# R•zhub•nsh Lal v. Tiu Stat1 of U.P. Kapur]

- **Citation:** [1957] 1 S.C.R. 701
- **Court:** Supreme Court of India
- **Decided:** 1955-02-03
- **Bench:** connected petitions) S. R. DAs C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-zhub-nsh-lal-v-tiu-stat1-of-u-p-kapur-1367
- **Pages:** 20

## Headnote

VENKATARAMA
AYYAR, B. P.
SrNHA,
S. K. DAs and GAJENDRAGADKAR JJ.)
Import and Export,
Control of-Soda ash, if can be imported
tuithout licence-Issue of licence, if amounts to delegated legislationTrafficking in licence-Confiscation of consignments and seizure of
licence by Sea Cu;toms Authorities-Issue of Writs-Policy Statement
1957
R•zhub•nsh Lal
v.
Tiu Stat1 of U.P.
Kapur].
1957
F1lruary 21
1957
Bhatna1ars and Co.
Ltd.
v.
Th• Union of India
702
SUPREME COURT REPORTS
[1957]
by GovernnJent, if. amounts to monopoly-.../mport and Export( Control)
Act. 1947 (XVl/l of 1947), s. 3(J)(a)-Constitution of India, Art. 32.
The petitioner obtained a. licence for importing soda
ash
during the free licencing period in 1952.
On the basis of the
licence certain consignments of soda ash were received in Bombay.
The Customs Authorities had reason to suspect that the petitioner
was trafficking in his licence and on investigation found that two
of the consignments had actually been imported by another party
and
confiscated them.
The petitioner appealed to the Central
Board of Revenue and thereafter moved the Government of India,
but to no effect.
The Collector of Custo1ns ordered the goods -to
be auctioned.
Five petitions were filed in this court under Art. 32
of the Gonstitution seeking for the issue of appropriate writs in
respect of the confiscation of the goods and seizure of the licence.
It was contended on behalf of the petitioner that the In1ports and
Exports
(Control) Act, 1947 not having re-enacted
the provision!!
of r. 84(2) of the Defence of India Rules, s. 3(1)(a) of the Act had
no application to soda ash and no licence \Vas required to import
it; that, in the alternative, legislation authorising the issue of
licences
amounted to delegated legislation
and
was, therefore,
invalid.
It was further
contended that the
Policy
Statement
made by the Government in the Press Note dated
February 3,
1955, and Public Notice dated June 30, 1956, created a monopoly
and infringed the petitioner's funda1nental
right to carry on his
trade and business and lastly, that the virtual invalidation of his
licence having been improperly made should be set aside
and the
:;;an1e directed to be revalidated for the unexpired period.
Held, that the contentions raised on behalf of the petitioner
must fail and the petitions n1ust be disn1issed.
The language of s. 3(!)(a) of the
Imports
and
Exports
(Control) Act, !947, made it abundantly clear that it was intended
to apply to the i1nport of all goods of specified description co\'ered
by r. 84(2) of the Defence of India Rules including soda ash so as
to
render the re-c:naclJ11ent of that rule wholly
unnecC'~sary. The
provision
of the section
must be
rea<l
Jisjuncti\'ely
and distributively and it
was wholly unreasonable to suggest
that the
wor<ls 'i1nport' and 'export' could be qualified by the expressions
'carriage coastwise' or 'shipn1ent as ships' stores' occurring in the
section.
Nor could the section he helJ to be ultra vi1·es on the ground
of delegated legislation as the pre:unble and the relcYant sections
of the .i\ct .a.s also those of the Defence of In<lia 1\ct, V·:hich it
purported to continue and to \vhich reference 1,,vould be perfectly
legitimate,
show that the
Legislature
had clearly indicated the
policy and enunciated the principles that 1,vere
to guide
those
entrusted with the irnplen1entation of the
1\ct \vhich had for its
purpose the 1naintenancc of suppliC's essential to the con1munit}'.
Harisha11kar Bag/a v. The St,lfe of ,\fadhy.1 p,,,J,.ch. (1955)
S.C.R. 380, applied.
S.C.R.
SUPREME COURT REPORTS
703
Pannalal Binjraj v.
The Union of India, (1957) S.C.R. 233,
referred to.
It was perfectly open to the
Government of India to change
its import and export policy with a view to adjust it to the varying
needs of the country and if importers were found to resort to
malpractices leading to instability of prices, it would be its duty
to intervene and regulate distribution, if ne.ed be, with the assistance

## Text

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S.C.R.
SUPREME COURT REPORTS
701
in the proceedings under s. 145
Criminal
Procedure
Code, because according to the evidence on the record
the entries were
made somewhere in March and this
could not have helped
Adit Pande, as the magistrate
had already decided the
proceedings
under s.
145
Criminal Procedure
Code in
December 1950, and had
ordered possession to be delivered to the complainant ;
and, therefore, this entry could not affect the result of
the proceeding under s. 145
Criminal Procedure Code.
Mr. Mathur founded his case also on s. 16 of the
U.P.
Zamindari
Abolition and
Land
Reforms
Act,
(U.P. Act I of 1951),
which· provided that a person,
who was recorded as an occupant of the land for the
year 1356 F and who, on
the date mentioned in the
section was in possession of the land, shall be deemed
to be a hereditary tenant of
the land.
