution of cloth to co-operative societies was that the action had been taken under the aforesaid Cloth Distribution Rules with the object of the business being carried on under closer Government control as distribution of controlled goods through individual dealers had been unsatisfactory and in the past there had been persistent complaints and demand by the public on the ground of black-marketing.
It was further contended that the Chief Commissioner had full and unfettered powers to make the said rules, which were in the nature of a general remedial measure, under the Essential Supplies (Temporary Powers) Act; that these rules superseded or modified the Licencing Order; that the Chief Commissioner had also absolute discretion under the Licencing Order to stop renewal of a licence or to cancel it without assigning any reason; that the restrictions which the Government were forced to impose were for the good of the public; that as the petitioner firm has not agreed to join the co-operative societies and to be content with fair and limited profits, its petition is nothing but an appeal to uphold the continued exploitation of the dumb and illiterate masses of Himachal Pradesh by profiteering and black-marketing. As regards the complaint of the petitioner that its licence had not been renewed for the whole of 1952, it was pleaded that the two renewals had been made, and expressly so, merely to enable the petitioner to dispose of the old stock, and that the fee had been accepted only provisionally.
15. I shall take up first the grounds on which the action of the State has been challenged in its more limited aspect of non-renewal of the licence for the whole of 1952. The rules or directives framed by the Chief Commissioner, on foot of which action has been taken, were, as pointed out above, distributed to all the Deputy Commissioners by the Director of Civil Supplies on 22-8-1951. To implement these rules he further directed them on 22-9-1951 that licences in favour of private individuals need not be renewed on the expiry of their terms. The carrying out of these directives, however, necessitated not only the non-renewal of licences of private individuals in future, but also the making of some arrangement to enable them to dispose of old stocks left with them at the expiry of their existing licences. Clause 11 of the Licencing Order specifically provides for such a contingency. Certain communications filed by the respondents show that the arrangement was in fact made.
These communications are a letter dated 12-1-1952 from the District Civil Supplies Officer to the Director, and a telegram dated 25-3-1952 from the latter to all the Deputy Commissioners. They show that at the commencement of each of the first two quarters of 1952 directions were issued to grant short term extensions of licences of three months each for the purpose. It must be presumed that these directives were carried out. Indeed, it would be incredible that in the teeth of these directives the two renewals to the petitioner were ordinary and unconditional renewals, as the petitioner would have us believe. That the first part of the directives was carried out stands conceded, for it is admitted that before the expiry of the year 1951 the petitioner was informed that its licence would not in future be renewed, and that if it wanted to continue its business it should either join one of the existing co-operative societies or form a new one according to law.
As regards the other directive, there is the specific affidavit of respondent 2 that both the renewals were made to enable the petitioner to dispose of the old stock. It is noteworthy that no attempt was made on behalf of the petitioner to rebut this affidavit. In the only affidavit on behalf of the petitioner on record, that of Mulkh Raj, all that is stated is that the renewals, as noted on the petitioner's licence, were unconditional. That is mere quibbling. That the condition was not noted down does not necessarily mean that it was not made known. Indeed, from the very facts that the petitioner had been forewarned that its licence would not be renewed after 1951, and that each of the two renewals in 1952 was made for three months only, I must accept as correct the said affidavit of respondent 2 and reject as incorrect the prevaricative affidavit of the petitioner firm's partner. The aforesaid communication to the petitioner from respondent 2, dated 17-4-1952, was, as it specifically purports to be, merely confirmatory of the conditions subject to which the renewals had been made. The truth of the one and the falsity of the other stand further confirmed by the receipt for the fee filed by the petitioner firm itself, which clearly states that it was received 'as deposit', or provisionally, as pleaded by the respondents.
