{"id":53206,"date":"1981-11-05T00:00:00","date_gmt":"1981-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bishambhar-dayal-chandra-mohan-vs-state-of-uttar-pradesh-ors-on-5-november-1981"},"modified":"2015-07-19T14:43:59","modified_gmt":"2015-07-19T09:13:59","slug":"bishambhar-dayal-chandra-mohan-vs-state-of-uttar-pradesh-ors-on-5-november-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bishambhar-dayal-chandra-mohan-vs-state-of-uttar-pradesh-ors-on-5-november-1981","title":{"rendered":"Bishambhar Dayal Chandra Mohan … vs State Of Uttar Pradesh & Ors on 5 November, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bishambhar Dayal Chandra Mohan … vs State Of Uttar Pradesh & Ors on 5 November, 1981<\/div>\n
Equivalent citations: 1982 AIR 33, \t\t 1982 SCR (1)1137<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nBISHAMBHAR DAYAL CHANDRA MOHAN AND OTHERS. ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH & ORS.\n\nDATE OF JUDGMENT05\/11\/1981\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nISLAM, BAHARUL (J)\n\nCITATION:\n 1982 AIR   33\t\t  1982 SCR  (1)1137\n 1982 SCC  (1)\t39\t  1981 SCALE  (3)1685\n CITATOR INFO :\n F\t    1982 SC1016\t (13,14)\n R\t    1985 SC 660\t (25)\n RF\t    1987 SC 741\t (16)\n\n\nACT:\n     Uttar  Pradesh   Food  Grains  Dealers  (Licensing\t and\nRestriction on\tHoarding) Order, 1976 and Uttar Pradesh Food\nGrains (Procurement  and Regulation  of Trade)\tOrder, 1978,\nclause (4)  as amended\tby Notification No. P-XXIX-Food-5-5-\n(42)\/80 dated  April 21,1981-Teleprinter  Message issued  by\nthe  State   Government\t dated\t March\t31,  1981  regarding\nenforcement  of\t  the  Orders-Constitutional   validity\t of-\nArticles 14, 19(1)(g), 162, 300A and 301 of the Constitution\nof India.\n     Constitution of  India, Article  32-Jurisdiction of the\nSupreme Court to  investigate into facts, explained.\n     Words and\tphrases-\"Law\" occurring\t in Article 300A \"at\nany time\" and \"reasonable restriction\", meaning of.\n\n\n\nHEADNOTE:\n     In exercise  of the  powers vested\t under the Essential\nCommodities Act, 1951, the State Government of Uttar Pradesh\nissued two  orders, namely (1) the Uttar Pradesh Food Grains\nDealers (Licensing  and Restriction on Hoarding) Order, 1976\nand (2)\t the Uttar  Pradesh  Food  Grains  (Procurement\t and\nRegulation of  Trade) Order 1978. By its teleprinter message\ndated March  31, 1981  to all the Regional Food Controllers,\nthe State Government issued certain further instructions for\neffective enforcement  of the  two Orders  and in particular\nregulating the inter-district and outside the State-movement\nof wheat  by traders  on private  account. By a Notification\nNo. P-XXIX-Food-5-5(42)\/80  dated April\t 21,1981, clause (4)\nof the\t1978 Order,  was amended providing that no wholesale\ndealer, commission  agent, or a retailer shall have in stock\nwheat more  than 250  quintals, 250 quintals and 20 quintals\nrespectively, at  any time,  since it was of opinion that it\nwas necessary  or  expedient  so  to  do  for  securing\t the\nequitable distribution\tand availability  of  foodgrains  at\nfair prices.\n     Pursuant to  the powers  vested  in  them,\t the  Senior\nMarketing Inspector and the Chief Marketing Inspector, Agra,\nintercepted and\t seized the  trucks laden  with wheat of the\npetitioners who are wholesale dealers of foodgrains from the\nUnion Territory\t of Delhi  and\tthe  States  of\t Punjab\t and\nHaryana at  the check  post at\tSaiyan on the border between\nthe States  of Uttar  Pradesh and  Madhya Pradesh, and after\nbringing them  back to\tthe purchase  point at Agra unloaded\nthe wheat  from the said trucks. While the petitioners moved\nan application\tfor the\t release of  the seized wheat before\nthe Additional\tDistrict Magistrate  (Civil Supplies), Agra,\nthe Marketing Inspectors not only lodged First Information\n1138\nReports but  obtained an  interim order\t on May 23, 1981 for\nthe sale of the seized wheat as it was subject to speedy and\nnatural decay.\tThe seized  wheat had  been purchased by the\nState Government  on Government\t account at  the procurement\nprice and the sale proceeds were credited into the treasury.\n     The  petitioners  challenged  the\tteleprinter  message\ndated March  31, 1981  and the\tNotification dated April 21,\n1981 on\t the following\tgrounds: (1) The Notification fixing\nthe maximum  limit of  wheat permitted\tto be possessed by a\nwholesale  dealer   at\t250  quintals,\tat  a  time,  is  an\nunreasonable restriction on the freedom of trader guaranteed\nunder Article  19(1)(g) of the Constitution; (2) there is no\ndistinction made between a wholesale dealer and a commission\nagent in as much as the maximum limit of wheat allowed to be\npossessed by  them is the same, i.e., 250 quintals at a time\nand the\t fixation of  such limit  in the case of a wholesale\ndealer is  arbitrary, irrational  and  irrelevant  and\tthus\nviolative  of  Article\t14  of\tthe  Constitution;  (3)\t the\ninstructions  conveyed\t by  the  State\t Government  by\t its\nteleprinter  message   dated   March   31,   1981,   placing\nrestrictions on\t movement of  wheat by\ttraders\t on  private\naccount from  the State\t of U.P. to various other States and\non inter-district  movement of\twheat within the State, were\nviolative of their fundamental rights under Article 19(1)(g)\nand Article  301 of the Constitution; (4) the seizure of the\nconsignments of the wheat, while they were in transit in the\ncourse of  inter-State trade  and commerce  from  the  Union\nTerritory of  Delhi and\t the States of Punjab and Haryana to\nvarious destinations in the States of Maharashtra and Madhya\nPradesh, was without \"the authority of law\" and in violation\nof Article  300A of  the Constitution;\t(5) the\t restriction\nmust be\t by \"law\"  or by  an \"order\" having the force of law\nand not\t by recourse to the executive authority of the State\nunder Article  162 of  the  Constitution,  that\t is,  by  an\nexecutive action.  The\tteleprinter  message  of  the  State\nGovernment dated  March 31,  1981 on  the basis of which the\nseizures were  effected in truth and substance, had no legal\nsanction and  cannot be\t construed to  be a  notified  order\nwithin the  meaning of sub-section (1) read with sub-section\n(5) of\tsection 3  of the  Essential Commodities Act; it was\nnothing but  an executive  direction.  No  executive  action\nwhich operates to the prejudice of the citizens can be taken\nwithout the authority of law. The seizures effected were not\nin  compliance\t with  the  instructions  contained  in\t the\nteleprinter message  and not  for breach  of the two control\nOrders and,  therefore, it  was nothing\t but  a\t \"colourable\nexercise\" of  power. The  real purpose\tof the\tseizure\t was\nprocurement of wheat in furtherance of the directives of the\nCentral Government  without any\t legal sanction,  since\t the\nfarmers\t were  not  willing  to\t sell  their  wheat  at\t the\nprocurement  price;  and  (6)  under  sub-section  2(ii)  of\nsection 6A  of the  Act there  being no\t control  price\t for\nwheat, the  wheat should have been sold by public auction by\nthe Additional\tDistrict Magistrate while passing an interim\norder.\n     Dismissing the petitions, the Court\n^\n     HELD:  1:1.   The\trestriction  imposed  by  the  State\nGovernment  on\t wholesale  dealers   of  wheat\t is  neither\narbitrary nor  is of  an excessive  nature  beyond  what  is\nrequired in  the national  interest.  To  check\t speculative\ntendencies  of\t the  wholesale\t  traders  and\t others\t who\nmanipulate the\tmarket by  withholding stocks of a commodity\nand to\tobviate blackmarketing, the stock limit of wheat was\nfixed for wholesale dealers at 250 quintals at a time, as in\nthe case  of a\tcommission agent,  the underlying idea being\nthat the wholesale dealers should be allowed to\n1139\ncontinue their\ttrading activities within reasonable limits.\nThe fixation  of stock\tlimit at  250 quintals\timplies that\nwholesale dealers  can have  at any time, in stock, a wagon-\nload of\t wheat. The  words \"at\tany time\" mean \"at any given\ntime\", which  means that  a wholesale dealer should not have\nin stock  more than  250 quintals  at a\t time. But  there is\nnothing to  prevent a  wholesale dealer from entering into a\nseries of transaction during the course of the day. [1173 A-\nE]\n     1:2. The  State Government had adopted various measures\nin the\tinterest of  the general  public for  the control of\nproduction,  supply  and  distribution\tof,  and  trade\t and\ncommerce in, essential commodities. The Order fixing a stock\nlimit introduces  a system of checks and balances to achieve\nthe object  of the legislation, that is, to ensure equitable\ndistribution and  availability of  essential commodities  at\nfair prices.  Looking  to  the\tprevailing  conditions,\t the\nimposition  of\tsuch  restrictions  satisfies  the  test  of\nreasonableness. The  fixation of  such stock  limit  is\t not\narbitrary or irrational having no nexus to the object sought\nto be achieved and is, therefore, intra vires of Article 14.\nThe limitation\timposed fixing a stock limit for a wholesale\ndealer at  250 quintals\t is also  a  reasonable\t restriction\nwithin the  meaning of\tArticle 19(6)  of the  Constitution.\n[1174 A-D]\n     2:1. The  teleprinter message  No.\t PP-1061\/XXIX.Food-5\ndated 31st  March, 1981\t was  in  the  nature  of  executive\ninstruction of\tthe State  Government to  the Regional\tFood\nControllers of\tthe various  regions to be more vigilant and\nto secure  due observance of the control orders. [1156 B, E-\nF, 1163 C]\n     2:2. The  instructions conveyed by the State Government\nby the impugned teleprinter message imposing the requirement\nfor the\t making of  an endorsement  by the  Deputy Marketing\nOfficer or  the Senior\tMarketing Officer  or  the  physical\nverification  of  stocks  of  wheat  during  the  course  of\ntransit, are  not a  'restriction' or  an 'intrusion' on the\nfundamental right  to carry  on trade or business guaranteed\nunder Article  19(1)(g) or on the freedom of trade, commerce\nand intercourse\t under Article\t301. These  are nothing\t but\nregulatory measures to ensure that the excess stock of wheat\nheld by\t a wholesale  dealer, commission agent or a retailer\nis not\ttransported to a place outside the State or from one\ndistrict  to   another.\t Even\tif  these  requirements\t are\nconsidered to  be a  'restriction' on  inter-State or intra-\nState trade,  that is,\tacross the State or from one part of\nthe State  to another,\tthe limitation\tso  imposed  on\t the\nenjoyment of  the right cannot be considered to be arbitrary\nor of  an excessive  nature and\t thus violative\t of  Article\n19(1)(g) or  Article 301 of the Constitution. There being no\nban on\tthe export  of wheat from the State of Uttar Pradesh\nto various  other States  or from  one district\t to  another\nwithin the State, subject to the making of an endorsement by\nthe Deputy Marketing Officer or the Senior Marketing Officer\nconcerned, the\tPetitioners who\t are  wholesale\t dealers  of\nfoodgrains in  the State  of Uttar  Pradesh are,  therefore,\nfree to\t carry on  their  business  within  the\t permissible\nlimits, that  is, they\tmay carry on their trade or business\nor enter  into inter-State  or intra-State  transactions  of\nwheat subject to the stock limit of 250 quintals, at a time.\n[1174 D-H, 1175 A-B]\n     2:3. The teleprinter message dated March 31, 1981 was a\ndirect sequel  to the  Centre's directives  contained in its\nearlier teleprinter message and intended or meant to achieve\nthree main  objectives, namely, (i) to provide price support\nin wheat  to purchasers with a view to sustain, maintain and\nmaximise the pro-\n1140\ncurement of  wheat; (ii)  to  prevent  hoarding\t and  black-\nmarketing; and\t(iii) to  provide for equitable distribution\nand availability  of wheat  at fair  prices. The  directions\nwere  obviously\t  meant\t to   subserve\tthe  object  of\t the\nlegislation  and   were\t in   public  interest.\t  The  State\nGovernment was\tcommitted to  provide price support in wheat\nto producers  and hence\t to maximise  procurement of  wheat,\nthere is  nothing unusual  on the  State Government  issuing\nsuch executive instructions. [1156 E-F, 1160 D-E]\n     2:4.  Even\t  assuming  that  the  impugned\t teleprinter\nmessage is  not relatable  to the  control Orders, the State\nGovernment undoubtedly\tcould, in  exercise of the executive\npower of  the State,  introduce a  system of verification on\nmovement of wheat from the State of Uttar Pradesh to various\nother States  at the  check post  on the  border  and  place\nrestrictions on\t inter-district movement of wheat by traders\non private account within the State. [1156 E-F]\n     Ram Jawaya\t Kapur v.  State of  Punjab [1955] 2 SCR 225\nand Naraindas  Indurkhya v.  State of Madhya Pradesh & Ors.,<\/a>\n[1974] 3 SCR 624, explained and followed.\n     3:1. The  State Legislature is competent to enact a law\non the\tsubject covered\t by Entry  33, List  III, regulating\ntrade and  commerce in,\t and the  production, and supply and\ndistribution of \"foodstuffs\". The Essential Commodities Act,\n1955 was  enacted by  Parliament in  exercise of  concurrent\njurisdiction  under  Entry  73,\t List  II,  of\tthe  Seventh\nSchedule to  the Constitution as amended by the Constitution\n(Third Amendment) Act, 1954. The exercise of such concurrent\njurisdiction would  not deprive the State Legislature of its\njurisdiction thereunder.  The executive\t power of  the State\nwhich is  coextensive with  the legislative power is subject\nto the\tlimitation contained  in Article  162 which  directs\nthat in\t any matter with respect to which the legislature of\na  State  and  Parliament  have\t power\tto  make  laws,\t the\nexecutive power\t of the\t State\tshall  be  subject  to,\t and\nlimited by,  the executive  power expressly conferred by the\nConstitution or by any law made by Parliament upon the Union\nof authorities thereof. [1158 F-H, 1159 A-B]\n     3:2. The  State in\t exercise of its executive powers is\ncharged with  the duty and the responsibility of carrying on\nthe general  administration of\tthe State.  So long  as\t the\nState Government  does not  go against the provisions of the\nconstitution of\t any law,  the width  and amplitude  of\t its\nexecutive power\t cannot be  circumscribed. If  there  is  no\nenactment  covering   a\t particular  aspect,  certainly\t the\nGovernment can\tcarry on  the administrative  directions  or\ninstructions, until  the legislature  makes a  law  in\tthat\nbehalf.\t Otherwise   the  administration  would\t come  to  a\nstandstill. [1157 B-C]\n     3:3. The  executive power\tof \"search and seizure\" is a\nnecessary concomitant  of  a  welfare  State.  