But the entry
complained of is not for the year 1356 F but for the
year 1358 F, and this entry would not have
been of
any avail to Adit Pande for the purposes of s. 16 of the
Zamindari Abolition Act.
In the circumstances of the
case it cannot be said that an offence under s. 218 has
been committed by the appellant a§ in our opinion the
prosecution has failed to
prove the necessary
criminal
intention.
In these circumstances, we would allow the appeal,
set aside the order of conviction and acquit the accused.
As a consequence the bail bond shall stand cancelled.
Appeal allowed.
BHA TN AGARS AND CO. LTD.
"·
THE UNION OF INDIA
(and connected petitions)
S. R. DAs C.J.,
VENKATARAMA
AYYAR, B. P.
SrNHA,
S. K. DAs and GAJENDRAGADKAR JJ.)
Import and Export,
Control of-Soda ash, if can be imported
tuithout licence-Issue of licence, if amounts to delegated legislationTrafficking in licence-Confiscation of consignments and seizure of
licence by Sea Cu;toms Authorities-Issue of Writs-Policy Statement
1957
R•zhub•nsh Lal
v.
Tiu Stat1 of U.P.
Kapur].
1957
F1lruary 21
1957
Bhatna1ars and Co.
Ltd.
v.
Th• Union of India
702
SUPREME COURT REPORTS
[1957]
by GovernnJent, if. amounts to monopoly-.../mport and Export( Control)
Act. 1947 (XVl/l of 1947), s. 3(J)(a)-Constitution of India, Art. 32.
The petitioner obtained a. licence for importing soda
ash
during the free licencing period in 1952.
On the basis of the
licence certain consignments of soda ash were received in Bombay.
The Customs Authorities had reason to suspect that the petitioner
was trafficking in his licence and on investigation found that two
of the consignments had actually been imported by another party
and
confiscated them.
The petitioner appealed to the Central
Board of Revenue and thereafter moved the Government of India,
but to no effect.
The Collector of Custo1ns ordered the goods -to
be auctioned.
Five petitions were filed in this court under Art. 32
of the Gonstitution seeking for the issue of appropriate writs in
respect of the confiscation of the goods and seizure of the licence.
It was contended on behalf of the petitioner that the In1ports and
Exports
(Control) Act, 1947 not having re-enacted
the provision!!
of r. 84(2) of the Defence of India Rules, s. 3(1)(a) of the Act had
no application to soda ash and no licence \Vas required to import
it; that, in the alternative, legislation authorising the issue of
licences
amounted to delegated legislation
and
was, therefore,
invalid.
It was further
contended that the
Policy
Statement
made by the Government in the Press Note dated
February 3,
1955, and Public Notice dated June 30, 1956, created a monopoly
and infringed the petitioner's funda1nental
right to carry on his
trade and business and lastly, that the virtual invalidation of his
licence having been improperly made should be set aside
and the
:;;an1e directed to be revalidated for the unexpired period.
Held, that the contentions raised on behalf of the petitioner
must fail and the petitions n1ust be disn1issed.
The language of s. 3(!)(a) of the
Imports
and
Exports
(Control) Act, !947, made it abundantly clear that it was intended
to apply to the i1nport of all goods of specified description co\'ered
by r. 84(2) of the Defence of India Rules including soda ash so as
to
render the re-c:naclJ11ent of that rule wholly
unnecC'~sary. The
provision
of the section
must be
rea<l
Jisjuncti\'ely
and distributively and it
was wholly unreasonable to suggest
that the
wor<ls 'i1nport' and 'export' could be qualified by the expressions
'carriage coastwise' or 'shipn1ent as ships' stores' occurring in the
section.
Nor could the section he helJ to be ultra vi1·es on the ground
of delegated legislation as the pre:unble and the relcYant sections
of the .i\ct .a.s also those of the Defence of In<lia 1\ct, V·:hich it
purported to continue and to \vhich reference 1,,vould be perfectly
legitimate,
show that the
Legislature
had clearly indicated the
policy and enunciated the principles that 1,vere
to guide
those
entrusted with the irnplen1entation of the
1\ct \vhich had for its
purpose the 1naintenancc of suppliC's essential to the con1munit}'.
Harisha11kar Bag/a v. The St,lfe of ,\fadhy.1 p,,,J,.ch. (1955)
S.C.R. 380, applied.
S.C.R.
SUPREME COURT REPORTS
703
Pannalal Binjraj v.
The Union of India, (1957) S.C.R. 233,
referred to.
It was perfectly open to the
Government of India to change
its import and export policy with a view to adjust it to the varying
needs of the country and if importers were found to resort to
malpractices leading to instability of prices, it would be its duty
to intervene and regulate distribution, if ne.ed be, with the assistance of importer-stockists working
under its general supervision
and no exception could be taken to such a policy on the ground
that it created a
monqpoly or infringed the
fundamental right to
carry on trade or business.