16. I therefore hold that, having decided not to renew the petitioner's licence for 1951, the Civil Supplies department was not hound to renew it for 1952, and that it granted the two extensions, as it could under the Licencing Order, only to enable it to dispose of its old stock. This finding in respect of the grounds on which the petitioner challenged the action of the State in its more limited aspect shows that the petitioner made a deliberate mis-statement of facts in its writ petition in order to mislead the Court. What is more, the petitioner did succeed in misleading the Court for, as adverted to above, it obtained on the basis of the said unfounded allegations a 'rule nisi' on 17-6-1952 prohibiting respondents 2 to 4 from preventing the petitioner to purchase and sell whatever quota of cloth the petitioner might be entitled to purchase and sell on foot of the existing licence renewed upto the end of June, 1952, without regard to the restrictions contained in the letter dated 17-4-1952 from respondent 2 to the petitioner. Where such is the case, that would by itself be sufficient ground for rejecting a writ petition, as pointed out by this Court in--'Harish Chandra v. Lieutenant-Governor of Himachal Pradesh', AIR 1952 Him P & B 43. To my mind, the requirement of writ petitioners coming with clean hands cannot be too strongly insisted upon. Any falling off from that standard would tend to reduce petitions under Article 226 for the extraordinary remedy of high prerogative writs to the level of ordinary actions at law where, acting on the theory that if one shoots at the stars one may at least succeed in hitting the tree, parties fire off allegations indiscriminately on the off-chance of some one or the other of them scoring a bull's eye. A typical instance of this gambling spirit in litigation is the plea of a defendant, sued on foot of a bond or a pronote, that the instrument is, a forgery but that if the Court comes to a contrary finding an instalment decree be passed. A falling off from the said standard is also likely to result, from the very nature of the extraordinary remedy, in an abuse of the process of the Court, as it has in the present case.
17. This petition could well be rejected, therefore, on the finding that the petitioner has been guilty of making deliberate misstatement of facts with a view to misleading the Court. Giving the petitioner the benefit of one circumstance, however, namely the circumstance that the misstatements related only to the case in its more limited, and not the larger, aspect, I would pass on to a consideration of the other grounds taken by the petitioner.
18. Apropos the case in its larger aspect, the following appear to me, on a careful scrutiny of the pleadings of the parties, to be the points that arise for determination. The first point does not arise from the respondents' written reply but from a ruling relied upon by the learned Government Advocate. The points are: (1) Is the right claimed by the petitioner not a fundamental right? (2) If there be a fundamental right, whether there has been restriction or total deprivation in the petitioner's exercise of it? If the latter, does it make any, if so what difference? (3) Is the petitioner entitled that the restriction or deprivation, as the case may be, be ordered to be removed on the mere ground that the cloth situation in the country has, if at all, improved? (4) Should the restriction or deprivation be removed because, if at all, it is discriminatory and denies equality before the law to the petitioner? (5) Is the restriction, or deprivation, as the case may be, not justifiable on the ground of (a) reasonableness, and (b) its being in the interests of the general public? (6) Had the Chief Commissioner full and unfettered discretion to impose the restriction? and (7) To what remedy, if any, is the petitioner entitled by a writ or otherwise?
19. The ruling relied upon by the learned Government-Advocate in connection with the first point was -- 'Sankarasubramony v. State', AIR '1952 Trav-C 260. The facts of that case bear a striking resemblance to those of the present. The petitioner received and distributed yarn as holder of a retail dealer's licence under the Travancore Cotton Yarn Dealers Licencing Officer, 1124, but, as in the present case, his licence was not renewed, although the necessary renewal fee was paid, on the ground that the Government had decided that distribution of yarn shall in future be made entirely through licensed Co-operative Societies. The State professed to have adopted the policy as a step towards the development of hand-loom industry. It was pleaded that Clause 6 of the said Order gave the authority concerned absolute discretion in the matter, and that the restriction imposed was a reasonable one in public interest. The writ petition was dismissed on the findings that under the said clause the authority concerned had absolute discretion, and it was always expected that the authority would exercise the power with discretion and not arbitrarily, that the object of the Government was a laudable one and the determination of that object was a matter of administrative character and so not amenable to a writ ofcertiorari, and that as the petitioner, got his right to deal in yarn, a controlled article, under the leave and licence of the authority concerned it was not a fundamental right.