It  tends  to\npromote the well being of the nation. Many questions arising\nin the\tfield of  search and  seizure are factual in nature,\ninvolving varying degrees of difference among the infinitely\ndiverse facts.\tIt is  a limitless area where not only every\nfactual variation  presents a  new constitutional  question,\nbut it\tis a peculiar field in which the decisions of courts\ndo not\thelp in\t clarifying the\t law. The  decisions in\t the\nfield are  of little precedental value, because the more the\ncases that  are\t decided  the  more  issues  arise,  through\npossible factual variation. [1159 B-E]\n1141\n     4:1. The  quintessence of\tthe Constitution is the rule\nof the\tlaw. The  State or  its\t executive  officers  cannot\ninterfere with the rights of others unless they can point to\nsome specific rule of law which authorises their acts. [1161\nA]\n     State of  Madhya Pradesh v. Thakur Bharat Singh,<\/a> [1967]\n2  SCR\t454,  Satwant  Singh  Sawhney  v.  Dr.\tRamarathnam,\nAssistant Passport Officer, Government of India, New Delhi &\nOrs.,<\/a> [1967]  3 SCR  525 at 542; Smt. Indira Nehru Gandhi v.\nShri Raj Narain,<\/a> [1976] 2 SCR 347 at 524, reiterated.\n     4:2. The  Essential Commodities  Act, 1955\t is a  \"law\"\nwithin the  meaning  of\t Article  302  of  the\tConstitution\nimposing reasonable  restrictions on  the right\t to carry on\ntrade and  commerce as\tguaranteed by  Article 19(1)(g)\t and\nArticle 301 of the Constitution. The object of the Act is to\nprovide, in  the interest  of the  general  public  for\t the\ncontrol, production,  supply and  distribution of, and trade\nand commerce in, certain essential commodities. [1161 D-E]\n     5. From the point of view either of Entry 54 List II or\nof Article 301 of the Constitution, the State Legislature is\ncompetent to  set up  the check\t posts and  barriers on\t the\nState's borders,  designed and\tmeant to  prevent evasion of\nsales tax  and other  dues. Just  as inter-State  trade\t and\ncommerce must  pay its\tway  and  be  subject  to  taxation,\npersons engaged in inter-state trade or commerce are equally\nsubject to  all regulatory  measures.  The  check  posts  or\nbarriers set  up by the State Government under section 28 of\nthe U.P.  Sales Tax  Act, 1948, which is legally accepted as\nvalid and also considered not a restriction or impediment to\nthe freedom of trade, commerce and intercourse granted under\nArticle 301  of the  Constitution, can certainly be utilised\nas a  machinery for due observance of the laws, for example,\nfor verification and control of movement of wheat by traders\non private  account from  the  State  of  Uttar\t Pradesh  to\nvarious other States.\n\t  [1159 F, 1160 B-D]\n     6:1.  The\tfundamental  right  to\tcarry  on  trade  or\nbusiness guaranteed under Article 19(1)(g) or the freedom of\ninter-State trade,  commerce and  intercourse under  Article\n301 of\tthe  Constitution,  has\t its  own  limitations.\t The\nliberty of  an\tindividual  to\tdo  as\the  pleases  is\t not\nabsolute. It  must yield  to the  common good.\tAbsolute  or\nunrestricted individual\t rights do  not and  cannot exist in\nany modern  State. There  is no\t protection  of\t the  rights\nthemselves  unless   there  is\ta  measure  of\tcontrol\t and\nregulation of the rights of each individual in the interests\nof all.\t Whenever such a conflict comes before the Court, it\nis its\tduty to\t harmonise the\texercise  of  the  competing\nrights. The  Court must\t balance the  individual's rights of\nfreedom of  trade under\t Article 19(1)(g) and the freedom of\ninter-State trade  and commerce under Article 301 as against\nthe national  interest. Such a limitation is inherent in the\nexercise of those rights. [1164 E-H]\n     6:2. Under\t Article 19(1)(g)  of  the  Constitution,  a\ncitizen has  the right\tto carry on any occupation, trade or\nbusiness and  the only\trestriction on this unfettered right\nis the\tauthority of  the  State  to  make  a  law  imposing\nreasonable restrictions under clause (6). [1165 A]\n     6:3. The  expression \"reasonable restriction\" signifies\nthat the  limitation imposed on a person in enjoyment of the\nright should  not be  arbitrary or  of an  excessive nature,\nbeyond what  is required in the interests of the public. The\ntest  of  reasonableness,  wherever  prescribed,  should  be\napplied to each individual\n1142\nstatute impugned,  and\tno  abstract  standard,\t or  general\npattern of  reasonableness can be laid down as applicable in\nall cases.  The restriction which arbitrarily or excessively\ninvades the  right cannot  be said to contain the quality of\nreasonableness\tand  unless  it\t strikes  a  proper  balance\nbetween the  freedom guaranteed in Article 19(1) (g) and the\nsocial control\tpermitted by  clause (6)  of Article  19, it\nmust be held to be wanting in that quality. [1165 B-D]\n     6:4. Several  steps taken,\t in the\t instant case,\tlike\nprevention of  movement of  stock of  wheat to various other\nStates, movement  of wheat  from  one  district\t to  another\nwithin\tthe   State  only  after  the  verification  of\t the\ntransaction and\t due endorsement  by  the  Deputy  Marketing\nOfficer or  the Senior\tMarketing Officer concerned and also\nthe physical  verification at  the check post on the State's\nborders etc.  were designed to prevent a price rise in wheat\nin the\tState of  Uttar Pradesh\t and to\t prevent outflow  of\nwheat from  the State  to various  other States and from one\ndistrict to  another district  within the  State. The  whole\nobject\twas   to  ensure   that\t the  wholesale\t dealers  in\nfoodgrains did not corner stocks of wheat for the purpose of\nspeculation, and  hence the  steps taken were reasonable and\nin the\tinterests of  the general public. If, therefore, the\nseizure can  be justified  on the basis of any valid law, it\ncannot be held to be illegal. [1165 D-H]\n     7:1.  Article   301  imposes   a  limitation   on\t all\nlegislative power  in order  to secure\tthat trade, commerce\nand intercourse\t throughout the\t territory of India shall be\nfree. Although\tArticle 301  guarantees that trade, commerce\nintercourse throughout\tthe country shall be free, the right\nto carry on inter-State trade and commerce may be subject to\nreasonable restrictions\t in the\t interests  of\tthe  general\npublic. [1165 A, 1166 A, C]\n     7:2. The  word 'free'  in Article\t301  does  not\tmean\nfreedom\t from\tlaws  or   from\t regulations.\tArticle\t 301\nguarantees  freedom   of  trade,  commerce  and\t intercourse\nthroughout the\tcountry from  any State\t barriers. The whole\nobject was  to bring about the economic unity of the country\nunder a\t federal structure, so that the people may feel that\nthey are  members of one nation. One of the means to achieve\nthis object  is to guarantee to every citizen in addition to\nthe  freedom   of  movement  and  residence  throughout\t the\ncountry, which\tis achieved  by Article\t 19(1)(d) and (e) is\nthe freedom  of movement  or passage of commodities from one\npart of\t the country  to another.  This\t freedom  of  trade,\ncommerce and  intercourse throughout the country without any\n\"State barriers\"  is not  confined to  inter-State trade but\nalso including\tintra-State trade  as well.  In other words,\nsubject to  the provisions of Part XIII, no restrictions can\nbe imposed upon the flow of trade, commerce and intercourse,\nnot only  between the State and another, but between any two\npoints within  the territory  of  India\t whether  any  State\nborder has to be crossed or not. [1166 D-H]\n     7:3.  The\t regulatory  measure  or  measures  imposing\ncompensatory taxes  do not  come within\t the purview  of the\nrestrictions contemplated  by Article  301.  The  regulatory\nmeasures should,  however, be  such as\tdo  not\t impede\t the\nfreedom of trade, commerce and intercourse. [1166 H, 1167 A]\n     8:1. In  view of  the provisions  of clause  (3) of the\n1976 Order  read with  clauses (4)  & (6) of the 1978 Order,\nthe validly  seized excess  stock of  wheat lying  with such\ndealer, that  is, a  wholesale dealer, commission agent or a\nretailer, in  truth and\t substance, became their \"unlicensed\nstock\". Here,  if really the Delhi traders had purchased the\nexcess stock of wheat from wholesale dealers, com-\n1143\nmission agents\tor retailers  in the State of Uttar Pradesh,\nas is  alleged, it  is possible\t to contend that there was a\ncontravention of  the provisions  of clause  (4) of the 1978\nOrder.\tThe   question\twhether\t the  seizure  was  for\t any\ncontravention of any order issued under section 3 of the Act\nhas to\tbe determined by the Additional District Magistrates\n(Civil Supplies),  Agra, on  the  evidence  adduced  by\t the\nparties\t before\t him.  The  facts  being  controverted,\t the\npetitioners have  no right to relief under Article 32 of the\nConstitution. [1168 D-H, 1169 A-B]\n     8:2. Supreme  Court can  neither act on documents which\nare yet\t to be\tproved\tnor  can  they\tpronounce  upon\t the\ngenuineness of\tthe transactions  covered by  them or record\nany finding on the basis of the documents when the facts are\nin dispute. [1169 E]\n     8:3. Normally,  it is not the function of Supreme Court\nto investigate into facts in proceedings under Article 32 of\nthe Constitution  when they  are controverted with a view to\ndiscerning the\ttruth. The  matter must, in a situation like\nthis,  be   left  to   the  fact-finding   body.   For\t the\nestablishment of their right to relief under Article 32, the\npetitioners must  establish the\t necessary facts  before the\nsaid Additional District Magistrate in the proceedings under\nsection 6A of the Essential Commodities Act. If they fail to\nget relief in such proceedings, their obvious remedy lies in\na suit for damages for wrongful seizure. [1171 A-C]\n     9:1. The  State Government cannot while taking recourse\nto the executive power of the State under Article 162 of the\nConstitution deprive  a person\tof his\tproperty. Such power\ncan be\texercised only by authority of law and not by a mere\nexecutive fiat\tor order. Article 162 being subject to other\nprovisions of  the Constitution,  is necessarily  subject to\nArticle 300A. [1169 F-G]\n     Wazir Chand  v. The State of Himachal Pradesh,<\/a> [1955] 1\nSCR 408;  Bishan Das  and Others  v. The State of Punjab and\nOthers,<\/a> [1962] 2 SCR 69, referred to.\n     9:2. The word 'law' in the context of Article 300A must\nmean an Act of Parliament or of a State Legislature, a rule,\nor a  statutory order,\thaving the  force of  law,  that  is\npositive or State-made law. [1169 G-H]\n     9:3. The  effect of the Constitution (Fourth) Amendment\nAct, 1955,  is that  there can\tbe no  'deprivation'  unless\nthere is  extinction of\t the right  to\tproperty.  Here,  no\ndoubt, the wheat had to be sold, as it was subject to speedy\nand natural  decay, but\t the petitioners are entitled to the\nsale proceeds,\tif ultimately  it is found by the Additional\nDistrict Magistrate  (Civil Supplies),\tAgra, that there was\nno contravention  by them of an order issued under section 3\nof the\tAct. It\t is true that the seizure was with intent to\nconfiscate under  section 6A  of the Act, but that would not\nmake the  seizure illegal,  if, ultimately, it is found that\nthere was  contravention of  an order issued under section 3\nof the\tAct. If the facts were not in controversy and if the\npetitioners were  able to  prove  that\tthere  was  wrongful\nseizure of wheat by the State Government of Uttar Pradesh at\nthe check post of Saiyan on the border, while in transit, in\nthe course  of inter-State trade and commerce from the Union\nTerritory of  Delhi, perhaps,  they would be entitled to the\nreturn of  the seized  wheat, or, in the alternative, to the\npayment of price thereof. [1170 D-H, 1171 A]\n1144\n     9:4. The question that the seizures were in reality for\nprocurement of\twheat in furtherance of the directive of the\nCentral Government,  and not  for breach  of the two Control\nOrders\tand,  therefore,  were\tnothing\t but  a\t 'colourable\nexercise of  power', is\t dependent on  facts to\t be found on\ninvestigation. Further,\t the question  that there  being  no\ncontrol price  for wheat, the wheat should have been sold by\npublic auction,\t is again  a question  that must  be  raised\nbefore the  Additional District Magistrate (Civil Supplies),\nAgra, in the proceedings pending before him under section 6A\nof the Act. [1171 C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:\n<\/p>\n
Food Grains Matters.\n<\/p>\n
A. Movement by Road:\n<\/p>\n
     (a)  WP. Nos.2907-2908,3234,  3238-39,3164,3254,  3630-
\n\t  31,3686, 3783, 3816, 4816, 4929-31, 4836-38, 4996-
\n\t  5001, 5051-54, 5089-93, 5136-46, 5247, 3160, 3634,
\n\t  4494,4616,4967, 5362-71, 5416-20, 5447-50,5716-17,
\n\t  5840,6015,6587-89 & 6609-14\/81.<\/p>\n
     (b)  WP. Nos. 5062,5157-58,5451 & 5615-17\/81.\n<\/p><\/blockquote>\n
     (c)  WP Nos. 5097,5042, 5098, 5017, 5214 & 6135-36\/81 &
\n\t  7003\/81.\n<\/p><\/blockquote>\n
     (d)  WP. Nos.3421,\t 3407, 3408-13, 3422, 3536, 3561-64,
\n\t  5238,13824, 5466,  5544, 6009,  6130-31, 6572-74 &
\n\t  6582-83\/81.\n<\/p><\/blockquote>\n
     (e)  WP. Nos.  4904-4905, 5080, 5094, 5239-45, 5358-59,
\n\t  5395, 5483,  5484-88, 5489-92,  5734-39, 6584-86 &
\n\t  6817-21\/81.\n<\/p><\/blockquote>\n
     (f)  WP. Nos.4960-62,  4958-59, 5129-33, 5219-20, 5331-
\n\t  33, 5518-19, 5526, 5428-31 & 5527\/81.\n<\/p><\/blockquote>\n
     (g)  WP. Nos.  4526, 4926,\t 4995, 5046,  5048-50, 5100,
\n\t  5101,\t 5136-46,5402-11,  5436-38,  5560,  5520-21,
\n\t  5562,5558, 5556,  5559,5550,5546-47,\t5552,  5555,
\n\t  5553-54,5511, 5482, 5618-19,5809-20,6132-33, 6244,
\n\t  6273-75,6267-72, 5512-14,  5515,6570 and  5562\/81,
\n\t  7027-29 and 7032-34\/81.\n<\/p><\/blockquote>\n
     (h)  WP.  Nos.5221,5380-83,5129-33,5421-22,5440,  5507-
\n\t  10, 5662,  5806-5807, 6245,  6246, 6265,  6398 and
\n\t  6684\/81.\n<\/p><\/blockquote>\n
1145<\/span><\/p>\n
     (i)  WP. Nos.  3592, 3353,\t 5396, 6016,  6247-48, 6616,
\n\t  6668 and 6798\/81.\n<\/p><\/blockquote>\n
     (j)  WP. Nos.5003,\t 4453, 4455-56,5346-48,4955,5082-89,
\n\t  5577-80, 5581 and 5724\/81.\n<\/p><\/blockquote>\n
     (k)  WP. Nos.3489 and 4293\/82.\n<\/p><\/blockquote>\n
     (l)  WP. No. 4818\/81.\n<\/p><\/blockquote>\n
     (m)  WP. Nos.2916,2932,3242,  3297-3302,3334-43,  3475,
\n\t  4098-4100, 4136,  4304, 4187,\t 4777, 5007-17,5027-
\n\t  34, 5352-55, 5473-79, 5604-5608, 5740-42, 5743-44,
\n\t  5821, 6012-13 and 5583-92\/81.\n<\/p><\/blockquote>\n
     (n)  WP Nos. 5391 and 5525\/81.\n<\/p><\/blockquote>\n
     (o)  WP No. 5443\/81.\n<\/p><\/blockquote>\n
     (p)  WP. Nos. 5444,5663 and 6266\/81.\n<\/p><\/blockquote>\n
     (q)  WP. No. 5464\/81.\n<\/p><\/blockquote>\n
     (r)  WP. Nos. 5451 and 5564-66\/81.\n<\/p><\/blockquote>\n
     (s)  WP. No. 5807\/81.\n<\/p><\/blockquote>\n
     (t)  WP. Nos.5571-75, 5622-29 and 6014\/81.