As, in the instant case, the goods were lawfully confiscated by
the Sea Customs
Authorities as a result of an investigation which
they were competent to
make, it was not open to the
petitioner
under Art. 32 of the
Constitution to challenge
their conclusions
on the ground that they had not been properly drawn and no
question, therefore, of any revalidation of his licence could at all
arlse.
ORIGINAL
JURISDICTION :
Petitions
Nos.
377
of
1955 and 42, 46, 164 and 423 of 1956.
Petitions under Article 32 of the
Constitution of
India for the enforcement of fundamental rights.
Petitioner in person in Petitions Nos. 377 of 1955
and 164 and 423 of 1956.
H. J. Umrigar and Y. Kumar, for
petitioner in
Petitions Nos. 42 and 46 of 1956.
C. K. Daphtary, Solicitor-General of
India,
A. Mehta and R. H. Dhebar, for
respondents in
tions Nos. 42, 46 and 423 of 1956.
Porus
PetiC. K. Daphtary, Solicitor-General of
and R. H. Dhebar, for
respondents in
377 of 1955 and 164 of 1956. .
India, B. Sen.
Petitions
Nos.
1957. February 21.
The
Judgment of the Court
was delivered by
1957
Bhatn11gars and Co.
Ltd.
v.
Thi Union ef India
GA JENDRAGADKAR
J .-This is
a group of five petiGajmdragadkar J.
tions filed
by the
petitioners
Messrs Bhatnagars
&
Co. Private Ltd.
In all these petitions, the
pettttoner
Shri B. S. Bhatnagar, Managing Director of the above
company,
seeks
to obtain
appropriate
writs
from
this Court mainly in respect of orders which have been
passed by the Sea
Customs
Authorities
against
the
petitioner.
This petitioner seems to
feel
a grievance
1957
Bh•lnagars and Co.
Ltd.
v.
Thi Ur.ion of India
Gajendragadkar J.
704
SUPREME COURT REFORTS
[1957]
that, in the matter of licences
which had been issued
to him for importing soda ash, he has not received a
fair treatment from
the appropriate
authorities
and,
since the impugned orders were passed, he has
been
moving the
High Court of Punjab and this Court by
several petitions under the Constitution.
The present
petitions .. show obvious traces
of unskilled
draftsmanship.
They are extremely diffused and in many places
incoherent.
Statements of
fact are
not logically
or
chronologii:ally made and there is complete confusion
in the narration of the story giving rise
to the petitioner's claim.
In several places, the petitions refer to
facts which are both
irrelevant and
immaterial and,
often enough, the petitioner is unable to restrain himself from making unjustified and irrelevant suggestions
against the authorities.
Even in regard to the claim
ultimately made by the petitioner, it is not easy to find
what exactly the
petitioner's grievance is and
what
particular writ he seeks to obtain
from this
Court.
However,
since the petitions
purport to invoke the
jurisdiction of this Court substantially under Art. 32 of
the Constitution, it is necessary to deal with the relevant
points in disposing of these petitions.
Three of the petitions have
been argued by Shri
Bhatnagar in person. They are Petitions Nos. 423 and
164 of 1956 and No. 377 of 1955.
Petitions
Nos. 42
and 46 of 1956 have been argued by Shri Umrigar on
behalf of the petitioner.
The material facts which it is
essential to mention are
very few and they lie within
a very narrow compass.
It appears that the petitioner
obtained a licence
for the import of soda
ash
only
worth about
Rs. 50,00,000
during the free
licensing
period in 1952.
In pursuance of
this
licence,
and
relying on the same, consignments of soda ash to the
extent of 100 tons, 200 tons and 20 tons
respectively
were received at Bombay ; but meanwhile the
Customs
Authorities had received informantion that, though the
petitioner had obtained a licence in his name
for the
import of soda
ash
for
such
a large
amount as
Rs. 50,00,000, his capital did not exceed
Rs. 15,000 and
that he was in fact trafficking in these
licences.
On
receiving this
report,
investigation
was
made
and
•
S.C.R.
SUPREME COURT REPORTS
705
subsequently the matter was left in
charge
of the
Special Police
Establishment.
During the
cou_rse
of
this investigation, certain documents were seized from
the petitioner-company's
office as well as
from
the
office of one Messrs N. Jivanlal & Co. at Bombay.
The
complaint made against the
petitioner
that he was
trafficking in licences was confirmed by this investigation'. It transpired that a person carrying on business
in the name of Messrs. N. Jivanlal & Co., had a free
hand in dealing with the licences of the petitioner and
that the petitioner used only to receive
commission for
tile imports that he allowed to be made in the name
of Messrs Bhatnagars & Co., Ltd.
In regard to the two
consignments of 100 tons and 20 tons of soda ash
respectively, it was
found on an
inspection
of the
documents that the same had been imported by Messrs
N. Jivanlal & Co .• and since Messrs N. Jivanfal
& Co.,
held no licence, the consignments
were seized by the
Collector of
Customs.
The offices of the petitioner and
Messrs N. Jivanlal & Co., were raided during the course
of this investigation on November 7, 1952 and FebrU1ry
6,
1953, respectively.
The goods arrived in Bombay
in March and April 1953 and they were confiscated by
the
Collector
of Customs in
May and June
1953.
Subsequently, the documents
including
the
licences
which had been seized were returned to the petitioner.