In my opinion, the present petition also deserves to be dismissed, but on different grounds. I shall therefore advert to the views expressed in the ruling only if it becomes necessary to do so. For purposes of the first point, however, I find myself unable, with all respect, to reject the present petition on the ground that the right claimed by the petitioner is not a fundamental right. In the opinion of the learned Judge, it was a fundamental right 'so long as the yarn was a commodity available in the open market', but that as the petitioner 'got the freedom to deal in yarn which was a legally controlled commodity only by virtue of a licence obtained from the officer appointed for the purpose, it was not a fundamental right'. As conceded by the learned Judge, the right to deal in yarn was one of the fundamental rights guaranteed by our Constitution, being the right to carry on any trade or business under Article 19 (1) (g). The mere fact that, due to certain economic or other exigencies, the scope for the exercise of that right was curtailed by the Central or State Legislature passing certain laws, like the Essential Supplies (Temporary Powers) Act or the various Orders under it, in order to control the production, supply, distribution etc. of the commodity, does not mean that the right ceased to exist or ceased to be fundamental in its character. The fundamental character of the right to carry on any business or trade is guaranteed by the Constitution itself, so that it cannot be deprived of that character although, no doubt, its. exercise can be restricted, but only within the limitations prescribed by Clause (6) of the said Article. Therefore, the restrictive legislation, instead of creating the right, as the ruling under consideration seems to suggest, is itself liable to be held void under Article 13 (1) of the Constitution if it restricts any of the fundamental rights in excess of the prescribed limitations. I therefore hold that the right to carry on cloth business claimed by the petitioner is a fundamental right guaranteed by Article 19 (1) (g) of the Constitution though subject to the limitations contained in Clause (6) of that Article.
20. The next question is whether there has been restriction, or total deprivation, in the matter of the exercise of the said fundamental right by the petitioner. One restriction there certainly is, and that is that the petitioner's right to trade in cloth is subject to control under the provisions of the Licencing and Distribution Orders. It has had to take a retail dealer's licence under the former Order, and, under pain of criminal liability, it cannot violate the provisions of the Orders or the terms and conditions of its licence. For instance, it cannot sell cloth at a price higher than that fixed under the provisions of the Distribution Order. The petitioner does not, however, question the legality of these Orders or the restrictions imposed thereby. What the petitioner complains against is the order issued by the State through its Civil Supplies department requiring the petitioner, along with the other retail dealers, to stop its business unless it became a member of one of the licensed Co-operative Societies. Now, it is clear that the petitioner's business has not been totallystopped since it is open to it to carry it on if j it joins one of the co-operative societies. Total stoppage would result, therefore, due to the petitioner's own decision not to, join the societies and not to the said order of the State. It was laid down in -- 'Gopalan v. State of Madras', AIR 1950 SC 27, that 'the use of the word 'restrictions' in the various sub-clauses seems to imply, in the context, that the rights guaranteed by the Article are still capable of being exercised ...............though the words 'restriction' and
'deprivation', are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation.'
In the present case, the right of doing cloth business is still capable of being exercised despite the said order of the State. I therefore hold that the petitioner in this case has not been deprived of its right but only restricted in the exercise thereof. The other question of the effect of the order if it had resulted in total deprivation, therefore, does not arise.