\n     (u)  WP. Nos.5718-19\/81 and 6943\/81.\n<\/p><\/blockquote>\n
     (v)  WP. No. 5568-69\/81.\n<\/p><\/blockquote>\n
B. Restriction on Quantum of Food-Grains which can be held:\n<\/p>\n
     (a)  WP. Nos.  2932, 3776-3780, 4140-45, 4326-28, 4876-
\n\t  4902, 4670-78 and 5473-79\/81.\n<\/p><\/blockquote>\n
     (b)  WP. No. 5480\/81.\n<\/p><\/blockquote>\n
     (c)  WP. Nos. 4955-56,5330,5392,3823 and 6278\/81.\n<\/p><\/blockquote>\n
     (d)  WP. Nos. 5529-30\/81.\n<\/p><\/blockquote>\n
     (e)  WP. Nos.5531-32\/81.\n<\/p><\/blockquote>\n
1146<\/span><\/p>\n
     (f)  WP. Nos. 5841-50\/81.\n<\/p><\/blockquote>\n
     (g)  WP. Nos. 5656-58\/81.\n<\/p><\/blockquote>\n
     (Under Article 32 of the Constitution of India)
\n\t  Hari Sarup,  M.N. Phadke,  Soli J.  Sorabjee, J.P.
\n     Goyal and\tC.M. Lodha, (M\/s. B. Datta, R.A. Gupta, Miss
\n     Kamini Jaiswal,  Rajiv Dutta,  Manoj  Swarup  and\tMiss
\n     Lalita Kohli, R.S. Sharma, R.K. Jain, Pankaj Jain, P.K.
\n     Jain,  K.K.   Jain,  K.B.\tRohatgi,  B.R.\tKapur,\tB.S.
\n     Tawakley, S.R.  Srivastava,  N.N.\tSharma,\t A.K.  Goel,
\n     Mitter and\t Mitter and  Co., S.K.\tJain,  Rajesh  Jain,
\n     Mukul Mudgal,  M. Qamaruddin,  Mrs. M. Qamaruddin, Anis
\n     Suhrawardhy, A.P.\tMohanty, K.K.  Gupta,  Ravi  Prakash
\n     Gupta, C.K.  Ratnaparkhi, S.C. Birla, M.C. Dhingra, and
\n     S.K. Gambhir for the appearing Petitioners.
\n\t  G.N. Dikshit,\t O.P. Rana,  Mrs. Shobha Dixit, R.N.
\n     Poddar, G.\t Gopalakrishan, A.V.  Rangam,  B.D.  Sharma,
\n     D.P. Mohanty and A. Shroff for the Respondents.<\/p><\/blockquote>\n
     The Judgment of the Court was delivered by
\n     SEN, J.  The  issue  in  this  and\t the  connected\t 505
\npetitions under\t Art. 32  of the  Constitution\tis  of\tfar-
\nreaching significance.\tIt raises  questions of\t the highest
\nimportance as to the scope and extent of the executive power
\nof the State under Art. 162 of the Constitution, in relation
\nto regulation  and control  of trade  and commerce  in food-
\nstuffs. It  necessarily involves  a claim by the petitioners
\nwho are wholesale dealers of foodgrains that the exercise of
\nsuch governmental  power conflicts  with the rule of law and
\nis in  flagrant violation  of the freedom of trade, commerce
\nand  intercourse   guaranteed  under   Art.   301   of\t the
\nConstitution and the fundamental right to carry on trade and
\nbusiness  guaranteed   under  Art.   19\t (1)   (g)  of\t the
\nConstitution. These  petitions fall  into two  distinct\t and
\nseparate  categories,\tone  by\t the  wholesale\t dealers  of
\nfoodgrains  from  the  Union  Territory\t of  Delhi  and\t the
\nneighbouring States  of Punjab and Haryana, and the other by
\nthe wholesale  dealers of foodgrains from the State of Uttar
\nPradesh.\n<\/p>\n
1147<\/span><\/p>\n
     The short question that falls for consideration in some
\nof the\twrit petitions\tby wholesale  dealers of  foodgrains
\nfrom the  Union Territory  of Delhi  and the State of Punjab
\nand Haryana is whether the action of the State Government of
\nUttar Pradesh  in setting  up check-posts on its borders and
\nthe stoppage  and seizure  of wheat  in transit\t through the
\nState of  Uttar Pradesh\t during the  course  of\t inter-State
\ntrade and  commerce to various destinations in the States of
\nMadhya Pradesh\tand Maharashtra\t at the check-post at Saiyan
\non the border between the States of Uttar Pradesh and Madhya
\nPradesh on  the strength of its instructions conveyed by its
\nteleprinter message  dated March  31, 1981, was in violation
\nof Art. 301 of the Constitution.\n<\/p>\n
     In a  majority  of\t the  writ  petitions  by  wholesale
\ndealers from  the State\t of  Uttar  Pradesh,  two  questions
\narise, (1)  whether Notification No. P-XXIX-Food-5-5 (42)\/80
\ndated April  21, 1981,\tissued by  the State  Government  of
\nUttar Pradesh,\tin exercise  of the powers conferred by s. 3
\nread with  s. 5\t of  the  Essential  Commodities  Act,\t1955
\n(hereinafter referred  to as  the Act), by which cl.4 of the
\nUttar Pradesh  Foodgrains  (Procurement\t and  Regulation  of
\nTrade) Order,  1978, has  been amended,\t providing  that  no
\nwholesale dealer, commission agent or retailer shall have in
\nstock wheat  more than\t250 quintals,  250 quintals  and  20
\nquintals  respectively,\t  at   any   time,   Infringes\t the
\nfundamental right  to carry  on trade or business guaranteed
\nunder Art.  19 (1)  (g) and  (2)  whether  the\tgovernmental
\ninstructions conveyed by its teleprinter message dated March
\n31, 1981,  placing restrictions\t on  movement  of  wheat  by
\ntraders on  private account  from the State of Uttar Pradesh
\nto various  other States  and on  inter-district movement of
\nwheat within  the State,  were in  breach of the fundamental
\nright under  Art. 19  (1) (g)  read with  Art.\t301  of\t the
\nConstitution.\n<\/p>\n
     The following are the facts and circumstances so far as
\nnecessary  to  show  as\t to  how  the  legal  questions\t are
\npresented. It  would be\t convenient first  to deal  with the
\nwrit petitions filed by the whole-sale dealers of foodgrains
\nfrom the  Union Territory  of Delhi and the States of Punjab
\nand Haryana  seeking a\tdeclaration that the impugned action
\nof the\tState Government  of Uttar  Pradesh  in\t setting  up
\ncheck-posts on\tthe  borders  of  the  State  and  directing
\nseizure of  wheat in  transit  through\tthe  State,  on\t the
\nstrength of  the impugned  teleprinter\tmessage,  conflicted
\nwith the  guarantees of inter-State trade and commerce dealt
\nwith by Art, 301 of the Constitution.\n<\/p>\n
1148<\/span><\/p>\n
     Facts in  all these cases are more or less similar. The
\npetitioners who are wholesale dealers of foodgrains from the
\nUnion Territory\t of Delhi  and\tthe  States  of\t Punjab\t and
\nHaryana allege\tthat between April 29-30, 1981, they, acting
\nas commission  agents, purchased  wheat from the open market
\nin Delhi  and elsewhere and despatched the same by trucks to
\nvarious destinations in the State of Maharashtra and to some
\nplaces in  the State  of Madhya\t Pradesh. According to them,
\nthe trucks  laden with\twheat were  accompanied by  relative
\nbills, goods receipts, inter-State transit passes etc., duly
\ncrossed the check-post at Faridabad and were also allowed to
\ncross the  check-post at  Kotwan on  the border\t between the
\nUnion Territory\t of Delhi and the State of Uttar Pradesh and
\nwere on\t their way  to their  respective destinations.\tThey
\nallege\tthat   the   Senior   Marketing\t  Inspector,   Agra,
\nintercepted the\t trucks in  question at\t the  check-post  at
\nSaiyan on  the border between the State of Uttar Pradesh and
\nMadhya Pradesh\tbetween April 30, 1981, and May 2, 1981. The
\nseized trucks  were brought  back to  the purchase  point at
\nAgra and  the wheat was unloaded. Thereupon, the petitioners
\nrushed to Agra and made an application on May 4, 1981, under
\ns.6A read  with ss. 3 and 7 of the Act before the Additional
\nDistrict Magistrate  (Civil Supplies), Agra, for the release
\nof  the\t  seized  wheat.   In  the   said  application,\t the
\npetitioners, inter  alia, claimed  and unequivocally  stated
\nthat there  was no  ban on  export of  wheat from  the Union
\nTerritory of  Delhi to\tother  States,\tthat  the  wheat  in
\nquestion was  neither purchased\t at Agra,  nor was  it being
\ntransported  from  Agra\t to  any  other\t district  in  Uttar
\nPradesh, that  Agra was\t a place  in transit,  and that\t the
\ninstructions  of  the  State  Government  contained  in\t the
\nimpugned teleprinter  message dated  March 31,\t1981 did not
\nconstitute a validly notified order under sub-s. (5) of s. 3
\nof the Act.\n<\/p>\n
     The  Chief\t  Marketing  Inspector,\t Agra,\thad  in\t the
\nmeanwhile seized  42 trucks  laden with\t wheat either at the
\ncheck-post at Saiyan or at Agra and lodged first information
\nreports at  the Saiyan\tpolice station or at the Civil Lines
\npolice station\tin respect of the consignments alleging that
\nthe movement  of wheat\twas in contravention of the impugned
\nteleprinter message  and was  therefore seized, and in three
\nof them\t it was alleged that the wheat had been purchased at
\nAgra. On  the report  of the  Chief Marketing Inspector, the
\nAdditional District  Magistrate (Civil\tSupplies), Agra drew
\nup proceedings\tunder s.  6A of\t the Act  and  directed\t the
\npolice to complete the investigation within 15 days.\n<\/p>\n
1149<\/span><\/p>\n
     On May  23, 1981,\tthe Additional\tDistrict  Magistrate
\n(Civil Supplies),  Agra under  sub-s. (2)(i) of s. 6A of the
\nAct passed  interim orders  for the sale of the seized wheat
\nas it  was subject  to speedy  and  natural  decay,  at\t the
\nrequest of  the Senior\tMarketing Inspector,  similar to the
\none reproduced below:\n<\/p>\n
\t  These proceedings  under  s.6A  of  the  Essential
\n     Commodities Act  started on  the report  of SMI  Saiyan
\n     dated 30.4.1981 (Paper No. 1) whereby it was brought to
\n     the notice\t of this  Court\t that  truck  nos…..\twere
\n     caught carrying  120 quintals…..of wheat respectively
\n     beyond Saiyan border outside the State in contravention
\n     of the  orders issued  by the Government vide telex No.
\n     1061\/29-Food-5 dated  31.3.1981 F.I.R.  was  lodged  at
\n     P.S. Saiyan  in respect  of  the  above  contravention.
\n     Notice under  s. 6B  of the  EC Act  was issued  to the
\n     O.Ps….. who  were driving  the trucks  at the time of
\n     search and seizure.\n<\/p><\/blockquote>\n
\t  Replies were\tfiled by  the owners  of  the  wheat
\n     contending that  the said\trules were  not part  of any
\n     Control Order  under Section  3 of\t the EC Act nor they
\n     had any  legal sanction  for want of publication in the
\n     Official Gazette. The O.Ps. have pleaded that they were
\n     taking their  goods in transit through Agra and in fact
\n     the movement  of wheat  so made by them was inter-state
\n     movement which was not banned by the Central Government
\n     or State Government.\n<\/p><\/blockquote>\n
\t  I heard  the learned\tcounsels on  behalf  of\t the
\n     O.Ps. and\tthe learned PO as well. In these proceedings
\n     final orders  cannot be  passed at\t this stage  as\t the
\n     matter is still under investigation.