The confiscation of the goods was challenged by the
petitioner by preferring an appeal to the Central Board
of Revenue. The said appeal was, however, dismissed.
The petitioner then moved the Central
Government
against this
order but on
September 22, 1955, the
Central
Government
refused to interfere.
It appears
that
on
March 31, 1956, the
Collector
of
Customs
ordered that the goods should
be. auctioned.
When
this order was passed, the petitioner
filed
one of the
petitions before us.
He obtained an interim
order of
stay
but the
said
order
was
ultimately
vacated.
Broadly stated, these are the facts which give rise to
the present petitions.
Though five petitions have been presented by the
petitioner,
his grievance
substantially is
against the
confiscation
of the
consignments of
soda
ash
and
8-79 S.C.India/59.
1957
Bhatnagars and Co.
Ltd.
v.
T tu Union of India
Gajendragodkar ].
1957
Bhatnaf?ars and Co.
Ltd.
v.
Tht Union of India
Gajendragadkar J.
706
SUPREME COURT REPORTS
[1957]
against the seizure of his licences
by the investigating
authorities.
Each petition
seeks to put the grievance
of the petitioner in a different form and, though the
prayers
ultimately made are
also not of
the same
pattern, in the main, the petitioner wants this Court
to give him- relief
against
what he regards as illegal
seizure of the goods and against
the
virtual invalidation of his licences for import.
The period during
which the licences granted to him
could have
been
operated upon has expired and the petitioner, in one
of his petitions, seeks an order from this Court directing the Government to revalidate the licences so as to
allow the petitioner to import the article
m question
during the unexpired period of his licences.
Though it would have been possible to deal with
these petitions
collectively by
delivering a common
judgment; we would prefer to deal with
the matter
separately and consider the points raised in each petition by itself.
Petition No. 423 of 1956 in a sense
stands
apart
from the other petitions in
the present group.
The
facts which we have already mentioned are enumerated
by
the
petitioner even in this petition but the
substantial relief
which he seeks to claim and
which
the petitioner pressed before us in his argument is in
respect of his allegation that the Union of
India and
other
respondents
to the petition have
acted
in
contempt of this Court and appropriate action should,
therefore, be taken by us against the said respondents.
This contention arises in this way.
The petitioner had
made a similar petition to this Court, No. 571 of 1954,
in respect of one of the three consignments in question.
This petition had come before this
Court for hearing
on
March 24, 1955. Shri K. R. Chaudhury appeared
for the petitioner before this Court.
The order passed
by this Court would show that the
learned Solic1torGeneral of
India made a statement to the
Court indicating that the goods which had been confiscated hy
the Customs Authorities would not be sold or otherwise
dealt with for a month from the rlate
of the communication to the petitioner · of the final
order
that the •
Central Government may pass in the revisional petition
S.C.R.
SUPREME COURT REPORTS
707
preferred by him before them.
Acting on this undertaking, this
Court
allowed
the
petitioner a period
of one month from the date of the
communication
to him of the final order
which the
Central
Government might pass on his
rcvisional
petition to enable
him to file a petition for Special
Leave
to
appeal
if he
was so advised.
Then the
order
recorded
the
undertaking given by the
Solicitor-General.
Subject
to this order the petition was dismissed.
However, no
order was passed as to costs.
It is common
ground
that for several months thereafter the
revisional petition preferred by the petitioner to the
Central
Government was not disposed of. Ultimately it was dismissed.
The petitioner
seems to be under the impression that
the
Solicitor-General,
on
behalf
of
the
Central
Government, had given an undertaking that
the petitioner's revisional petition would be disposed of within
a certain specified time.
Indeed the petition seeks to
suggest that the undertaking was that the
revisional
petition would be disposed
immediately in a day or
two, and, since the revisional
petition
was not disposed
of within the time mentioned by the Solicitor-General,
the petitioner says that all the respondents are guilty
of contempt.
It is clear that the petitioner's
grievance
and the
prayer for a writ are entirely misconceived.
The petitioner is entirely in error in assuming
that, on
behalf of th<.'.
Union of
India. any undertaking
was
given that his revisional petition would be disposed of
within a dav or two.
Indeed,
the
Solicitor-General
fairlv told
~s that, at the time when
the petitioner's
earlier application was disposed of, he had
expressed
the hope that the petitioner's revisional petition
would
be dealt with by the
Central
Government at an early
date ; but the expression of this
hope had nothing to
do with the
undertaking
which the
Solicitor-General
gave and which
was included in the
Court's order.
The petitioner presumably
thinks
that the
Court's
order required that
his rcYisional
petition should be
disposed of by the
Central
Government
within a
month.
This asmmption
is
entirely
unwarranted.
The period
of one month which is mentioned in the
order w;~, the period granted to the petitioner to move
1957
Bhatnagars and Co.
Ltd.
v.
The Union ~f India
Gajendragadkar ].
1957
Bhatnagars and Co.
Ltd.
v.
The Union of India
Gajendragadkar ].
708
SUPREME COURT REPORTS
[1957]
this Court for Special Leave after the decision
of his
revisional petition by the
Central
Government
was
communicated to him. In other words, if the decision
of the Central
Government had gone against the petitioner, the petitioner was
given one
month's period
within which to move this Court for Special Leave and
the Union of
India agrec;°d not to deal with the property of the petitioner or dispose of it during that
period.