21. The contention of the petitioner that the restriction in question is liable to be removed by reason of the cloth situation in the country having improved is wholly untenable. The petitioner has cited a report in the Tribune of 20-5-1952 of a statement of the Commerce and Industry Minister in the Parliament on 19-5-1952 in support of its contention. But a report in a newspaper is only hearsay evidence; -- 'Bawa. Sarup v. Crown', AIR 1925 Lah 299. Moreover, a newspaper is not one of the documents referred to in Section 78 (2), Evidence Act, by which the proceedings of the Legislature may be proved. These considerations apart, whatever may have been said in the Parliament by the Hon'ble Minister on the particular occasion, the fact remains that the operation of control under the provisions of the Essential Supplies (Temporary Powers) Act, 1946, was still in force at the relevant time and has recently been further extended till 26-1-1955 by the Essential Supplies (Temporary Powers) Amendment Act 65 of 1952. Whether the cloth situation in the country was such as to do away with the necessity of controls is a matter of legislative policy, which, as pointed out in--'In re Article 143, Constitution of India and Delhi Laws Act, 1912', AIR 1951 SC 332, is one of the essentials of the legislative function. To ask this Court to adjudicate upon the rights of the petitioner on the ground of improvement in the cloth situation of the country would therefore be to require it to do what Frankfurter J. described in --, 'Secretary of Agriculture v. Central Roig Refining Co.', (1950) 94 Law Ed 381, as 'a singular intrusion of the Judiciary into the legislative process.'
22. The next point relates to the alleged discriminatory nature of the order. The petitioner's allegation is that as retail dealers licences are freely available in all the States in India generally, and particularly in some of the neighbouring places in the State of Punjab, like Dalhousie and Bakloh, the restriction in question involves discrimination between one citizen of the Indian Union and. others. It was therefore contended that the petitioner had been denied equality before the law guaranteed by Article 14 of the Constitution. Before considering it on merits it has to be pointed out that there is over-statement in theallegation. It is evident from the representations and Government's replies filed by the petitioner firm itself that the restriction in question was imposed, not on the petitioner alone, but on all the retail licence-holders in the State. The allegation of the petitioner that the restriction involves discrimination between one citizen of the Indian Union and others is, therefore, not correct. The discrimination, if any, is between the retail licence-holders of the State of Himachal Pradesh and those in the Indian Union generally and the neighbouring districts in the Punjab particularly.
There is one aspect of the matter which presents some difficulty and no argument was advanced before me to solve the difficulty. The sphere of activity of the State of Himachal Pradesh must needs be confined within the four corners of the State It is powerless by the very limits to its territorial jurisdiction always to act in such a manner as to obviate discrimination between the citizens of Himachal Pradesh and the citizens of the rest of the country. Is the State of Himachal Pradesh therefore to be precluded from taking a certain action with regard to the citizens of the State, even though the taking of the particular action be in the interests of the citizens of the State, and even though the action be not discriminatory qua those citizens 'inter se', simply because it involves discrimination between them and the citizens of the other States of the Union? To my mind, the answer to the question should be in the negative, for to hold otherwise would be to deny to our constitution its essential character of a federal constitution. There is no doubt that, regard being had to the provisions of Article 245, which empowers the Parliament to make laws for the whole or any part of the territory of India, our constitution is only quasi-federal in character, and not strictly federal in the sense of the Parliament and the State Legislatures being independent and co-ordinate within their respective spheres. But, subject to that, each State has plenary powers to legislate for those who are actually within its jurisdiction. That being so, it necessarily follows that in doing so each State should, and in fact can, take into consideration only the economic and other considerations obtaining within its own territorial limits and not those prevalent outside those limits. As remarked in -- 'Wallace Bros, and Co. Ltd. v. Income-tax Commr. (Bombay)', (1948) 2 Dom LR (PC) 848, in speaking of a subordinate Legislature,
'The ambit of the powers possessed by it depends upon the proper construction of the Statute conferring those powers. No doubt the enabling statute has to be read against the background that only a defined territory has been committed to the charge of the Legislature. Concern by a subordinate Legislature with affairs or persons outside its own territory may therefore suggest a query whether the Legislature is in truth minding its own business.'
