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PETITIONER: BISHAMBHAR DAYAL CHANDRA MOHAN AND OTHERS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT05/11/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1982 AIR   33            1982 SCR  (1)1137  1982 SCC  (1)  39        1981 SCALE  (3)1685  CITATOR INFO :  F          1982 SC1016  (13,14)  R          1985 SC 660  (25)  RF         1987 SC 741  (16)

ACT:      Uttar  Pradesh   Food  Grains  Dealers  (Licensing  and Restriction on  Hoarding) Order, 1976 and Uttar Pradesh Food Grains (Procurement  and Regulation  of Trade)  Order, 1978, clause (4)  as amended  by Notification No. P-XXIX-Food-5-5- (42)/80 dated  April 21,1981-Teleprinter  Message issued  by the  State   Government  dated   March  31,  1981  regarding enforcement  of   the  Orders-Constitutional   validity  of- Articles 14, 19(1)(g), 162, 300A and 301 of the Constitution of India.      Constitution of  India, Article  32-Jurisdiction of the Supreme Court to  investigate into facts, explained.      Words and  phrases-"Law" occurring  in Article 300A "at any time" and "reasonable restriction", meaning of.

HEADNOTE:      In exercise  of the  powers vested  under the Essential Commodities Act, 1951, the State Government of Uttar Pradesh issued two  orders, namely (1) the Uttar Pradesh Food Grains Dealers (Licensing  and Restriction on Hoarding) Order, 1976 and (2)  the Uttar  Pradesh  Food  Grains  (Procurement  and Regulation of  Trade) Order 1978. By its teleprinter message dated March  31, 1981  to all the Regional Food Controllers, the State Government issued certain further instructions for effective enforcement  of the  two Orders  and in particular regulating the inter-district and outside the State-movement of wheat  by traders  on private  account. By a Notification No. P-XXIX-Food-5-5(42)/80  dated April  21,1981, clause (4) of the  1978 Order,  was amended providing that no wholesale dealer, commission  agent, or a retailer shall have in stock wheat more  than 250  quintals, 250 quintals and 20 quintals respectively, at  any time,  since it was of opinion that it was necessary  or  expedient  so  to  do  for  securing  the equitable distribution  and availability  of  foodgrains  at fair prices.      Pursuant to  the powers  vested  in  them,  the  Senior Marketing Inspector and the Chief Marketing Inspector, Agra, intercepted and  seized the  trucks laden  with wheat of the

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petitioners who are wholesale dealers of foodgrains from the Union Territory  of Delhi  and  the  States  of  Punjab  and Haryana at  the check  post at  Saiyan on the border between the States  of Uttar  Pradesh and  Madhya Pradesh, and after bringing them  back to  the purchase  point at Agra unloaded the wheat  from the said trucks. While the petitioners moved an application  for the  release of  the seized wheat before the Additional  District Magistrate  (Civil Supplies), Agra, the Marketing Inspectors not only lodged First Information 1138 Reports but  obtained an  interim order  on May 23, 1981 for the sale of the seized wheat as it was subject to speedy and natural decay.  The seized  wheat had  been purchased by the State Government  on Government  account at  the procurement price and the sale proceeds were credited into the treasury.      The  petitioners  challenged  the  teleprinter  message dated March  31, 1981  and the  Notification dated April 21, 1981 on  the following  grounds: (1) The Notification fixing the maximum  limit of  wheat permitted  to be possessed by a wholesale  dealer   at  250  quintals,  at  a  time,  is  an unreasonable restriction on the freedom of trader guaranteed under Article  19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by  them is the same, i.e., 250 quintals at a time and the  fixation of  such limit  in the case of a wholesale dealer is  arbitrary, irrational  and  irrelevant  and  thus violative  of  Article  14  of  the  Constitution;  (3)  the instructions  conveyed   by  the  State  Government  by  its teleprinter  message   dated   March   31,   1981,   placing restrictions on  movement of  wheat by  traders  on  private account from  the State  of U.P. to various other States and on inter-district  movement of  wheat within the State, were violative of their fundamental rights under Article 19(1)(g) and Article  301 of the Constitution; (4) the seizure of the consignments of the wheat, while they were in transit in the course of  inter-State trade  and commerce  from  the  Union Territory of  Delhi and  the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without "the authority of law" and in violation of Article  300A of  the Constitution;  (5) the  restriction must be  by "law"  or by  an "order" having the force of law and not  by recourse to the executive authority of the State under Article  162 of  the  Constitution,  that  is,  by  an executive action.  The  teleprinter  message  of  the  State Government dated  March 31,  1981 on  the basis of which the seizures were  effected in truth and substance, had no legal sanction and  cannot be  construed to  be a  notified  order within the  meaning of sub-section (1) read with sub-section (5) of  section 3  of the  Essential Commodities Act; it was nothing but  an executive  direction.  No  executive  action which operates to the prejudice of the citizens can be taken without the authority of law. The seizures effected were not in  compliance   with  the  instructions  contained  in  the teleprinter message  and not  for breach  of the two control Orders and,  therefore, it  was nothing  but  a  "colourable exercise" of  power. The  real purpose  of the  seizure  was procurement of wheat in furtherance of the directives of the Central Government  without any  legal sanction,  since  the farmers  were  not  willing  to  sell  their  wheat  at  the procurement  price;  and  (6)  under  sub-section  2(ii)  of section 6A  of the  Act there  being no  control  price  for wheat, the  wheat should have been sold by public auction by the Additional  District Magistrate while passing an interim order.