In
our
opinion,
the
order
is
plain and
unambiguous and there is no scope
for
any
misunderstanding whatever.
If no undertaking was given
as assumed by the petitionet, it is impossible to understand how any contempt can arise on the ground that
the undertaking had not been complied with.
Besides,
the petitioner has not stopped to consider which person
the
Union of India represents as Respondent No. 1 in
his petition.
He has also not paused to consider how
the other respondents could be guilty
of contempt.
We have no hesitation in holding that the prayer for
a writ in respect of the alleged contempt made by the
petitioner in this petition is
thoroughly
unjustified
and, we regret to add, wholly irresponsible.
This was
the only point which the petitioner urged before us in
this petition.
The result is
the petition
fails
and it
must be dismissed with costs.
In Petition No. 164 of 1956, so far as we were able
to gather, the petitioner's grievance is in respect of a
policy statement made by the
Government in the Press
Note dated February 3, 1955 and
Public
Notice No.
25-ITC (PN)/56 dated June 30, 1956.
The petitioner's
contention
appears to
be that the policy enunciated
in these two documents
amounts to a monopoly
and
he wants this Court to issue. appropriate writs terminating this monopoly and to ensure to the
petitioner
his fundamental right
of carrying on his trade
and
business. In our opinion,
this petition is also entirely
misconceived and there is no substance in
the contention raised by the petitioner.
It is hardly necessary to
emphasize that, in moderrt times, the export and import
policy of any democratic State is bound to be flexible.
The needs
of the country,
the position
of foreign
exchange,
the
need to
protect
nationar
industries
S.C.R.
SUPREME COURT REPORTS
709
an<l all other
relevant
considerations
have
to
be
examined by the
Central
Government from time to
time and rules in regard to export and import suitably
adjusted.
It would, therefore, be idle to suggest that
there should be
unfettered
and unrestricted
freedom
of export and import or that the policy of the Government in regard to export and import should be fixed
and not changed according to the requirements of the
country.
It is in the light of this position that the
policy statement in the Press Note has to be considered.
The Press Note covers several commodities, but, since
we are concerned with
Light soda ash in the present
case, it would be relevant
to refer briefly to the contents of the Press Note in regar<l to Light soda ash.
In regard
to
this
commodity,
Government
have
<lecided, says the Press Note, that the
import should
be canalised through
importer-stockists who would be
required to keep ·buffer
stocks
and effect sale in a
manner so as to eliminate fluctuations
in prices and
supplies experienced by consumers
in
the recent past.
The
Government
realized
that, without canalisation
of distribution
of this
commodity,
consumers
were
always
at
the
mercy of the importers
and
even
distribution
of
the
commodity
to all parts of the
country where it was
needed was
also
difficult to
obtain.
That
is why
the
Government
decided
to
canalise the distribution
of this commodity
with the
assistance of two 5elling organisations of Messrs.
Tata
Oil Mills C'..o. Ltd., and Messrs. LC.I. (India) Ltd. These
two concerns had agreed to procure soda
ash
from
suppliers selected on the basis of offers
which were
being invited
by means of
public notice
which was
issued on the same <lay as the Press Note.
Then the
Press Note concludes that soda ash so imported woulJ
be stocktl1 at
convenient centres anJ sold in accordance with the general directions that may be issued
by the
Government from time to time.
The sale price
would be fixeJ by the
Government on f.o.r. Port basis
and the
importer-stockists would
be 'paid remuneration for their services at the rate of 12!% of the landed
cost, additional
profit, if
any, on
the
transaction
being made over to Government.
The Public
Notice
1957
Bhatnagars and Co.
Ltd.
v.
The Union of India
Gajmdragad/rar :J.
19J7
B!wtnagars and Ca.
Ltd.
v.
·rnr Union of India
r;ajtnr/ragadk.ar J.
710
SUPREME COURT REPORTS
I 19571
which
was issued about
the same
time
gives
the
relevant particulars in regard to
the
import of soda
ash and other
commodities.
Tenders
were
invited
and cl. 4 of the
Public
Notice shows that the offerer
whose offer was accepted by the
Chief
Controller of
Imports would be required to enter into a contract of
sale within ten days of the acceptance of the offer with
the importer-distributor selected by the Government in
that behalf.
No dou\>t discretion was left to the
Chief
Controller
of
Imports
tu reject
any offer
without
assigning any reason.
Subject to the terms
and conditions set out .in the Notice, if ,,· contract was concluded,
an import licrnce for the
quantity contracted
to
be
purchased would . be issued in
favour of
the buyer
subject to such conditions as might be imposed by the
Government of India in that behalf.
It appears that, prior to 1953, import licences were
freely granted.
In 1953, licences began to be granted
to
established
importers subject to certain conditions.
lt also appears that
Government decided from time to
time the
total quantity of
the
specified
commodity
which should be imported.
Then the
extent
of the
business of
the applicant
for
licences
during
the
prescribed period was
taken into account and the total
amount of
import
was
then
distributed
pro rata
amongst the se\'tral applicants.