23. That had reference to the proposition that so long as a State Legislature acts within its own competence it is immaterial what the extra-territorial effect of its action may be. On the same principle, it should be immaterial that the act produces inequality between the citizens of the State affected by the State action and those outside the State not so affected. The crucial test is that the ambit of the powerspossessed by the State Legislature depends upon the proper construction of the statute conferring those powers. Once that test is satisfied it matters not that inequalities of any kind, as a result of comparison of interests of the citizens of the State and of those outside the State, are created. In the present case, whatever be the other grounds of attack, it is not suggested that it was not within the ambit of the powers of the Chief Commissioner to impose restrictions on the retail dealers of Himachal Pradesh. He was therefore legitimately minding his own business, and his action cannot be held to be invalid merely because in consequence thereof the particular class of citizens of this State against whom that action was directed, namely, the retail cloth dealers, have been placed in a position which compares unfavourably with retail cloth dealers anywhere outside the State.
24. But even if it be supposed that a State must act so as not to create inequalities between its citizens and the citizens of the Union outside the State, the petitioner has failed to establish that any such inequality has in fact been created. The principle underlying the guarantee contained in Article 14 of our Constitution, that the State shall not deny to any person inequality before the law. has been expressed by Jennings in his Law of the Constitution in the following terms: 'Equality before the law means that amongequals the law should be equal and shouldbe equally administered, that like should betreated alike.'
25. The Hon'ble the Supreme Court has laid down in -- 'Charanjit Lal v. Union of India'. AIR 1951 SC 41, as follows: 'The guarantee against the denial of equal protection of laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, 'Equal protection of laws is a pledge of the protection of equal laws', see -- 'Yick Wo v. Hopkins'. (1885) 118 US 356 at p. 369, and this means 'subjection to equal laws applying alike to all in the same situation' vide -- 'Southern Rly. Co. v. Greene' (1909) 216 US 400 at p. 412. In other words, there should be no discrimination between one person and another if as regards the subnet-matter of the legislation their position is the same.' It was further laid down as follows: 'The Legislature undoubtedly his a wide field of choice in determining and classifying the subject of its laws, and if the law deals alive with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection: but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made: and classification made without any substantial basis should be regarded as invalid.'
26. According to the same ruling, the burden of proving that there has been a transgression of constitutional principles is upon him who alleges it Keeping all the above principles in view, it lay on the petitioner in this case to prove, firstly, that there has been discrimination, and, secondly, that this hasbeen so despite the position of the retail vendors of cloth in Himachal Pradesh being the same as in the Union of India generally or even in the neighbouring districts of the Punjab particularly.
27. As regards the factum of discrimination, the petitioner's allegation in para. 17 of the petition is that retail dealers' licences are freely available to everybody in the whole of the remaining States of India and specially in Dalhousie and Bakloh in the Punjab which are quite near to Chamba. The allegation is too bold and sweeping in character to merit ready acceptance. The respondents have not cared, however, in their reply even to traverse the allegation. Strictly and technically speaking, therefore, it may be taken that the allegation is correct. But the second of the above two facts which it was incumbent on the petitioner to prove has not been established, namely, that the discrimination has been made despite the position of the retail dealers of cloth elsewhere being the same as in Himachal Pradesh. In point of fact, the petitioner has not even made an allegation to that effect.
On the other hand, it has been specifically alleged on behalf of toe respondents, and the allegation is supported by the affidavit of M.R. Chauhan, District Co-operative and Civil Supplies Officer Chamba, that the basis of the restriction is the general complaint of the public due to mal-distribution and black-marketing of controlled goods by individual retail dealers. True, no instances of black-marketing have been cited, but that from its very nature it was not possible for the respondents to do. And yet, although no such instances may have been cited, it was not impossible for the respondents to have formed a correct opinion on that point from the day-to-day working of the pre-restriction system. Indeed, they were preeminently in a position to do so. There is no suggestion that there was some ulterior motive in imposing the restriction. It is incredible that a public body like the State could be actuated by any ulterior motive. After all, the introduction of co-operative system entails some extra work for the State. The State could not therefore have imposed that extra work on itself if it did not really find itself constrained to do so on account of the existence of black-marketing.