\n\t  PO directed  to put  up progress  of investigation
\n     within 15 days from now.\n<\/p><\/blockquote>\n
\t  In the  meanwhile I order that the wheat seized by
\n     SMI Saiyan\t be got\t purchased at  the Official Price so
\n     that the  same does  not get damaged. The sale proceeds
\n     be got  deposited in  Government Treasury\tunder proper
\n     Head of Account.\n<\/p><\/blockquote>\n
1150<\/span><\/p>\n
\t  This interim\torder is  being passed\tunder sub-s.
\n     (2) (i) of s.6A of the Essential Commodities Act, 1955.
\n     File be  put up  after 15\tdays along  with  report  of
\n     prosecuting office regarding progress of investigation.
\n     Sd\/-<\/p><\/blockquote>\n
     N.N. Varma
\n     Addl. Collector, Agra
\n     23.5.1981
\nThe seized  wheat has been purchased by the State Government
\non Government  account at the procurement price and the sale
\nproceeds credited into the Treasury.\n<\/p>\n
     The State\tGovernment has\tfiled a counter-affidavit of
\nthe Chief  Marketing Officer, Lucknow, in all these cases as
\nalso the  affidavits of\t the Senior  Marketing Inspectors at
\nAgra controverting  the allegations made by the petitioners.
\nIt is  stated that  the source\tof the\tpower to  effect the
\nseizure was  not the  impugned teleprinter  message, but the
\npower of  search and  seizure conferred\t on  an\t Enforcement
\nOfficer\t under\t cl.  6\t  of  the  U.P.\t Foodgrains  Dealers
\n(Licensing and\tRestriction on\tHoarding)  Order,  1976\t and
\nunder cl.6  of the Uttar Pradesh Foodgrains (Procurement and
\nRegulation of  Trade) Order,  1978 (hereinafter\t called\t the
\n1976 Order  and 1978 Order respectively), both of which were
\nissued by  the State  Government, in  exercise of the powers
\nunder s.  3 of\tthe Act,  read\twith  Government  of  India,
\nMinistry of  Agriculture (Department  of Food)\tNotification
\nNo. G.\tS.R. 888  dated June 28, 1961, No. GSR 316 (E) dated
\nJune 20,  1972, No.  GSR 452 (E) dated October 25, 1972, No.
\nGSR 168\t (E) dated March 13, 1973 and No. GSR 800 dated June
\n9, 1978\t respectively, since  it was  of opinion that it was
\nnecessary or  expedient so  to do for securing the equitable
\ndistribution and  availability of foodgrains at fair prices.
\nThe State  Government contends that the impugned teleprinter
\nmessage dated  March 31,  1981\twas  in\t the  nature  of  an
\nexecutive instruction  issued by  the State Government under
\nits undoubted  powers under Art. 162 of the Constitution for
\nthe due\t observance of\tthe provisions\tof the\ttwo  Control
\nOrders. It  is said  that no person can carry on business in
\nfoodgrains as a dealer or as a commission agent except under
\nand in\taccordance with\t the terms and conditions of a valid
\nlicence issued in that behalf under cl. 4 of the 1976 Order.
\nIt is  also said  that no wholesale dealer, commission agent
\nor trader  can have  in stock  more than  250 quintals,\t 250
\nquintals and  20 quintals  respectively, at  any time. It is
\nasserted that the State Govern-\n<\/p>\n
1151<\/span><\/p>\n
ment has  the right to set up check-posts for the purpose of
\nverification so\t that  there  is  no  contravention  of\t the
\nprovisions of  the two\tControl Orders,\t particularly with a
\nview  to  ensure  that\texcess\tquantity  of  wheat  is\t not
\ntransported  in\t  violation  of\t the  1978  Order  to  other
\ndistricts or other States.\n<\/p>\n
     The State\tGovernment in  the counter-affidavit  of the
\nChief Marketing\t Officer, Lucknow,  specifically denies\t the
\nallegations made by the petitioners that the 42 trucks laden
\nwith wheat  seized at the check-post at Saiyan on the border
\nbetween the States of Uttar Pradesh and Madhya Pradesh or at
\nAgra were  in transit during the course of inter-State trade
\nand commerce.\n<\/p>\n
     With regard  to the seizure of the wheat, it is averred
\nin para 13 of the counter-affidavit:\n<\/p>\n
\t  “The correct\tfact is\t that the  authority on\t the
\n     bona fide apprehension that the wheat so moved actually
\n     was purchased  from the  State of\tUttar  Pradesh\tfrom
\n     nearby places  and the  same was  being moved  to other
\n     States on\tthe garb  of outside  wheat. It is submitted
\n     that such\ttraders who  are exporting  wheat alleged to
\n     have purchased  from places  other than  the  State  of
\n     Uttar Pradesh  and were\/are  carrying the same to other
\n     States, have  only to satisfy the authorities concerned
\n     of the  bona fides\t of such transactions. However there
\n     is no ban on such movement from one State to another.”<\/p><\/blockquote>\n
     As regards\t the check-posts,  it is  submitted that the
\nState Government  is committed\tto provide  price support in
\nwheat to  farmers at  Rs. 130  per quintal.  This commitment
\nalso involves  purchase of  wheat directly  from the farmers
\nwithout interference  from  traders\/middlemen,\twho  try  to
\npurchase wheat from the farmers at lower prices and sell the
\nsame  at   Government  purchase\t  centres  with\t substantial
\nprofits. Such transactions are effected in fictitious names.
\nThis not  only frustrates  the\tprocurement  policy  of\t the
\nGovernment but\talso prejudicially  and financially  affects
\nthe producers’\tinterests.  In\tpara  5\t it  is\t accordingly
\naverred:\n<\/p>\n
\t  “In  order   to  curb\t the  above  tendencies\t and
\n     preventing the  activity of traders\/middlemen the State
\n     Government have  provided a  simple system of verifying
\n     all transactions by traders.\n<\/p><\/blockquote>\n
1152<\/span><\/p>\n
\t  This procedure  involves getting  all transactions
\n     of wheat  verified by  the\t Deputy\t Regional  Marketing
\n     Officer indicating\t inter alia  the name of the persons
\n     to whom the stocks are sold, their licence numbers etc.
\n     and quantum  of  stocks  sold,  price  paid  etc.\tThis
\n     process will  make it simultaneously very difficult for
\n     traders to\t buy at low price from farmers and resell at
\n     high prices at the Government purchase centres.”<\/p><\/blockquote>\n
     As regards\t the impugned  teleprinter  message  it\t was
\nstated that  it was  issued by the State Government in order
\nto sustain  and maintain  and maximise\tthe  procurement  of
\nwheat by  introducing a system of verification at the check-
\nposts.\n<\/p>\n
     The  State\t  Government  contests\t the  right  of\t the
\npetitioners  falling   in  the\t first\tcategory,  that\t is,
\nwholesale dealers of wheat from the Union Territory of Delhi
\nand the\t States of  Punjab and Haryana, to relief under Art.
\n32  of\tthe  Constitution  who\tquestion  the  legality\t and
\npropriety of  the seizures. It is a matter for investigation
\nwhich is  pending before  the Additional District Magistrate
\n(Civil Supplies),  Agra and,  according to  it, the question
\ncannot be decided without full investigation into facts.\n<\/p>\n
     In support\t of  the  writ\tpetitions,  learned  counsel
\nappearing for  the petitioners\thave,  in  substance,  urged
\nthree grounds.\t(1) There  was nothing\tto prevent the State
\nGovernment from\t making a law placing reasonable restriction
\non the freedom to carry on any occupation, trade or business
\nguaranteed under  Art. 19(1) (g) read with Art. 19(6) of the
\nConstitution, or  on the  freedom  of  trade,  commerce\t and
\nintercourse, throughout\t the territory\tof India, guaranteed
\nunder Art. 301 of the Constitution, but the restriction must
\nbe by “law” or by an “order having the force of law” and not
\nby recourse  to the  executive authority  of the State under
\nArt. 162  of the Constitution, i.e., by an executive action.
\n(2) The seizure of the consignments of the wheat, while they
\nwere in\t transit in  the course\t of  inter-State  trade\t and
\ncommerce from the Union Territory of Delhi and the States of
\nPunjab and  Haryana to various destinations in the States of
\nMaharashtra and\t Madhya Pradesh,  was without the “authority
\nof law”\t and in\t violation of Art. 300A of the Constitution.
\nThe seizure  of the  wheat being  wrongful, the\t petitioners
\nwere entitled to an appropriate writ, direction or order for
\nthe return of the seized wheat or the price thereof. (3) The
\nimpugned teleprinter  message of  the State Government dated
\nMarch 31,  1981 on  the basis  of which\t the  seizures\twere
\neffected, in truth and
\n1153<\/span>
\nsubstance, had\tno legal sanction and cannot be construed to
\nbe a  notified order  within the  meaning of sub-s. (1) read
\nwith sub-s.  (5) of  s. 3  of the Act; it was nothing but an
\nexecutive direction.  No executive  action which operates to
\nthe  prejudice\tof  a  citizen\tcan  be\t taken\twithout\t the
\nauthority of law. It was asserted that the seizures effected
\nwere in\t compliance of\tthe instructions  contained  in\t the
\nimpugned teleprinter  message and  not for breach of the two
\nControl\t Orders\t  and  therefore   it  was   nothing  but  a
\n“colourable exercise”  of power.  The real  purpose  of\t the
\nseizure was  procurement of  wheat  in\tfurtherance  of\t the
\ndirectives of  the Central  Government,\t without  any  legal
\nsanction since\tthe farmers  were not  willing to sell their
\nwheat at the procurement price.\n<\/p>\n
     Learned counsel  for the petitioners also challenge the
\naction\tof   the  Additional   District\t Magistrate   (Civil
\nSupplies) Agra\tin passing an interim order in terms of sub-
\ns. (2)\t(i) of\ts. 6A  of the Act for the sale of the seized
\nwheat on  Government account and for the sale proceeds to be
\ncredited  into\tthe  treasury  in  an  appropriate  Head  of
\nAccount; it  is urged that under sub-s. (2) (ii) of s. 6A of
\nthe Act\t there being  no control  price for wheat, the wheat
\nshould have been sold by public auction.\n<\/p>\n
     In reply,\tlearned counsel\t for the  State has repelled
\nall these  contentions. It  is submitted  that the source of
\npower to effect the seizure was not the impugned teleprinter
\nmessage, but the two Control Orders issued under s. 3 of the
\nAct. He\t asserted that\tthe wheat  in question was not being
\ntransported during  the\t course\t of  inter-State  trade\t and
\ncommerce from the Union Territory of Delhi and the States of
\nPunjab and Haryana to various other States. The wheat had in
\nfact been  purchased at\t Agra and  was being lifted from the
\nState of  Uttar Pradesh\t and had, therefore, to be seized at
\nthe check-post\tat Saiyan  and at  Agra. He  points out that
\nunder cl.  3 of\t the 1976  Order, no  person  can  carry  on
\nbusiness as  a dealer  or commission  agent, except  and  in
\naccordance with the terms and conditions of a licence issued
\nin that behalf by the licensing authority. According to him,
\nthe seized wheat had been purchased at Agra in the course of
\ntrade,\tand   they  were   not\tisolated  transactions\tand,
\ntherefore, the\tDelhi traders committed contravention of cl.
\n3 of  the 1976\tOrder. It  is also pointed out that cl. 4 of
\nthe 1978 Order, as amended, provides that no person who is a
\nwholesale dealer, commission agent or retailer shall have in
\nstock  wheat  in  quantities  exceeding\t 250  quintals,\t 250
\nquintals and  20 quintals  at a\t time. It is further pointed
\nout, cl. 14 of the 1976 Order, and cl. 6
\n1154<\/span>
\nof the\t1978 Order confer the power of search and seizure on
\nan enforcement\tofficer or  the licensing  authority or\t any
\nother officer  authorised by  the Government in that behalf,
\nand the\t expression “enforcement  officer” defined  in cl. 2\n<\/p>\n
(e) of the former Order and cl. 2(d) of the latter, includes
\nthe Chief  Marketing Inspector.\t According  to\tthe  learned
\ncounsel the Government instructions conveyed in the impugned
\nteleprinter message  is merely in the nature of an executive
\ninstruction for\t the enforcement  of the two Control Orders.
\nIn support  of\tthe  contentions,  he  also  relies  on\t the
\nexecutive  power   of  the  State  under  Art.\t162  of\t the
\nConstitution. In  the premises,\t the contention on behalf of
\nthe State  is that the question whether the seized wheat was
\nliable to  be confiscated or not under s. 6A of the Act, was
\na matter pending adjudication before the Additional District
\nMagistrate (Civil Supplies) Agra. That depends on whether or
\nnot there was contravention by the petitioners of any of the
\nOrder issued under s. 3 of the Act and, therefore, cannot be
\ndetermined without full investigation into the facts.\n<\/p>\n
     The Inter-Zonal  Wheat (Movement  Control) Order, 1976,
\nissued by  the Central Government, in exercise of the powers
\nconferred by  s. 3 of the Act has been rescinded with effect
\nfrom April  13, 1977.  The result  of this is that the whole
\ncountry constitutes a single zone for free movement of wheat
\nexcept in  such States\twhere an  order is issued under s. 3
\nread with  s. 5 of the Act, placing a ban on export of wheat
\nsuch as\t in the\t State of  Rajasthan. Admittedly,  the State
\nGovernment of  Uttar Pradesh  has not issued any order under
\ns. 3  read with\t s. 5 of the Act, placing a ban on export of
\nwheat from  the State  or any  restriction on inter-district
\nmovement of  wheat within  the State.  The State  Government
\ndoes  not  contest  this  position  and\t indeed,  the  Chief
\nMarketing Officer in his counter-affidavit states:\n<\/p>\n
\t  “The State  of Uttar\tPradesh has  not banned\t the
\n     movement  of  wheat  outside  the\tState  or  from\t one
\n     district to  another district  within the\tState. It is
\n     submitted that  such traders who are transporting wheat
\n     alleged to\t be purchased  from a  place other  than the
\n     State of  Uttar Pradesh  and were\/are carrying the same
\n     to other  States other  than Uttar Pradesh have only to
\n     satisfy the  authorities concerned of the bona fides of
\n     the transactions.\tHowever, there\tis no  ban  on\tsuch
\n     movement from one State to another.”<\/p><\/blockquote>\n
1155<\/span><\/p>\n
     The impugned  teleprinter message\tdated March 31, 1981
\nruns as follows:\n<\/p>\n
     “For:\n<\/p><\/blockquote>\n
\t       Regional Food Control,
\n\t       Agra\/Bareilly\/Dehradun\/Faizabad\/Gorakhpur
\n\t       Jhansi\/Haldwani\/Kanpur\/Meerut\/Varanasi
\n\t       Lucknow (by Hand)
\n\t       From:\n<\/p><\/blockquote>\n
\t\t    Secretary (Food)
\n\t\t    Lucknow.\n<\/p><\/blockquote>\n
       No. TP-1061\/XXIX-Food-5\t\t     Dated: Lucknow:\n<\/p><\/blockquote>\n
\t\t\t\t\t     March 31, 1981.\n<\/p><\/blockquote>\n
\t  Refer Tel  TP-712\/XXIX-Food-5-5(1)\/81 of 9th March
\n     1981 regarding  renewal of and issue of new licences to
\n     dealers(,) Government  committed to provide benefits of
\n     support price to producers hence to ensure that maximum
\n     quantity of wheat is purchased by agencies (.) Para (.)