\Vhen it was found
that even this method did
not work sati;factorily, the
Government decided to canalise distribution hut while
canalisation
was
introduced in
this manner, tenders
were
invited
for import
licrnces
and
t!1ey
were
considered on merits
and licences granted
to several
claimants.
It may be that, if the LC.I. and the
Tata
Oil
Mills Co. Ltd., were
amongst the applicants
for
licences, their competitors in the line may have found
it difficult to fight with these two powerful rivals but
that is very different from saying that, by the method
of canalisation, ' the
Government
had introduced
a
monopoly in the import of the commodity in question.
It is also important to emphasize that the petitioner is
not even an established importer.
He was granted a
licence during the free period, and so it is difficult to
understand his grievance that a monopolv
had been
S.C.R.
SUPRE.\1E COURT REPORTS
711
created and that he was thereby deprived of his fundamental right to carry on his trade.
Government found
that the importers of soda ash resorted to malpractices
leading to speculation, and
violent
fluctuations,
in
prices of the commodity.
It was open to the Government, and indeed national interests made it their duty,
to intervene
and
regulate
the distribution
of the
commodity in a suitable manner.
That is all that
Government purported to do by the policy statement
to which objection has been taken
by
the
petitioner.
Besides, it is difficult to entertain
the argument
from
the present petitioner that the alleged
monopoly has
affected his right to carry on trade.
In substance no
monopoly has been created and the petitioner's application is entirely misconceived.
The result is the petition
fails and must be dismissed with costs.
Petition No. 377 of 1955 is directed broadly
agaimt
orders of confiscation and sale
passed by the relevant
authorities and the petitioner claims that an appropriate
writ should be issued by this Court calling upon the
said authorities to forbear from giving effect to the said
orders.
We have already mentioned
the material facts
in regard to the confiscation of
the
consignments
of
soda ash of 100 tons
and 20 tons
respectively
which
has given rise to all these proceedings.
Now, the order
dated May 3, 1954, has been passed by the
Controller
of Imports and Exports for Chief Controller of Imports
and Exports and it communicates to the petitioner the
decision of the
Chief
Controller that no
licence
or
customs
clearance
permit
would
be granted
to him
against his application
for
and upto
the
licensing
period July 1953.
The petitioner was,
however,
told
that his
applications for
January-June
1954 licensing
period would be dealt with in the normal course according to the policy contained in the
Red
Book.
Then
the order adds that it had been decided that re-validation of the licences mentioned in Annexure 'A' to the.
petitioner's advocate's letter on
April 20, 1954, could
not be allowed. That is why
the said
licences were
returned to tl)e petitioner. · It is this latter part of the
order by
which the
petitioner feels
aggrieved
and
ag;•',>t which the
petitioner seeks
remedy
by
the
1957
Bhat11agars and Co.
Ltd.
v.
The U n;on of India
Gajendragadkar].
1957
Bhatnagars and Co.
Ltd.
v.
The Union of India
Gafendragadkar ].
712
SUPREME COURT REPORTS
[1957 J
present petlt10n.
The petitioner's ·case is
that,. since
he was granted licences which were to be alive for one
year from FebruJry 13, 1952, the illegal seizure of the
licence and the unauthorised confiscation of the consignments in question caused considerable prejudice to
him. The return of the licences is poor consolation to
the petitioner because the period during
which the
licences were to operate had
already expired.
He,
therefore, claims that the licences should be revalidated
in the sence that the period during which he can operate
upon those licence~ should be suitably extended.
It is
true that if the relevant authorities
were inclined to
revalidate the licences in that sense, it would have been
open to them to do so.
But it is difficult to understand
how the petitioner can invoke the jurdiction
of this
Court under Art. 32 of the . Constitution
for obtaining
this relief.
We do not propose to discuss this matter
elaborately because,
in our opinion, the position in law
is
abundantly clear.
The authorities have found that,
though the licences were obtained by the pet1t10ner in
his name, h~ has been trafficking in these licences, that
the consignments
had
been
ordered
by
another
individual
Messrs.
N.
Jivanlal & Co., that the said
individual holds no licence for import of soda ash and
as such the consignments received
by
the said individual are liable to be confiscated.
If the petitioner's
grievance is that the view taken
by the appropriate
authorities in this matter is erroneous,
that is
not a
matter which can be legitimate! y agitated before us in
a petition under Art. 32.
It ·may perhaps be, as the
learned Solicitor-General
suggested, that the petitioner
may have a remedy by suit for damages but
that is a
matter with which we are not concerned. If the goods
have been seized in accordance
with
law
and they
have- been seized as a result of the findings recorded by
the relevant
authorities
competent
to hold enquiry
under the Sea Customs Act, it is not open to the petitioner to contend that we should ask the authorities to
exercise discretion in favour of the petitioner and allow
his licences a
further lease
of life.
Essentially
the
petitioner's grievance is against the conclusions of fact
reached
by the
relevant
authorities.
If the
said
I
S.C.R.
SUPREME COURT REPORTS
713
conclusions cannot be challenged beJore us in the present
writ petition, the petitioner
would
obviously not be
t'!ititled to any relief of the kind claimed by him.