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    Dismissing the petitions, the Court ^      HELD:  1:1.   The  restriction  imposed  by  the  State Government  on   wholesale  dealers   of  wheat  is  neither arbitrary nor  is of  an excessive  nature  beyond  what  is required in  the national  interest.  To  check  speculative tendencies  of   the  wholesale   traders  and   others  who manipulate the  market by  withholding stocks of a commodity and to  obviate blackmarketing, the stock limit of wheat was fixed for wholesale dealers at 250 quintals at a time, as in the case  of a  commission agent,  the underlying idea being that the wholesale dealers should be allowed to 1139 continue their  trading activities within reasonable limits. The fixation  of stock  limit at  250 quintals  implies that wholesale dealers  can have  at any time, in stock, a wagon- load of  wheat. The  words "at  any time" mean "at any given time", which  means that  a wholesale dealer should not have in stock  more than  250 quintals  at a  time. But  there is nothing to  prevent a  wholesale dealer from entering into a series of transaction during the course of the day. [1173 A- E]      1:2. The  State Government had adopted various measures in the  interest of  the general  public for  the control of production,  supply  and  distribution  of,  and  trade  and commerce in, essential commodities. The Order fixing a stock limit introduces  a system of checks and balances to achieve the object  of the legislation, that is, to ensure equitable distribution and  availability of  essential commodities  at fair prices.  Looking  to  the  prevailing  conditions,  the imposition  of  such  restrictions  satisfies  the  test  of reasonableness. The  fixation of  such stock  limit  is  not arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, intra vires of Article 14. The limitation  imposed fixing a stock limit for a wholesale dealer at  250 quintals  is also  a  reasonable  restriction within the  meaning of  Article 19(6)  of the  Constitution. [1174 A-D]      2:1. The  teleprinter message  No.  PP-1061/XXIX.Food-5 dated 31st  March, 1981  was  in  the  nature  of  executive instruction of  the State  Government to  the Regional  Food Controllers of  the various  regions to be more vigilant and to secure  due observance of the control orders. [1156 B, E- F, 1163 C]      2:2. The  instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the  making of  an endorsement  by the  Deputy Marketing Officer or  the Senior  Marketing Officer  or  the  physical verification  of  stocks  of  wheat  during  the  course  of transit, are  not a  ’restriction’ or  an ’intrusion’ on the fundamental right  to carry  on trade or business guaranteed under Article  19(1)(g) or on the freedom of trade, commerce and intercourse  under Article  301. These  are nothing  but regulatory measures to ensure that the excess stock of wheat held by  a wholesale  dealer, commission agent or a retailer is not  transported to a place outside the State or from one district  to   another.  Even   if  these  requirements  are considered to  be a  ’restriction’ on  inter-State or intra- State trade,  that is,  across the State or from one part of the State  to another,  the limitation  so  imposed  on  the enjoyment of  the right cannot be considered to be arbitrary or of  an excessive  nature and  thus violative  of  Article 19(1)(g) or  Article 301 of the Constitution. There being no ban on  the export  of wheat from the State of Uttar Pradesh to various  other States  or from  one district  to  another