\n     After careful  consideration  Government  have  decided
\n     that with\teffect from  first April 1981 till thirtieth
\n     June 1981\tno repeat no fresh licences are to be issued
\n     to any person who wish to deal in wheat, wheat products
\n     or both  as wholesaler  commission agent  retailer\t (.)
\n     Para (.) Government have also decided that during April
\n     1981 to  June 1981\t movement of  wheat  by\t traders  on
\n     private account  to outside district shall be regulated
\n     only on  the endorsement  of Deputy  Regional Marketing
\n     Officer  concerned\t  and  hitherto\t  this\tpower  being
\n     exercised\tby  Senior  Marketing  Inspector  shall\t not
\n     repeat not\t be used  by them  (.) Para  (.) At the same
\n     time easy\tavailability of\t wheat in open markets is to
\n     be ensured(.)  Keeping all the relevant factors in view
\n     endorsement by Dy. R.M.O. should be made judiciously on
\n     genuine and  bonafide grounds(.)  Para(.) Dy.  RMO will
\n     send daily\t report to  RFC of  the cases  in which such
\n     permission is  granted or endorsement made(..) RFC will
\n     compile  and   send  weekly   report  to  Government(.)
\n     Permission to  be\tgiven  very  sparingly\tand  general
\n     impression made  should be\t that they  will not gain by
\n     doing any\ttrading in  wheat(.) Visit  Mandis regularly
\n     and  check\t quantities  lying  in\ttraders\t premises(.)
\n     Presence of large stocks with trade means staff
\n1156<\/span>
\n     is\t not   during  their   job  properly(.)\t Inform\t all
\n     concerned immediately for strict compliance(.)
\n     Dated: Lucknow; March 31, 1981\t\t  Sd\/-\n<\/p><\/blockquote>\n
\t\t\t\t\t M. Subrahmanyam
\n\t\t\t\t\t    Secretary
\n\t\t\t\tFood & Civil Supplies Sec. 5
\n\t\t\t\tU.P. Secretariat, Lucknow.”<\/p><\/blockquote>\n
     There can\tbe no  doubt that  the aforesaid teleprinter
\nmessage was  in the  nature of executive instructions of the
\nState Government  to the  Regional Food\t Controllers of\t the
\nvarious regions to secure compliance with the orders. It may
\nbe mentioned  that the\tState Government  was  committed  to
\nprovide price  support in  wheat to  producers and  hence to
\nmaximise procurement  of wheat,\t issued instructions that no
\nfresh licences\ttill June 30, 1981 were to be granted to any
\nperson who wished to deal in wheat, wheat products, or both,
\nas well\t as  a\twholesale  dealer,  commission\tagent  or  a
\nretailer. It  further conveyed\tthe policy  decision of\t the
\nGovernment that\t during April  1981  movement  of  wheat  by
\ntraders on  private account  to outside\t districts shall  be
\nregulated only\ton the\tendorsement of\tthe Deputy Marketing
\nOfficer concerned and not by the Senior Marketing Inspectors
\nas  hitherto   before.\tThe  Government\t also  directed\t the
\nRegional Food  Controllers to  ensure easy  availability  of
\nwheat in  open market. As regards the making of endorsement,
\nthey were  advised that\t the powers should be exercised with
\ndue circumspection. They were also asked to visit the mandis
\nand keep  a constant  vigil on\tthe stocks  lying  with\t the
\ntraders. There\tappears to  be nothing\tunusual on the State
\nGovernment issuing such executive instructions.\n<\/p>\n
     Even assuming  that the impugned teleprinter message is
\nnot  relatable\t to  the   two\tControl\t Orders,  the  State
\nGovernment undoubtedly\tcould, in  exercise of the executive
\npower of  the State,  introduce a  system of verification on
\nmovement of wheat from the State of Uttar Pradesh to various
\nother States  at the  check-posts on  the border  and  place
\nrestrictions on\t inter-district movement of wheat by traders
\non private  account within the State. The executive power of
\na modern  State is not capable of any precise definition. In
\nRam Jawaya  Kapur v. State of Punjab, Mukherjea, C.J., dealt
\nwith the  scope of Arts. 73 and 162 of the Constitution. The
\nlearned Chief  Justice observed\t that  neither\tof  the\t two
\nArticles contains any
\n1157<\/span>
\ndefinition as  to what the executive function is or gives an
\nexhaustive  enumeration\t  of  the   activities\twhich  would
\nlegitimately  come   within  its  scope.  It  was  observed:
\n“Ordinarily the\t executive power  con-notes the\t residue  of
\ngovernmental functions\tthat remain  after  legislative\t and
\njudicial functions  are taken away”. It is neither necessary
\nnor possible  to give an exhaustive enumeration of the kinds
\nand categories\tof executive  functions which  may  comprise
\nboth the formulation of the policy as well as its execution.
\nIn other words, the State in exercise of its executive power
\nis charged  with the duty and the responsibility of carrying
\non the\tgeneral administration\tof the State. So long as the
\nState Government  does not  go against the provisions of the
\nConstitution or\t any law,  the width  and amplitude  of\t its
\nexecutive power\t cannot be  circumscribed. If  there  is  no
\nenactment  covering   a\t particular  aspect,  certainly\t the
\nGovernment  can\t carry\ton  the\t administration\t by  issuing
\nadministrative\tdirections   or\t instructions,\t until\t the
\nlegislature makes  a law  in  that  behalf.  Otherwise,\t the
\nadministration would come to a standstill.\n<\/p>\n
     In Ram  Jawaya Kapoor’s  case (supra)  it was contended
\nthat the  executive power of the State did not extend to the
\ncarrying on  of trade of printing, publishing and selling of
\ntext-books for\tschools unless\tsuch trade was authorised by
\nlaw. In\t repelling the\tcontention, Mukherjea, C.J. speaking
\nfor the Court, observed :\n<\/p>\n
\t  Our Constitution, though federal in its structure,
\n     is modelled  on the  British Parliamentary system where
\n     the  executive   is  deemed   to\thave   the   primary
\n     responsibility  for  the  formulation  of\tgovernmental
\n     policy  and   its\ttransmission  into  law\t though\t the
\n     condition\t precedent   to\t  the\texercise   of\tthis
\n     responsibility is\tits retaining  the confidence of the
\n     legislative branch of the State. The executive function
\n     comprises both  of the  determination of  the policy as
\n     well as  carrying it  into\t execution.  This  evidently
\n     includes the initiation of legislation, the maintenance
\n     of order, the promotion of social and economic welfare,
\n     the direction  of foreign\tpolicy, in fact the carrying
\n     on or  supervision of the general administration of the
\n     State.\n<\/p><\/blockquote>\n
The learned Chief Justice then went on to observe :\n<\/p>\n
\t  The Indian  Constitution is a written Constitution
\n     and  even\t the   legislature   cannot   override\t the
\n     fundamental rights
\n1158<\/span>
\n     guaranteed by it to the citizens. Consequently, even if
\n     the acts  of the  executive are deemed to be sanctioned
\n     by the legislature, yet they can be declared to be void
\n     and  in-operative\t if  they   infringe  any   of\t the
\n     fundamental rights\t of the petitioners guaranteed under
\n     Part III  of the  Constitution. On the other hand, even
\n     if the  acts of  the executive are illegal in the sense
\n     that they\tare not warranted by law, but no fundamental
\n     rights of\tthe petitioners have been infringed thereby,
\n     the latter\t would obviously  have no  right to complain
\n     under article  32 of  the Constitution  though they may
\n     have remedies  elsewhere if  other heads  of rights are
\n     infringed.\n<\/p><\/blockquote>\n
In Naraindas  Indurkhya v.  State of  Madhya Pradesh  &\t Ors
\nBhagwati,  J.,<\/a>\t speaking  for\tthe  Court,  reiterated\t the
\nprinciples laid\t down  by  Mukherjea,  C.J.  in\t Ram  Jawaya
\nKapur’s case  (supra) and  held that  the  State  Government
\ncould act  in exercise\tof the\texecutive power of the State
\nunder Art. 162 of the Constitution in relation to any matter
\nwith respect  to which\tthe State  Legislature has  power to
\nmake laws  even if  there was no legislation to support such
\nexecutive action.  There is  no denying\t the fact  that\t the
\nState Legislature is competent to enact a law on the subject
\ncovered by Entry 33, List III, which reads:\n<\/p>\n
\t  33. Trade  and commerce  in, and  the\t production,
\n     supply and distribution of,-\n<\/p><\/blockquote>\n
\t  (b)  foodstuffs,  including  edible  oilseeds\t and
\n\t       oils.<\/p><\/blockquote>\n
     The Essential  Commodities Act,  1955  was\t enacted  by
\nParliament in  exercise\t of  concurrent\t jurisdiction  under
\nEntry  33   List  III\tof  the\t  Seventh  Schedule  to\t the
\nConstitution  as   amended  by\t the   Constitution   (Third
\nAmendment)  Act,  1954.\t The  exercise\tof  such  concurrent
\njurisdiction would  not deprive the State legislature of its
\njurisdiction thereunder.  The State  legislature, therefore,
\ncould still  make a  law on the subject regulating trade and
\ncommerce in,  and the production, supply and distribution of
\n‘foodstuffs’ and  the only  question that would arise is one
\nof repugnancy  dealt with  in Art.  254 of the Constitution.
\nThe executive power of the State being co-extensive with its
\nlegislative power  under Entry\t33, List  III, it relates to
\nall matters covered by the subject ‘foodstuffs’,
\n1159<\/span>
\ntrade and  commerce  in,  and  the  production,\t supply\t and
\ndistribution thereof.  This is,\t of course,  subject to\t the
\nlimitation contained  in Proviso  to Art.  162 which directs
\nthat in\t any matter with respect to which the legislature of
\na  State  and  Parliament  have\t power\tto  make  laws,\t the
\nexecutive power\t of the\t State\tshall  be  subject  to,\t and
\nlimited by,  the executive  power expressly conferred by the
\nConstitution or by any law made by Parliament upon the Union
\nor authorities thereof.\n<\/p>\n
     This leads\t us to\tanother aspect\tof  the\t problem  of
\nconsiderable difficulty\t and importance. The subject ‘search
\nand seizure’, is a field which has not come before the court
\nwith considerable frequency, but this is a hard fact of life
\nwhich the  citizen does\t encounter very often. The executive
\npower of  ‘search and seizure’ is a necessary concomitant of
\na welfare  State. It  tends to promote the well being of the
\nnation. Many  questions arising\t in the\t field of search and
\nseizure are  factual in nature. They involve varying degrees
\nof difference  among the  infinitely  diverse  facts.  Every
\nfactual variation  presents not only a new problem, but also
\na new  constitutional question.\t It is\ta limitless  area in
\nwhich different\t issues may  arise with\t vast variations  of
\nfacts which  are involved  in each individual case. This is,
\nindeed, a peculiar field in which the decisions of courts do
\nnot help  in clarifying\t the law. The decisions in the field
\nare of\tlittle precedental value because, the more the cases
\nthat  are  decided,  the  more\tnew  issues  arise,  through
\npossible factual variations.\n<\/p>\n
     The check-posts  and barriers  on the  borders  of\t the
\nState of  Uttar Pradesh\t are set  up under s. 28 of the U.P.