In
the result, the petition fails and
must
be
dismissed
with costs.
That leaves two more petitions field by the petitioner,
Petitions Nos. 42 of 1956 and 46 of 1956.
These petitions
have been argued before us by Shri
Umrigar
and, on
he half of the petitioner, Shri U mrigar has raised three
points before us.
He contends that the
Import-Export
Act does not apply
to soda ash
and that it is every
citizen's right to import and export this
commodity
without a licence.
If that be the true position, confiscation of the two consignments would be illegal, and so,
he wants an appropriate
writ from this
Court against
·the
Central
Government.
In the alternative, he argues
that
the legislation
which
authorises
the issue
of
licences amounts to a delegated legislation and as such
is invalid.
Again, if legislation is invalid on the ground
alleged, confiscation of the two consignments would be
invalid and the petitioner would be entitled to a writ.
Failing these two contentions,
Shri Umrigar argues
that the conclusion of the relevant authorities that his
clie11t was trafficking in licences
is based
on no legal
evidence and
must,
therefore,
he reversed
by
this
Court and appropriate relief given to him on the basis
that the petitioner had obtained licences bona fide for
his own personal use and the contrary Yiew taken by
the relevant
authorities and the subsequent confiscation
of the consignments
were illegal and 11/tra vires.
We
would now briefly deal with these three points in the
qrder in which they were urged before us
by
Shri
Umrigar.
The first argument is based upon the fact that, while
enacting
The
Imports and
Exports
(Control)
Act,
1947, Act No. XVIII of 1947,
the provisions contained
in r. 84 (2) of the Defence of India Rules have not been
included in the
Act and the contention,
which at best
may be characterised as ingenious, is that the object of
omitting the said provisions while enacting the subsequent Act of 1947 was to release, from
the operation
of the
Import
Act, articles which would have fallen
1957
Bhalriagars nnd C1.
Ltd.
v.
Tht Umo11 of lndi•
Gajrndra1adkar ].
1957
Bhatnsgars and Co.
Ltd.
v.
Tht Union of India
Gajrndratadkar J.
714
SUPREME COURT REPORTS
[195iJ
under the said omitted provisions. R. 84 of the Defence
of India Rules by sub-r. (1) defines export and import.
"Import" means bringing into
British
India by sea.
land or air.
"Export"
means
taking
out of
British
India by sea, land or air.
Then sub-s. (2) provides:
"The Central Government may by a notified order
prohibit or restrict the import or export of all goods or
goods of any specified description,
from
or to any
specified person or class of persons".
Sub-r. (3) then provides:
'The Central
Government may by notified order
make provision for prohibiting, restricting or otherwise
controlling, in all cases or in specified classes of cases,
and subject to such exceptions, if any, as may be made
by or under the order,-
(i) the
import,
export,
carriage
coastwise
or
shipment as ships' stores of all goods or goods of any
specified description ;
(ii) the shipment
of fresh
water on
sea-going
vessels ;
(iii) the bringing into any port or place in British
India of goods of any specified description intended to
be taken out of
British India without being removed
from the ship or conveyance in which
they
are being
carried;"
Shri U mrigar contends that the
import
of soda ash
could have
been
legitimately
regulated
under the
provisions of r. 84, sub-r. (2) but since this sub-rule has
not been enacted under Act XVIII of 1947, all regulations made by the
Central
Government and terms and
conditions laid down
in
regard to the granting of
licences are ultra vires of the Act.
Act XVIII of 1947
gives substantially
the same meaning to
.the words
"export" and "import"
and
the
operative
portion
of the
Act is contained in s. 3 which
is the same as
r. 84, sub-r. (3), of the Defence
of
India
Rules.
In
oder to make his argument plausible,
Shri
Umrigar
•eeks to put a very narrow, artificial and unreasonable
restriction upon s. 3, sub-s. (1) (a) of Act XVIII of 1947.
Before dealing with this argument, however, it would
be convenient to set out the said section as under :
I
S.C.R.
SUPREME COURT REPORTS
715
"3. Powers to
prohibit or
restrict
imports
and
•957
exports :
Bhatna1ars and C1.
(1) The
Central
Government
may,
by
order
;,"'·
published in the official
Gazette, make provision
for Thl Union of India
prohibiting, restricting or otherwise controlling, in all Gtefindragadkar ].
cases or in specified classes of cases, and subject to such
exceptions, 1£ any, as may be made
by or under the
order,-
,.
(a) the
import,
export,
carnage
coastwise
or
shipment as ships' stores
of
goods
of
any specified
description ;
(b) the bringing into any port or place in
India
of goods
of any specified description intended to be
taken out of India without being
removed. from the
ship or conveyance in which they are being carried.
(2) All goods to which any order under sub-section
( 1) applies shall be deemed to be goods of which the
import •or export has
been
prohibited or restricted
under section 19 of the Sea Customs Act, 1878 (VIII of
1878), and all the
provisions of that
Act shall have
effect accordingly, except that section 183 thereof shall
have effect as if for the word "shall'' therein
the word
"may" were substituted.