It must also be remembered that the consumers of Himachal Pradesh are notoriously much more backward, and therefore likely to fall a prey to black-marketing much more easily, than those in the neighbouring State of the Punjab. The said sworn allegation in the affidavit filed on behalf of the respondent has not been rebutted on behalf of the petitioner. It is also extremely significant that no reason has been suggested why the petitioner is unwilling to join one of the existing co-operative societies or to form a new one according to law. The petitioner is only harping on contentions as regards infringements of rights under the Constitution. One thing is also certain, and that is that, with the work of distribution entrusted to co-operative societies, there will be no scope for profiteering or black-marketing. In view of all these facts and circumstances, the irresistible conclusion is that black-marketing did prevail in Himachal Pradesh and that it was in order to root out the evil that the restriction in question was imposed. The petitioner does not, of course, say that black-marketingprevailed elsewhere also, or, in any case, that it prevailed elsewhere to the same extent as in this State. The conditions prevailing in this State were therefore not the same as elsewhere. That being so, the State were perfectly justified in singling out its retail cloth dealers for the imposition of the restriction in question. The petitioner's allegation that it has been denied equality before the law is therefore untenable.
28. By the same token, the next point of whether the restriction is not justifiable on the ground of reasonableness and its being in the interests of the general public must be decided against the petitioner. There is no doubt that under Clause (6) of Article 19 of the Constitution the restriction has to be both reasonable and in the interests of the general public. That being so, the petitioner would be entitled to avoid the restriction if it can establish non-fulfilment of either, and not necessarily both, of these conditions. In dealing with the question of equality before the law I have held that the contention of the respondents that the backward consumers of Himachal Pradesh were a prey to black-marketing, and that it was with the object of saving them, from that evil that the restriction was imposed. There can be no doubt therefore that the restriction was imposed in the interests of the general public. As regards reasonableness, it was held in -- 'Chintamanrao v. State of Madhya Pradesh', AIR 1951 SC 118, as follows:
'The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.'
As a test of whether a particular restriction is arbitrary it was further laid down in that ruling:
'Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.'
29. One of the purposes of control of essential commodities, cloth being one of those commodities, under Section 3 of the Act is their equitable distribution and availability at fair prices. The restriction in question would eminently, serve that purpose by entrusting the work of distribution of cloth to co-operative societies and thereby obviating the evil of black-marketing. The restriction is therefore not arbitrary. Furthermore, the restriction does not go beyond what is required in the interests of the public, for having achieved the object of securing cloth to the consuming public at controlled price, it leaves it open to the retail dealers to carry on their cloth trade as before. The restriction is therefore not excessive but, on the contrary, it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) to a particular class of persons and the interests of the general public under Clause (6). I therefore hold that the restriction is unassailable, being both reasonable and in the interests of the general public.
30. In view of the above findings it is not necessary to go into the question whether the Chief Commissioner had full and unfettered discretion to impose the restriction. It was strenuously argued on behalf of the petitioner that the provisions of the Distribution Order whereby the Chief Commissioner arrogated to himself such unfettered discretion were unconstitutional. It was further argued that the aforesaid rules subsequently framed by him were only departmental directives and lacked the quality of being a 'notified order' under the provisions of Section 3 of the Act. It may be that these contentions are well-founded. But it appears to me that once it has been found that the complaints of the petitioner are untenable inasmuch as it has not been denied equality before the law, and although restricted in the exercise of its fundamental right to carry on cloth business the restriction is both reasonable and in the interests of the general public, the petitioner will not be entitled to any relief simply because the act of the respondents was otherwise unconstitutional. This Court will not, in exercise of its jurisdiction under Article 226 of the Constitution, undertake a roving commission to adjudicate upon the constitutionality or otherwise of the acts of the executive or the Legislature even though the petitioner may have failed to make out a case for the enforcement of fundamental rights. On the subject of delegation of legislative power without any standard for the guidance of the delegate, there appears the following passage in Willis' Constitutional Law:
'Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power but only by its arbitrary exercise by those upon whom conferred.'