\nSales Tax  Act, 1948  and are  designed and meant to prevent
\nevasion of  sales tax  and other  dues.\t The  constitutional
\nvalidity of s. 28 and its cognate provisions, ss. 28A to 28C
\nhas, rightly,  if we  may say so, not been challenged before
\nus. From  the point  of view either of Entry 54, List II, or
\nof Art. 301 of the Constitution, there is no question of any
\nlack of\t competence in\tthe State  legislature to set up the
\ncheckposts  and\t barriers  on  the  State’s  borders.  These
\nprovisions, read  with the  requirements of  r. 83(4) of the
\nU.P. Sales Tax Rules, 1948 require that the owner, driver or
\nany other  person in-charge  of the vehicle or vessel shall,
\nin respect of such goods carried in the vehicle or vessel as
\nare notified  under sub-s.  (1) of s. 28A, carry with him, a
\ndeclaration in\tForm XXXI,  a certificate  in Form  XXXII, a
\ntransit pass  in Form XXXIV in duplicate, cash memo, bill of
\nsale or\t challan and a trip-sheet in triplicate. The factual
\nexistence of these check-\n<\/p>\n
1160<\/span><\/p>\n
posts or  barriers on the State’s borders is not denied, nor
\ntheir legality\tchallenged. It\tis not\tsuggested  that\t the
\nsetting up  of these  check-posts is  a restriction  on\t the
\nfreedom of  trade, commerce and intercourse guaranteed under
\nArt. 301  of the  Constitution, or  is such  as directly and
\nimmediately restricts  or impedes  the free flow or movement
\nof goods.  It is  also not  suggested that  these regulatory
\nmeasures in  setting  up  the  check-posts  on\tthe  State’s
\nborders are  such as  impede freedom  of trade, commerce and
\nintercourse. Just as inter-State trade and commerce must pay
\nits way\t and be subject to taxation, persons engaged in such
\ninter-State trade  or commerce\tare equally  subject to\t all
\nregulatory measures.  There is no reason why the check-posts
\nor barriers  set up  by the  State Government under s. 28 of
\nthe U.P.  Sales Tax  Act, 1948,\t cannot\t be  utilised  as  a
\nmachinery  for\t due  observance   of  the  laws,  e.g.\t for
\nverification and  control of movement of wheat by traders on
\nprivate account\t from the  State of Uttar Pradesh to various
\nother States.\n<\/p>\n
     The instructions  conveyed by  the State  Government by
\nthe impugned  teleprinter message dated March 31, 1981, were
\na direct  sequel to the Centre’s directives contained in its
\nearlier teleprinter  message. It  was intended\tand meant to
\nachieve three  main objectives, namely, (1) to provide price
\nsupport in  wheat to  purchasers with  a  view\tto  sustain,
\nmaintain and  maximise the  procurement\t of  wheat;  (2)  to
\nprevent hoarding  and blackmarketing; and (3) to provide for
\nequitable distribution\tand availability  of wheat  at\tfair
\nprices. These  directions were\tobviously meant\t to subserve
\nthe object of the legislation and were in public interest.\n<\/p>\n
     These cases were argued with much learning and resource
\nparticularly with  reference to\t the rule  of  law  and\t the
\nconsequent limitations\ton the\texecutive power of the State
\nunder Art.  162 to  ‘trench’ upon  the fundamental  right to
\ncarry on  trade or business guaranteed under Art. 19 (1) (g)
\nand  the   freedom  of\t trade,\t commerce   and\t intercourse
\nthroughout the\tterritory of India guaranteed under Art. 301
\nof the\tConstitution. It necessarily involves a claim by the
\nState that the measures taken by the State Government by the
\nimpugned teleprinter  message were  nothing  but  regulatory
\nmeasures to  ensure that the excess stock of wheat held by a
\nwholesale dealer,  commission agent  or a  retailer  is\t not
\ntransported to\ta  place  outside  the\tState  or  from\t one
\ndistrict to  another within the State and therefore were not
\na ‘restriction’\t on the\t fundamental right to carry on trade
\nor business  guaranteed under  Art.  19\t (1)(g)\t or  on\t the
\nfreedom of trade, commerce and intercourse under Art. 301.\n<\/p>\n
1161<\/span><\/p>\n
     The quintessence  of our  Constitution is\tthe rule  of
\nlaw. The   State  or its executive officers cannot interfere
\nwith the  rights of  others unless  they can  point to\tsome
\nspecific rule  of law  which authorises their acts. In State
\nof Madhya Pradesh v. Thakur Bharat Singh, the Court<\/a> repelled
\nthe contention\tthat by virtue of Art. 162, the State or its
\nofficers  may,\tin  the\t exercise  of  executive  authority,
\nwithout any  legislation in  support thereof,  infringe\t the
\nrights of  citizens merely  because the\t legislature of\t the
\nState has  power to  legislate in  regard to  the subject on
\nwhich the executive order is issued. It was observed:\n<\/p>\n
\t  “Every act  done  by\tthe  Government\t or  by\t its
\n     officers must,  if it is to operate to the prejudice of
\n     any  person,   be\t supported   by\t  some\t legislative
\n     authority.”\n<\/p><\/blockquote>\n
The same  principle was\t reiterated by\tthe Court in Satwant
\nSingh  Sawhney\t v.  Dr.   Ramarathnam,\t Assistant  Passport
\nOfficer, Government  of India,\tNew Delhi  & Ors,  and\tSmt.
\nIndira Nehru Gandhi<\/a> v. Shri Raj Narain.\n<\/p>\n
     There can\tbe no  doubt that  the Essential Commodities
\nAct, 1955,  is a ‘law’ within the meaning of Art. 302 of the
\nConstitution imposing  reasonable restrictions\ton the right
\nto carry  on  trade  and  commerce  as\tguaranteed  by\tArt.
\n19(1)(g) and Art. 301 of the Constitution. The object of the
\nAct is\tto provide,  in the interests of the general public,
\nfor the control, production, supply and distribution of, and
\ntrade and  commerce in,\t certain essential  commodities.  To
\nappreciate the\tpoints involved,  it is necessary to set out
\nthe material statutory provisions. Sub-s. (1) of s. 3 of the
\nAct provides as follows:\n<\/p>\n
\t  “3(1). If  the Central  Government is\t of  opinion
\n     that  it  is  necessary  or  expedient  so\t to  do\t for
\n     maintaining or  increasing supplies  of  any  essential
\n     commodity or  for securing their equitable distribution
\n     and availability  at fair\tprices, or  for securing any
\n     essential commodity  for the  defence of  India or\t the
\n     efficient conduct\tof military  operations, it  may, by
\n     order,  provide   for  regulating\tor  prohibiting\t the
\n     production, supply\t and distribution  thereof and trade
\n     and commerce therein.\n<\/p><\/blockquote>\n
1162<\/span><\/p>\n
Sub-s. (2)  thereof provides  that without  prejudice to the
\ngenerality of  the powers  conferred by\t sub-s. (1) an order
\nmade  thereunder   may\tprovide\t  for  any  of\tthe  matters
\nenumerated therein.  Sub-s. (5) provides that any order made
\nunder this  section shall  in the  case of  an\torder  of  a
\ngeneral nature\tor affecting a class of persons, be notified
\nin the\tOfficial Gazette.  By virtue  of the  delegation  of
\npowers under  s. 5  of\tthe  Act  the  State  Government  in
\nrelation to  such matters  and subject to such conditions as
\nmay be\tspecified, may\texercise the  powers of\t the Central
\nGovernment under s. 3 Clause (j) of sub-s. (2) of 3 provides
\nthat the  Central Government or the State Government, as the
\ncase may be, may by order provide:\n<\/p>\n
\t  “For any  incidental\tand  supplementary  matters,
\n     including,\t in   particular,  the\t entry,\t search\t  or
\n     examination of premises, aircraft, vessels, vehicles or
\n     other conveyance  and animals,  and the  seizure  by  a
\n     person  authorised\t  to  make  such  entry,  search  or
\n     examination……’
\nSub-ss. (1)  and (2)  of  s.  6A  of  the  Act,\t insofar  as
\nmaterial, provide as follows:\n<\/p><\/blockquote>\n
\t  “6A(1). Where any essential commodity is seized in
\n     pursuance of  an order made under section 3 in relation
\n     thereto,\ta   report   of\t  seizure   shall,   without
\n     unreasonable delay,  be made  to the  Collector of\t the
\n     district or the Presidency-town in which such essential
\n     commodity is seized and whether or not a prosecution is
\n     instituted for  the contravention\tof such\t order,\t the
\n     Collector may,  if he  thinks it  expedient so  to\t do,
\n     direct the essential commodity so seized to be produced
\n     for inspection  before him, and if he is satisfied that
\n     there has\tbeen a contravention of the order, may order
\n     confiscation of-\n<\/p><\/blockquote>\n
     (a)  the essential commodity so seized;
\n\t  6A(2). Where\tthe Collector, on receiving a report
\n     of seizure\t or on inspection of any essential commodity
\n     under sub-s.  (1), is of the opinion that the essential
\n     commodity is  subject to speedy and natural decay or it
\n     is otherwise expedient in the public interest so to do,
\n     be may-\n<\/p><\/blockquote>\n
\t  (i)  order the  same to  be sold at the controlled
\n\t       price,  if  any,\t fixed\tfor  such  essential
\n\t       commodity under\tthis Act  or under any other
\n\t       law for the time being in force; or
\n1163<\/span>\n<\/p><\/blockquote>\n
\t  (ii) where no\t such price is fixed, order the same
\n\t       to be sold by public auction:\n<\/p><\/blockquote>\n
\t  Provided that in case of foodgrains, the Collector
\n     may, for its equitable distribution and availability at
\n     fair prices,  order the  same to  be sold\tthrough fair
\n     price  shops   at\tthe   price  fixed  by\tthe  Central
\n     Government or  by the State Government, as the case may
\n     be, for  the retail  sale of  such\t foodgrains  to\t the
\n     public.”<\/p><\/blockquote>\n<\/blockquote>\n
     Learned  counsel  for  the\t State\tGovernment,  in\t all
\nfairness, does\tnot assert  that  the  impugned\t teleprinter
\nmessage having regard to the requirements of sub-s. (5), has
\nthe effect of a notified Order under s. 3 of the Act placing
\na ban  on export  of wheat  from the  State  or\t imposing  a
\nrestriction on\tinter-district\tmovement  of  wheat.  It  is
\nsubmitted that\tit only\t conveyed the  instructions  of\t the
\nState Government  requiring the Regional Food Controllers to
\nbe more\t vigilant to  secure due observance of the laws. The
\nquestion still\tremain whether\tthe instructions conveyed by
\nthe teleprinter message had the force of law.<\/p><\/blockquote>\n
     It\t is   therefore\t to   be  considered   whether\t the
\ninstructions  conveyed\t by  the  State\t Government  by\t the
\nimpugned teleprinter  message  were  relatable\tto  the\t two
\nControl Orders and therefore could be considered to be ‘law’
\nor an  order having  the force\tof  law\t placing  reasonable
\nrestriction on the freedom to carry on any occupation, trade
\nor business  guaranteed under  Art. 19(1)(g)  read with Art.
\n19(6) of  the Constitution  or\ton  the\t freedom  of  trade,
\ncommerce and  intercourse throughout  the territory of India
\nguaranteed under  Art. 301 o the Constitution. It is further
\nto be considered whether the seizure of wheat in transit was
\nwith authority of law.\n<\/p>\n
     It is  submitted that although the impugned teleprinter
\nmessage dated  March 31, 1981 was in the nature of executive
\ninstructions of\t the State  Government to  the Regional Food
\nControllers of the various regions to secure compliance with
\nthe two\t Control Orders,  it had  the force  of law.  It  is
\npointed out that under licence conditions Nos. 11, 12 and 13
\nof the\tlicence issued\tin Form\t B under  cl. 4\t of the 1976
\nOrder, a  dealer is  required to  comply with  any direction
\nthat may  be given  by the  State Government  in  regard  to
\npurchase, sale or storage for sale of foodgrains, to furnish
\nsuch information relating to his business as may be demanded
\nof him\tand to carry out such instructions as may, from time
\nto time, be given,
\n1164<\/span>
\nby the\tState Government  or the licensing authority, and to
\ngive  all   facilities\tat  all\t reasonable  times,  to\t the
\nenforcement  officer  or  the  licencing  authority  or\t any
\nofficer authorised  by him  or the  State Government for the
\ninspection of the stocks etc. It is further pointed out that
\nthe State  Government of  Uttar Pradesh\t has by Notification
\nNo. P-XXIX-Food-5-5(42)\/80 dated April 21, 1981, in exercise
\nof the\tpowers conferred  by s. 3 read with s. 5 of the Act,
\nwith the prior concurrence of the Central Government, issued
\nthe Uttar  Pradesh Foodgrains (Procurement and Regulation of
\nTrade) (First  Amendment) Order,  1981. By  cl. 2 thereof, a
\nnew cl.\t 4 has\tbeen substituted  in the 1978 Order by which
\nthe stock  limit of dealers in foodgrains has been re-fixed,
\nas it was of the opinion that it was necessary and expedient
\nso  to\t do  for   securing   equitable\t  distribution\t and
\navailability of wheat at fair prices. The new cl. 4 provides
\nthat no\t wholesale dealer,  commission\tagent  or  retailer,
\nshall have  in stock,  wheat more  than\t 250  quintals,\t 250
\nquintals and  20 quintals respectively, at any time. The re-
\nfixation of  the stock\tlimit of  a wholesale dealers at 250
\nquintals, at  any time,\t is to ensure that wholesale dealers
\nin the State of Uttar Pradesh do not try to corner stocks of
\nwheat for  purposes of\tspeculation. The  submission is that
\nthe State  Government without  placing\tany  restriction  on
\nmovement of wheat from the State of Uttar Pradesh to various
\nother States, has virtually frozen the excess stock of wheat
\nlying with  wholesale dealers  of foodgrains  in the  State.
\nThere is,  in  our  opinion,  considerable  force  in  these
\nsubmissions.\n<\/p>\n
     The real  question at  issue  is  whether\tor  not\t the
\nseizure\t of  wheat  was\t with  the  authority  of  law.\t The
\nfundamental right  to carry  on trade or business guaranteed
\nunder Art.  19(1)(g) or\t the freedom  of inter-State  trade,
\ncommerce and intercourse under Art. 301 of the Constitution,
\nhas its\t own limitations. The liberty of an individual to do
\nas he  pleases is  not absolute. It must yield to the common
\ngood. Absolute\tor unrestricted individual rights do not and
\ncannot exist  in any modern State. There is no protection of
\nthe rights  themselves unless  there is a measure of control
\nand regulation\tof the\trights of  each\t individual  in\t the
\ninterests of  all. Whenever such a conflict comes before the
\nCourt, it  is its  duty to  harmonise the  exercise  of\t the
\ncompeting rights.  The Court  must balance  the individual’s
\nrights of  freedom of  trade under  Art.  19(1)(g)  and\t the
\nfreedom of  inter State trade and commerce under Art. 301 as
\nagainst the national interest. Such a limitation is inherent
\nin the exercise of those rights.\n<\/p>\n
1165<\/span><\/p>\n
     Under Art.\t 19(1)(g) of the Constitution, a citizen has
\nthe right  to carry on any occupation, trade or business and
\nthe  only  restriction\ton  this  unfettered  right  is\t the
\nauthority of  the State\t to make  a law\t imposing reasonable
\nrestrictions under  cl. (6).  The principles  underlying  in
\ncls. (5)  and (6)  of Art.  19\tare  now  well\tsettled\t and
\ningrained in  our legal\t system in  a number of decisions of
\nthis Court,  and it is not necessary to burden this judgment
\nwith  citations.  The  expression  ‘reasonable\trestriction’
\nsignifies  that\t the  limitation  imposed  on  a  person  in
\nenjoyment of  the right\t should not  be arbitrary  or of  an
\nexcessive nature,  beyond what\tis required in the interests
\nof  the\t  public.  The\t test  of  reasonableness,  wherever
\nprescribed, should  be applied\tto each\t individual  statute
\nimpugned, and  no abstract  standard, or  general pattern of
\nreasonableness can  be laid down as applicable in all cases.
\nThe restriction which arbitrarily or excessively invades the
\nright  cannot\tbe  said   to\tcontain\t  the\tquality\t  of
\nreasonableness\tand  unless  it\t strikes  a  proper  balance
\nbetween the  freedom guaranteed\t in Art.  19(1)(g)  and\t the
\nsocial control\tpermitted by  cl. (6) of Art. 19, it must be
\nheld to be wanting in that quality.\n<\/p>\n
     The nature\t of the right alleged to have been infringed
\nis that\t wholesale dealers  in foodgrains  from the State of
\nUttar Pradesh  or elsewhere  are prevented from moving their
\nstock of  wheat to various other States or from one district
\nto another  without the\t transaction being verified and duly
\nendorsed by  the Deputy\t Marketing  Officer  or\t the  Senior
\nMarketing Officer  concerned. The  other restriction  on the
\nenjoyment of  their right placed by the impugned teleprinter
\nmessage is that there should be physical verification at the
\ncheckposts on the State’s borders. These steps were designed
\nto prevent  a price  rise in  wheat in\tthe State  of  Uttar
\nPradesh and  to prevent\t outflow of  wheat from the State to
\nvarious other  States  and  from  one  district\t to  another
\ndistrict within\t the State.  The whole\tobject was to ensure
\nthat the  wholesale dealers  in foodgrains  did\t not  corner
\nstocks of wheat for the purpose of speculation. It cannot be
\nsaid that  they do not contain the quality of reasonableness
\nor were\t not in\t the interests\tof the\tgeneral\t public.  In
\njudging the validity of these restrictions, the Court has to
\nstrike a proper balance between the freedom guaranteed under
\nArt. 19(1)(g)  and the\tsocial\tcontrol\t permitted  by\tArt.