(3) Notwithstanding
anything
contained
in
the
aforesaid Act, the Centr:il Government may, by order
published in the
official
Gazette, prohibit, restrict
or
impose conditions on the clearance,
whether
for home
consumption or for shipment abroad, of any goods -or
class of goods imported into India."
Shri Umrigar contends that s. 3 (1) (a) cannot apply to
the import of soda ash, because, according to him, it
is only goods
of a specified
description
which
are
imported or exported, carried coastwise or shipped as
ships' stores that fall within the
mischief of the said
provision.
In other words,
he reads
the expression
"carriage coastwise" and "shipment as ships' stores"
as
constituting adjectival clauses governing the words
"import" and "export".
In our opinion, such a construction is wholly
unrea~onable. We have no doubt that this
provision has to be read disjunctively and distributively,
and so read, the import of goods of any specified descrip-
1957
Bhatnagars and Co.
Ltd.
v.
Tht Union of India
Gajtrulragadkar J.
716
• SUPREME COURT REPORTS
[1957]
tion would attract the application of the said provision.
If we bear in· mind the definition of the words "import"
and "export'', it would be obvious that articles
that
are carried coastwise would never fall within the category of either import or export.
The assumption that
the Legislature wanted to release all kinds of goods
from the application of s. 3 ( 1) (a) is, in our opinion, so
completely inconsistent with
the plain
and natural
meaning of the material clause that we have no hesitation in rejecting Shri Umrigar's argument.
If the words
used in the clause are given their natural meaning, it
is clear that the
Legislature must· have felt, in enacting
this Act, that it was unnecessary to continue by reenactment the provisions of r. 84 (2) in the present
Act.
What was specifically
provided in the said rule
is in effect included in s. 3 (1) (a\.
We must, therefore, hold
that
the argument
that no
licence was
required for the import of soda ash
and so all the
orders passed by the appropriate authorities in regard
to the confiscation of the
consignments
are
in valid
must fail.
The next argument is that the material provision is
ultra vires as it amounts to delegated legislation.
The
challenge to the
validity of legislative enactments on
the· ground
of
delegated
legislation
often enough
presents problems which are not easy of solution.
The
recent
history
of
judicial decisions, however,
shows
that, though there is considerable divergence of opinion
in the approach to the question of dealing
with such
a challenge; some principles may
be said to be fairly
well settled.
There is no doubt that legislation
which
is conditional, properly so-called, must be distinguished
from
legislation
which is
delegated.
Shri
Umrigar
concedes that where the Legislature
provides and lays
down principles underlying the provisions of a particular statute
and
also
affords
guidance
for
the
implementation or enforcement of the said principles,
it is open
to
the
Legislature
to leave
the
actual
implementation or enforcement
to its chosen
delegate.
The time when the provision should be implemented,
the period during which it should
be implemented or
the place where it should be applied can, according to
S.C.R.
SUPREME COURT REPORTS
717
him, in appropri:ite cases be validly left by the Legislature to its delegate.. He, however, contends that, in
the impugned Act, the Legislature does not lay down
principle and gives no guidance to the delegate while
leaving the implementation of the statutory provisions
to him and consequently the
validity of the legislative
enactment suffers
from a serious infirmity
on
the
ground that the Legislature has surrendered its legislative power in favour of its delegate.
In dealing with
this narrow ground of challenge, it would be necessary
to consider the preamble
and the
material provisions
of the Act to find out whether questions of policy have
been clearly decided by the
Legislature
and
whether
guidance has been given to the delegate in the matter
of implementing the provisions of the statute.
Unfortunately for Shri Umrigar his challenge to the validity
of the impugned section under the Imports and Exports
Act is completely covered by the decision of this Court
in Harishankar Bagla v. The State of Madhya Pradesh(1 ).
In this case, ss. 3 and
4 of the
Essential
Supplies
(Temporary Powers) Act, 1946, were attacked as ultra
vires on the ground of
delegated
legislation.
This
challenge was repelled.
In repelling the
argument of
delegated
legislation,
Mahajan
Chief
Justice
who
delivered the judgment of the
Court
conceded that
"the Legislature must declare
the policy of the law
and the legal principles which are to control any given
cases and must provide a standard to guide the officials
or
the
body in power to execute the law".
"The
essential legislative
function", the
judgment
proceed~
to add, "consists in the determination or choice of the
legislative policy and of formally enacting that policy
into a binding rule of
conduct".
Then
the learned
Chief Justice referred to the fact
that the Legislature
has laid down such a principle and that •principle is
the maintenance or increase in
supply
of essential
commodities and of securing equitable distribution and
availability at fair prices. It was held that the principle
was clear and it offered
sufficient
guidance
to the
Central Government in exercising its powers under s. 3.
In other words, in
considering the
question
as to
(1) [1955] I S.C.R. 380.
1957
Bhatnagars and C1.
Ltd.
....
The Union of lndi&
Gajendratadkar J.
1957
Bhatttazars and Co.
Ltd.
v.
·r111 Union of India
G ajendra:.adkar J.
718
SUPREME COURT REPORTS
[19571
whether guidance was afforded to the delegate in bringing into operation the material provisions of the
Act
by laying down principles in that behalf,
the
Court
considered the statement of the principles contained in
the preamble to the
Act as well as in the material
provisions of s.