31. It would follow therefore that, it will avail a petitioner nothing if all that appears is that the power in exercise of which a legislative or executive body has performed an act is capable of being exercised unconstitutionally unless it is also shown that in the particular case that power has in fact been exercised arbitrarily. Again, in speaking of the scope of the corresponding Article 32 it has been laid down in--'Charanjit Lal v. Union of India', AIR 1951 S C 41, at p. 52, para. 44, as follows: 'The application before us under Article 32 of the Constitution is on behalf of an individual shareholder of the Company. Article 32, as its provisions show, is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at, is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the Legislature. To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond thecompetence of the particular Legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order.' And again at p. 60, para. 73: 'It is clear, therefore, that Article 32 can only be invoked for the purpose of the enforcement of the fundamental rights. Article 32 does not permit an application merely for the purpose of agitating the competence of the appropriate Legislature in passing any particular enactment unless the enactment also infringes any of the fundamental rights.' It may therefore be that the action taken by the Chief Commissioner was beyond his legislative competency, but unless it is shown that it affected or invaded the petitioner's fundamental rights guaranteed by the Constitution so as to entitle it to seek enforcement of the same by an appropriate writ or order, the petitioner cannot be said to have made out a case for relief under Article 220. The sixth point therefore does not arise for determination.
32. Before I conclude I must briefly discuss the rulings cited by the learned counsel for the petitioner. One was--'Balakrishnan v. State of Madras', AIR 1952 Mad 565. The provision of the Cotton Textiles (Control) Order impugned in that case not only conferred unfettered discretion on the authority in question, but that discretion was in fact exercised in a discriminatory manner to the prejudice of the petitioner. The discretion has not been exercised in a discriminatory manner in the present case. The next case cited was -- 'Chintamanrao v. the State of Madhya Pradesh', AIR 1951 S C 118. That was a case of complete stoppage of business by an arbitrary exercise of power which had no relation to the object which the particular legislation sought to achieve, which, as already shown, is not the case here. I have followed the interpretation put upon the phrase 'reasonable restriction' in that case. The case of -- 'Anumathi Sadhukhan v. A.K. Chatterjee', AIR 1951 Cal 90, is distinguishable for the same reasons as the Supreme Court ruling just cited. The case of -- 'Rashid Ahmed v. Municipal Board, Kairana', AIR 1950 S C 163, has no application for that was a case of unreasonable restriction due to creation of a monopoly. As regards -- 'Romesh Thapar v. State of Madras', AIR 1950 S C 124, the principle laid down there that 'so long as the possibility of a law being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void' does not come in for application in the present case since, unlike the present case, the law in question there was held not saved by the relevant limitation Clause (2) of Article 19. The case of -- 'In re Subrahmanyam', AIR 1950 Mad 308(2), lays down that a notification not published in the official gazette is not valid. But, as adverted to above, the question of determination of the validity of the rules promulgated by the Chief Commissioner on 22-8-1951 does not arise in this case. Cancellation of licence in -- 'Dalchand v. Commr. Food and Civil Supplies', AIR 1952 All 61, was held illegal on a circumstance peculiar to that case, namely, that reasons for cancellation were not recorded as required by Clause 12 of the particular Licencing Order. These were all the rulings cited, and ithas been shown that none of them is of any help to the petitioner.
33. In the result, therefore, I hold that although petitioner's fundamental right of carrying on cloth business under Article 19(1)(g) has been restricted by its being required to join one of the licensed co-operative societies or to form one according to law, the restriction is a reasonable one in the interests of the general public, and it does not also deny the petitioner equality before the law. I further hold that, in view of the above findings, the petitioner is not entitled to seek enforcement of its said right under Article 226 of the Constitution, and that therefore the petitioner is entitled to no relief even though the power in exercise of which the restriction has been imposed may have been capable of being exercised unconstitutionally. The petition is accordingly dismissed and the petitioner is ordered to pay Rs. 60/- as costs to the respondents.
34. It is certified under Article 132(1) of theConstitution that substantial questions of lawas to the interpretation of the Constitution (affecting the interests of a large number of persons belonging to the class of retail clothdealers in Himachal Pradesh) are involved inthis case.