\n19(6).\n<\/p>\n
     If, therefore,  the seizure  can be  justified  on\t the
\nbasis of  any valid  law, it  cannot be\t held to be illegal.
\nThis is equally true of Art. 301. Art. 301 imposes a general
\nlimitation on all legislative
\n1166<\/span>
\npower  in   order  to\tsecure\tthat   trade,  commerce\t and
\nintercourse throughout the territory of India shall be free.
\nHaving placed a general limitation on the legislative powers
\nof Parliament  and the\tState Legislatures, Art. 302 relaxes
\nthat restriction  in favour  of Parliament by providing that
\nauthority may,\tby law,\t impose\t such  restrictions  on\t the
\nfreedom of trade, commerce and intercourse between one State
\nand another and within any part of the territory of India in
\nthe public  interest. Likewise,\t Art. 304(b)  provides\tthat
\nnotwithstanding\t anything   in\tArt.  301  or  Art.  303,  a
\nlegislature of\ta State\t may, by law, impose such reasonable
\nrestrictions  on   the\tfreedom\t  of  trade,   commerce\t  or
\nintercourse with  or within that State as may be required in
\nthe public  interest, provided that no Bill or amendment for
\nthe purpose  of cl.  (b) shall be introduced or moved in the
\nlegislature of\ta State without the previous sanction of the
\nPresident. Although Art. 301 guarantees that trade, commerce
\nand intercourse\t throughout the\t country shall\tbe free, the
\nright to  carry on  inter-State trade  and commerce  may  be
\nsubject to  reasonable restrictions  in the interests of the
\ngeneral public.\n<\/p>\n
     The word  ‘free’ in Art. 301 does not mean freedom from
\nlaws or\t from regulations.  Art. 301  guarantees freedom  of
\ntrade, commerce\t and intercourse throughout the country from
\nany State  barriers. It\t declares that\tsubject to the other
\nprovisions of  Part XIII,  trade, commerce  and\t intercourse
\nthroughout the\tterritory of  India shall be free. The whole
\nobject was  to bring about the economic unity of the country
\nunder a\t federal structure, so that the people may feel that
\nthey are  members of one nation. One of the means to achieve
\nthis object  is to guarantee to every citizen the freedom of
\nmovement and  residence\t throughout  the  country.  That  is
\nachieved by  Art. 19(1)(d) and (e). No less important is the
\nfreedom of  movement or passage of commodities from one part
\nof the\tcountry to another. The progress of the country as a
\nwhole also requires free flow of commerce and intercourse as
\nbetween different  parts, without  any barrier. This freedom
\nof trade,  commerce and\t intercourse throughout\t the country
\nwithout any  ‘State barriers’ is not confined to inter-State
\ntrade but  also includes intra-State trade as well. In other
\nwords,\tsubject\t  to  the   provisions\tof   Part  XIII,  no
\nrestrictions can be imposed upon the flow of trade, commerce
\nand intercourse, not only between one State and another, but
\nbetween any two points within the territory of India whether
\nany State border has to be crossed or not.\n<\/p>\n
     It is  now well settled that the regulatory measures or
\nmeasures imposing  compensatory taxes do not come within the
\npurview of the
\n1167<\/span>
\nrestrictions  contemplated   by\t Art.  301.  The  regulatory
\nmeasures should,  however, be  such as\tdo  not\t impede\t the
\nfreedom of  trade, commerce  and intercourse.  It cannot  be
\nsaid that  the instructions conveyed by the State Government
\nby the impugned teleprinter message imposing the requirement
\nfor the\t making of  an endorsement  by the  Deputy Marketing
\nOfficer or  the Senior\tMarketing Officer  or  the  physical
\nverification  of  stocks  of  wheat  during  the  course  of
\ntransit, are  a\t ‘restriction’\ton  the\t freedom  of  trade,
\ncommerce and intercourse within the country, i.e, across the
\nState or  from one  part of  the State to another. These are
\nnothing but  regulatory measures  to ensure  that the excess
\nstock of  wheat held by a wholesale dealer, commission agent
\nor a  retailer is  not transported  to a  place outside\t the
\nState or  from\tone  district  to  another.  Even  if  these
\nrequirements are  construed to\tbe a  ‘restriction’  on\t the
\ninter-State or\tintra-State trade, the limitation so imposed
\non the\tenjoyment of  the right\t cannot be  considered to be
\narbitrary or of an excessive nature. Nor can it be said that
\nsuch restrictions do not satisfy the test of reasonableness.\n<\/p>\n
     The question  whether or  not the\tseizure of the wheat
\nwas for\t contravention of any order issued under s. 3 of the
\nAct is\tpending investigation before the Additional District
\nMagistrate (Civil  Supplies), Agra. For the establishment of
\ntheir rights  the petitioners  have still  to establish that
\nthe wheat  in question\twas bought by them in open market in
\nDelhi and elsewhere and was being merely transported through
\nthe State  of Uttar  Pradesh in\t the course  of\t inter-State
\ntrade and  commerce. If\t that  be  so,\tthen  there  was  no
\ncontravention of  any order issued by the Central Government
\nunder s.  3 or\tby the State Government under s. 3 read with
\ns. 5  of the  Act. If,\ton the\tcontrary, the wheat had been
\npurchased by  them at Agra or nearby places within the State
\nof Uttar  Pradesh, the\tquestion would\tarise  whether\tsuch
\npurchase, storage  or sale  of wheat was in contravention of
\nany of\tthe two\t Control Orders.  In  case  there  was\tsuch
\ncontravention of  any of  the provisions  of the two Control
\nOrders, then  there was\t undoubtedly the power of search and
\nseizure. The case of the State Government before us was that
\nthe source  of power  to effect\t the  seizure  was  the\t two
\nControl Orders. It was asserted that the wheat was not being
\ntransported during  the\t course\t of  inter-State  trade\t and
\ncommerce from  the Union Territory of Delhi to various other
\nStates, but  had, in  fact, been  purchased at\tAgra and was
\nbeing lifted  from  the\t State\tof  Uttar  Pradesh  and\t had
\ntherefore to  be seized\t at the\t check-post at Saiyan and at
\nAgra. Under  cl. 3  of 1976  Order, no\tperson can  carry on
\nbusiness as a
\n1168<\/span>
\ndealer or commission agent except and in accordance with the
\nterms and  conditions of  a licence issued in that behalf by
\nthe licensing  authority. The term ‘dealer’ is defined in s.
\n2(c) of\t the Order  to mean a person engaged in the business
\nof  purchase,  sale  or\t storage  for  sale  of\t foodgrains.
\nAccording to  the State, the seized wheat had been purchased
\nat Agra\t in the\t course of  trade and they were not isolated
\ntransactions and,  therefore, the  Delhi  traders  committed
\ncontravention of  cl. 3\t of the\t 1976 Order.  Cl. 14 thereof
\nconfers the  power of  search and  seizure on an enforcement
\nofficer or  the licensing  authority or\t any  other  officer
\nauthorised by  the State  Government  in  that\tbehalf.\t The
\nexpression ‘enforcement\t officer’ is  defined in cl. 2(e) of
\nthat Order  and it  includes the Chief Marketing Officer and
\nin that\t capacity the Chief Marketing Officer, having reason
\nto believe that contravention of the provisions of the Order
\nhad been,  was being,  or was about to be committed, had the
\npower to  seize the  trucks at\tthe check-post at Saiyan and
\neffect the  seizure of the trucks laden with wheat and bring
\nthem to the purchase point at Agra.\n<\/p>\n
     Furthermore, under cl. 4 of the 1978 Order, as amended,
\nno person  who is  a wholesale dealer, commission agent or a
\nretailer, shall\t have in stock wheat in quantities exceeding
\n250 quintals, 250 quintals and 20 quintals respectively at a
\ntime. Cl.  6 confers  the power\t of search and seizure on an
\nenforcement officer  which  term  as  defined  in  cl.\t2(d)
\nlikewise includes  the Chief  Marketing Inspector, Under cl.
\n6(d), the  Chief  Marketing  Inspector,\t as  an\t enforcement
\nofficer, had  the power\t to seize  any article in respect of
\nwhich he  had reason  to believe that a contravention of the
\nOrder had been, was being, or was about to be committed. The
\nfixation of  the maximum  limits of  stocks of\twheat at 250
\nquintals 250  quintals and 20 quintals respectively, which a
\nwholesale dealer,  commission agent  or a retailer may hold,
\nat any\tone time, has necessarily the effect of freezing the
\nexcess stock  of wheat\tlying with  such dealer.  This\talso
\nresults in  preventing the  movement of such excess stock of
\nwheat from  the State  of Uttar\t Pradesh  to  various  other
\nStates or  from one district to another. The excess stock of
\nwheat lying  with such\tdealer, that is, a wholesale dealer,
\ncommission agent  or a\tretailer, in  truth  and  substance,
\nbecame their ‘unlicensed stock’. If really the Delhi traders
\nhad purchased  the excess  stock  of  wheat  from  wholesale
\ndealers, commission  agents or\tretailers in  the  State  of
\nUttar Pradesh, as is alleged, it is possible to contend that
\nthere was  a contravention of the provisions of cl. 4 of the
\n1978 Order.  The question  whether the\tseizure was  for any
\ncontravention of any Order issued under
\n1169<\/span>
\ns. 3  of the  Act has  to be  determined by  the  Additional
\nDistrict Magistrate  (Civil Supplies), Agra, on the evidence
\nadduced by the parties before him.\n<\/p>\n
     The facts\tbeing controverted,  the petitioners have no
\nright to  relief under\tArt. 32 of the Constitution. Each of
\nthe petitioners\t has filed a sheaf of documents showing that
\nthe wheat had been purchased in the open market in Delhi and
\nelsewhere, that\t the trucks  laden  with  their\t wheat\twere
\naccompanied by\tthe relevant  bills, goods  receipts, inter-
\nState transit  passes etc., that the trucks in question were
\nallowed to  cross the  check-posts at  Kotwan on  the border
\nbetween the  Union Territory of Delhi and the State of Uttar
\nPradesh. but were seized either at the check-posts at Saiyan
\non the border between the States of Uttar Pradesh and Madhya
\nPradesh or  at Agra,  while they were in transit through the
\nState of  Uttar Pradesh.  It was  also asserted that all the
\ndocuments were seized and taken away by the Senior Marketing
\nInspector, and\tthat he\t had given  an acknowledgment of the
\nsame. Learned  counsel appearing  for the  State  vehemently
\ncontends  that\t these\tdocuments  were\t not  shown  to\t the
\nauthorities concerned and it is for the petitioners to prove
\nthese documents\t before the  Additional District  Magistrate
\n(Civil Supplies),  Agra, in support of their claim We cannot
\nact on\tthe documents  because the transactions are still to
\nbe proved.  It is asserted on behalf of the State Government
\nthat such  documents could always be brought into existence,
\nparticularly when  none of  the transactions  were  effected
\nthrough a  Bank. This  Court cannot obviously pronounce upon
\nthe genuineness of the transactions or record any finding on
\nthe basis of the documents when the facts are in dispute.\n<\/p>\n
     There still remains the question whether the seizure of
\nwheat  amounts\t to  deprivation  of  property\twithout\t the
\nauthority of law. Art. 300A provides that no person shall be
\ndeprived of his property save by authority of law. The State
\nGovernment cannot  while taking\t recourse to  the  executive
\npower of  the State  under Art. 162, deprive a person of his
\nproperty. Such\tpower can  be exercised only by authority of
\nlaw and\t not by a mere executive fiat or order. Art. 162, as
\nis clear  from\tthe  opening  words,  is  subject  to  other
\nprovisions  of\t the   Constitution.   It   is,\t  therefore,
\nnecessarily subject  to Art.  300A. The\t word ‘law’  in\t the
\ncontext of  Art. 300A must mean an Act of Parliament or of a
\nState Legislature,  a rule, or a statutory order; having the
\nforce of  law, that  is positive  or  State  made  law.\t The
\ndecisions in Wazir Chand v. The State of Himachal<\/a>
\n1170<\/span>
\nPradesh and Bishan Das and others v. The State of Punjab and
\nothers<\/a> are  an authority for the proposition that an illegal
\nseizure amounts\t to  deprivation  of  property\twithout\t the
\nauthority of  law. In Wazir Chand’s case (supra), the police
\nin India  seized goods\tin possession  of the  petitioner in
\nIndia at  the instance\tof the\tpolice of the State of Jammu
\nand Kashmir.  The  seizure  was\t admittedly  not  under\t the
\nauthority of law, inasmuch as it was not under the orders of
\nany Magistrate;\t nor was  it under ss. 51, 96, 98 and 165 of
\nthe Code of Criminal Procedure, 1898, since no report of any
\noffence committed  by the  petitioner was made to the police
\nin India,  and the Indian police were not authorised to make
\nany investigation.  In those  circumstances, the  Court held
\nthat the  seizure was  not with\t the authority\tof  law\t and
\namounted to  an infringement  of the fundamental right under
\nArt. 31(1).  This view\twas reaffirmed\tin Bishan Das’s case
\n(supra).\n<\/p>\n
     The effect\t of the Constitution (Fourth) Amendment Act,
\n1955, is  that there can be no ‘deprivation’ unless there is
\nextinction of  the right  to property.\tIt is urged that the
\nseizure of  wheat was  not with\t a view to extinction of the
\nrights of  the petitioners,  but the  property in the seized
\nwheat was  theirs. No doubt, the wheat had to be sold, as it
\nwas subject to speedy and natural decay, but the petitioners
\nare entitled to the sale proceeds, if ultimately it is found
\nby the\tAdditional  District  Magistrate  (Civil  Supplies),
\nAgra, that  there was  no contravention\t by them of an order
\nissued under  s. 3 of the Act. It is not necessary for us to
\ndeal with the question whether an illegal seizure amounts to
\n‘deprivation’ of  property within  the meaning\tof Art. 300A
\nfor purposes  of this case, as the State Government does not
\ndispute the  right of  the petitioners to the sale proceeds.
\nIt is  true that  the seizure  was with intent to confiscate
\nunder s.  6A of the Act, but that would not make the seizure
\nillegal,  if,\tultimately,  it\t is  found  that  there\t was
\ncontravention of an order issued under s. 3 of the Act.\n<\/p>\n
     If the  facts  were  not  in  controversy\tand  if\t the
\npetitioners were  also able to prove that there was wrongful
\nseizure of wheat by the State Government of Uttar Pradesh at
\nthe check-post of Saiyan on the border, while in transit, in
\nthe course  of inter-State trade and commerce from the Union
\nTerritory of  Delhi, perhaps,  they would be entitled to the
\nreturn of the seized wheat, or, in the alternative,
\n1171<\/span>
\nto the\tpayment of  price thereof.  The State  contests\t the
\nright  of   the\t Court\t to  investigate   into\t the  facts,
\nparticularly when  the matter  is a  fact in  issue  in\t the
\naforesaid  proceedings\t before\t the   Additional   District
\nMagistrate (Civil  Supplies), Agra.  Normally, it is not the
\nfunction  of   this  Court  to\tinvestigate  into  facts  in
\nproceedings under  Art. 32 of the Constitution when they are
\ncontroverted with a view to discerning the truth. The matter
\nmust, in  a situation like this, be left to the fact-finding
\nbody. For  the establishment  of their right to relief under
\nArt. 32, the petitioners must, in our opinion, establish the
\nnecessary  fact\t  before  the\tsaid   Additional   District
\nMagistrate in  the proceedings\tunder s.  6A of\t the Act. If
\nthey fail  to get  relief in such proceedings, their obvious
\nremedy lies in a suit for damages for wrongful seizure.\n<\/p>\n
     The question  that the  seizures were  in\treality\t for
\nprocurement of\twheat in furtherance of the directive of the
\nCentral Government,  and not  for breach  of the two Control
\nOrders\tand,  therefore,  were\tnothing\t but  a\t ‘colourable
\nexercise of  power’, is\t dependent on  facts to\t be found on
\ninvestigation. Further,\t the question  that there  being  no
\ncontrol price  for wheat, the wheat should have been sold by
\npublic auction,\t is again  a question  that must  be  raised
\nbefore the  Additional District Magistrate (Civil Supplies),
\nAgra, in  the proceedings  pending before him under s. 6A of
\nthe Act.\n<\/p>\n
     Turning  to   the\tpetitions   under  Art.\t 32  of\t the
\nConstitution by\t wholesale dealers  of foodgrains  from\t the
\nState of  Uttar Pradesh, learned counsel appearing for these
\npetitioners  challenged\t the  impugned\tteleprinter  message
\ndated March 31, 1981, and the Notification No. P. XXIX-Food-
\n5-5(42)\/80  dated  April  21,  1981,  issued  by  the  State
\nGovernment of  Uttar Pradesh,  by which\t cl. 4\tof the Uttar
\nPradesh Foodgrains  (Procurement and  Regulation  of  Trade)
\nOrder,\t1978,\thas  been  amended,  particularly  on  three
\ngrounds, namely,  (1) the  impugned notification  fixing the
\nmaximum limit  of wheat\t permitted  to\tbe  possessed  by  a
\nwholesale  dealer   at\t250  quintals,\tat  a  time,  is  an
\nunreasonable restriction  on the freedom of trade guaranteed
\nunder Art.  19(1)(g) of\t the Constitution;  (2) there  is no
\ndistinction made between a wholesale dealer and a commission
\nagent in as much as the maximum limit of wheat allowed to be
\npossessed by  them is the same, i.e., 250 quintals at a time
\nand the\t fixation of  such limit  in the case of a wholesale
\ndealer is  arbitrary, irrational  and  irrelevant  and\tthus
\nviolative of  Art. 14  of  the\tConstitution;  and  (3)\t the
\ninstructions  conveyed\t by  the  State\t Government  by\t its
\nteleprinter  message   dated   March   31,   1981,   placing
\nrestrictions
\n1172<\/span>
\non movement  of wheat by traders on private account from the
\nState of Uttar Pradesh to various other States and on inter-
\ndistrict movement  of wheat within the State, were in breach
\nof their  fundamental right  under Art.\t 19(1)(g) read\twith
\nArt. 301 of the Constitution.\n<\/p>\n
     The first\tand second  contentions may  conveniently be
\ndealt  with   together.\t In   order  to\t  appreciate   these
\ncontentions, it is necessary to state a few facts:\n<\/p>\n
     During the\t year 1979-80,\tthe country  was victim to a
\nvery serious  drought which  affected with Kharif as well as
\nRabi crops.  The Government  of India,\ttherefore,  fixed  a
\ntarget of 9.5 million tonnes of wheat to be purchased in the
\nsummer months  of 1981\tfor the\t national buffer  stock.  It
\nfixed the  procurement price  at  Rs.  130  per\t quintal  as
\nagainst the support price of Rs. 127 per quintal recommended
\nby the\tAgricultural Price  Commission to  provide a  better
\nincentive to the farmers. The procurement was carried out as
\na measure  of  price  support  without\tany  restriction  on
\nmovement from  one State  to another.  However, some  of the
\nStates were  implementing local laws with regard to ensuring
\nthat  the   private  trade   adhered  to   the\tstock  limit
\nrestrictions on\t them and  did not  try to corner stocks for
\nspeculation  purposes.\t The  original\t target\t fixed\t for
\nprocurement was\t 9.5 million  tonnes but at the end of June,
\nonly 6.5  million  tonnes  had\tbeen  purchased,  leaving  a
\ndeficit of  3  million\ttonnes.\t The  result  was  that\t the
\nGovernment of  India was  thus forced  to  buy\t1.5  million
\ntonnes of  wheat  in  the  world  market.  The\tGovernment’s
\nprocurement drive was mainly frustrated by wholesale dealers
\nof foodgrains  cornering the  stocks of\t wheat by  paying  a
\nprice higher than the procurement price to the farmers.\n<\/p>\n
     The imperatives  of the  situation\t demanded  that\t the
\nspeculative tendencies\tof the trade were curbed by strictly
\nenforcing the  stock limits of traders. Under original cl. 4
\nof the\tUttar Pradesh Foodgrains (Procurement and Regulation
\nof Trade)  Order, 1978, a wholesale dealer, commission agent
\nor a  retailer could  have in  stock wheat not more than 750
\nquintals, 750 quintals and 100 quintals respectively, at any
\ntime. In  view of  the worsening  situation in\tthe national
\nbuffer stock  and in  the light\t of  the  experience  gained
\nduring the  past few  years, the State Government was of the
\nopinion that  it was  necessary and  expedient to re-fix the
\nstock limits  of such dealers. This was expected to maximise
\nprocurement of\twheat to  meet\tthe  requirement  of  public
\ndistribution, as well as, the buffer stock.\n<\/p>\n
1173<\/span><\/p>\n
     It cannot\tbe asserted  that the restriction imposed by
\nthe State Government on wholesale dealers of wheat is either
\narbitrary or  is of an excessive nature. The fixation of the
\nstock limit  of wheat  to be possessed by wholesale dealers,
\nat any\ttime, at  250 quintals is an important step taken by
\nthe State Government to obviate hoarding and black-marketing
\nin wheat which is in short supply. It is hardly necessary to
\nemphasise the  extent and  urgency of  the evil sought to be
\nremedied thereby.  Perhaps fixation  of the minimum limit of
\nwheat permitted to be possessed by a wholesale dealer at 250
\nquintals, at  a time,  is too  low, but\t the restriction  so
\nimposed cannot be treated to be arbitrary or of an excessive
\nnature, beyond what is required in the national interest. It
\nis a  matter of\t common knowledge  that wholesale dealers of
\nfoodgrains mainly operate in large cities and towns and have
\nthe  means   and  capacity   to\t manipulate  the  market  by
\nwithholding stocks  of a  commodity. There was need to check
\nsuch speculative  tendencies in\t the trade. It was therefore
\nfelt expedient\tto re-fix  the\tstock  limit  of  wheat\t for
\nwholesale dealers  at 250 quintals at a time, as in the case
\nof a  commission agent.\t The underlying\t idea  is  that\t the
\nwholesale  dealers  should  be\tallowed\t to  continue  their
\ntrading activities within reasonable limits. The fixation of
\nstock limit  at 250  quintals implies that wholesale dealers
\ncan have  at any  time, in  stock, a wagon-load of wheat. In
\nKrishan Lal  Praveen Kumar  & Ors.  etc.  v.  The  State  of
\nRajasthan, this\t Court has  interpreted the  words  ‘at\t any
\ntime’ as  meaning ‘at  any given  time’. This  means that  a
\nwholesale dealer  should not  have in  stock more  than\t 250
\nquintals at  a time.  But there\t is  nothing  to  prevent  a
\nwholesale dealer from entering into a series of transactions
\nduring the  course of  the day.\t This Court  in Krishan\t Lal
\nParveen Kumar’s\t case (supra)  and Suraj Mal Kailash Chand &
\nOrs. v.\t Union of India & Anr.,<\/a> has upheld the validity of a
\nsimilar notification  dated March  23, 1981,  issued by\t the
\nState Government  of Rajasthan\tin exercise  of\t the  powers
\nconferred  by\tcl.  18\t of  the  Rajasthan  Trade  Articles
\n(Licensing and\tControl) Order,\t 1980,\tfixing\tthe  maximum
\nlimit of  wheat to  be possessed by a dealer at any one time
\nat 200\tquintals, on  the ground  that it  is  a  reasonable
\nrestriction by\tthe State  Government within  the meaning of
\nArt. 19(6)  of the Constitution. In view of these decisions,
\nit is  difficult to  conceive as to how the contention based
\non Art. 19(1)(g) of the Constitution can survive.\n<\/p>\n
1174<\/span><\/p>\n
     True it  is, if the governmental action is arbitrary or
\nthere is  no rational  nexus to\t the  object  sought  to  be
\nachieved it is liable to be struck down as violative of Art.
\n14 of  the Constitution.  The State  Government has  adopted
\nvarious measures  in the  interest of the general public for
\nthe control  of production,  supply and distribution of, and
\ntrade and  commerce in,\t essential commodities.\t To  obviate
\nhoarding  and\tblackmarketing\t in   foodstuffs,   it\t has
\npromulgated the\t Order. It introduces a system of checks and
\nbalances to  achieve the object of the legislation, i.e., to
\nensure equitable  distribution and availability of essential
\ncommodities at\tfair prices.  It cannot be said that looking
\nto  the\t  prevailing  conditions,  the\timposition  of\tsuch
\nrestrictions does  not satisfy\tthe test  of reasonableness.
\nNor can\t it be said that the fixation of such stock limit is
\narbitrary or irrational having no nexus to the object sought
\nto be  achieved and  is, therefore, violative of Art. 14. On
\nthe contrary,  the limitation  imposed fixing  a stock limit
\nfor a  wholesale dealer\t at 250\t quintals  is  a  reasonable
\nrestriction  within   the  meaning  of\tArt.  19(6)  of\t the
\nConstitution.\n<\/p>\n
     One  further   point  requires   to  be   noticed.\t The
\ncontention that\t the action taken by the State Government in
\nissuing the  impugned  teleprinter  message  amounts  to  an
\n‘intrusion’ on\tthe fundamental\t right to  carry on trade or
\nbusiness under\tArt. 19(1)(g)  or on  the freedom  of trade,
\ncommerce and  intercourse under Art. 301 of the Constitution
\nappears to  be wholly  misconceived. As\t already stated\t the
\ninstructions  conveyed\t by  the  State\t Government  by\t the
\nimpugned teleprinter  message imposing\tthe requirement\t for
\nthe making of an endorsement by the Deputy Marketing Officer
\nor the Senior Marketing Officer or the physical verification
\nof stocks  of wheat  during the course of transit, are not a
\n‘restriction’ on  the fundamental right to carry on trade or
\nbusiness guaranteed under Art. 19(1)(g) or on the freedom of
\ntrade, commerce\t and intercourse  under Art.  301. These are
\nnothing but  regulatory measures  to ensure  that the excess
\nstock of  wheat held by a wholesale dealer, commission agent
\nor a  retailer is  not transported  to a  place outside\t the
\nState or  from\tone  district  to  another.  Even  if  these
\nrequirements are  considered to be a ‘restriction’ on inter-
\nState or  intra-State trade,  that is,\tacross the  State or
\nfrom one  part of  the State  to another,  the limitation so
\nimposed on  the enjoyment  of the right cannot be considered
\nto be arbitrary or of an excessive nature and thus violative
\nof Art.\t 19(1)(g) or Art. 301 of the Constitution. The State
\nGovernment in  its return has stated that there is no ban on
\nthe export  of wheat  from the\tState of  Uttar\t Pradesh  to
\nvarious other States or from one
\n1175<\/span>
\ndistrict to  another within the State, subject to the making
\nof an  endorsement by  the Deputy  Marketing Officer  or the
\nSenior Marketing  Officer concerned. The petitioners who are
\nwholesale dealers  of  foodgrains  in  the  State  of  Uttar
\nPradesh are,  therefore, free  to carry\t on  their  business
\nwithin the permissible limits, i.e., they may carry on their
\ntrade or  business or  enter into inter-State or intra-State
\ntransactions of\t wheat subject\tto the\tstock limit  of\t 250
\nquintals at a time.\n<\/p>\n
     In the  result, the  writ petitions  must fail  and are
\ndismissed. The stay orders passed by the Court, from time to
\ntime, stand vacated. Formal orders for vacating stay granted
\nin those matters need not be issued. There shall be no order
\nas to costs.\n<\/p>\n
S.R.\t\t\t\t  Petitions dismissed.\n1176<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bishambhar Dayal Chandra Mohan … vs State Of Uttar Pradesh & Ors on 5 November, 1981 Equivalent citations: 1982 AIR 33, 1982 SCR (1)1137 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: BISHAMBHAR DAYAL CHANDRA MOHAN AND OTHERS. ETC. ETC. Vs. RESPONDENT: STATE OF UTTAR PRADESH & ORS. DATE OF JUDGMENT05\/11\/1981 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-53206","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBishambhar Dayal Chandra Mohan ... vs State Of Uttar Pradesh & Ors on 5 November, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bishambhar-dayal-chandra-mohan-vs-state-of-uttar-pradesh-ors-on-5-november-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bishambhar Dayal Chandra Mohan ... vs State Of Uttar Pradesh & Ors on 5 November, 1981 - 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