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within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned, the  Petitioners who  are  wholesale  dealers  of foodgrains in  the State  of Uttar  Pradesh are,  therefore, free to  carry on  their  business  within  the  permissible limits, that  is, they  may carry on their trade or business or enter  into inter-State  or intra-State  transactions  of wheat subject to the stock limit of 250 quintals, at a time. [1174 D-H, 1175 A-B]      2:3. The teleprinter message dated March 31, 1981 was a direct sequel  to the  Centre’s directives  contained in its earlier teleprinter message and intended or meant to achieve three main  objectives, namely, (i) to provide price support in wheat  to purchasers with a view to sustain, maintain and maximise the pro- 1140 curement of  wheat; (ii)  to  prevent  hoarding  and  black- marketing; and  (iii) to  provide for equitable distribution and availability  of wheat  at fair  prices. The  directions were  obviously   meant  to   subserve  the  object  of  the legislation  and   were  in   public  interest.   The  State Government was  committed to  provide price support in wheat to producers  and hence  to maximise  procurement of  wheat, there is  nothing unusual  on the  State Government  issuing such executive instructions. [1156 E-F, 1160 D-E]      2:4.  Even   assuming  that  the  impugned  teleprinter message is  not relatable  to the  control Orders, the State Government undoubtedly  could, in  exercise of the executive power of  the State,  introduce a  system of verification on movement of wheat from the State of Uttar Pradesh to various other States  at the  check post  on the  border  and  place restrictions on  inter-district movement of wheat by traders on private account within the State. [1156 E-F]      Ram Jawaya  Kapur v.  State of  Punjab [1955] 2 SCR 225 and Naraindas  Indurkhya v.  State of Madhya Pradesh & Ors., [1974] 3 SCR 624, explained and followed.      3:1. The  State Legislature is competent to enact a law on the  subject covered  by Entry  33, List  III, regulating trade and  commerce in,  and the  production, and supply and distribution of "foodstuffs". The Essential Commodities Act, 1955 was  enacted by  Parliament in  exercise of  concurrent jurisdiction  under  Entry  73,  List  II,  of  the  Seventh Schedule to  the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would  not deprive the State Legislature of its jurisdiction thereunder.  The executive  power of  the State which is  coextensive with  the legislative power is subject to the  limitation contained  in Article  162 which  directs that in  any matter with respect to which the legislature of a  State  and  Parliament  have  power  to  make  laws,  the executive power  of the  State  shall  be  subject  to,  and limited by,  the executive  power expressly conferred by the Constitution or by any law made by Parliament upon the Union of authorities thereof. [1158 F-H, 1159 A-B]      3:2. The  State in  exercise of its executive powers is charged with  the duty and the responsibility of carrying on the general  administration of  the State.  So long  as  the State Government  does not  go against the provisions of the constitution of  any law,  the width  and amplitude  of  its executive power  cannot be  circumscribed. If  there  is  no enactment  covering   a  particular  aspect,  certainly  the Government can  carry on  the administrative  directions  or instructions, until  the legislature  makes a  law  in  that behalf.  Otherwise   the  administration  would  come  to  a standstill. [1157 B-C]

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    3:3. The  executive power  of "search and seizure" is a necessary concomitant  of  a  welfare  State.  It  tends  to promote the well being of the nation. Many questions arising in the  field of  search and  seizure are factual in nature, involving varying degrees of difference among the infinitely diverse facts.  It is  a limitless area where not only every factual variation  presents a  new constitutional  question, but it  is a peculiar field in which the decisions of courts do not  help in  clarifying the  law. The  decisions in  the field are  of little precedental value, because the more the cases that  are  decided  the  more  issues  arise,  through possible factual variation. [1159 B-E] 1141      4:1. The  quintessence of  the Constitution is the rule of the  law. The  State or  its  executive  officers  cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. [1161 A]      State of  Madhya Pradesh v. Thakur Bharat Singh, [1967] 2  SCR  454,  Satwant  Singh  Sawhney  v.  Dr.  Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., [1967]  3 SCR  525 at 542; Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976] 2 SCR 347 at 524, reiterated.      4:2. The  Essential Commodities  Act, 1955  is a  "law" within the  meaning  of  Article  302  of  the  Constitution imposing reasonable  restrictions on  the right  to carry on trade and  commerce as  guaranteed by  Article 19(1)(g)  and Article 301 of the Constitution. The object of the Act is to provide, in  the interest  of the  general  public  for  the control, production,  supply and  distribution of, and trade and commerce in, certain essential commodities. [1161 D-E]      5. From the point of view either of Entry 54 List II or of Article 301 of the Constitution, the State Legislature is competent to  set up  the check  posts and  barriers on  the State’s borders,  designed and  meant to  prevent evasion of sales tax  and other  dues. Just  as inter-State  trade  and commerce must  pay its  way  and  be  subject  to  taxation, persons engaged in inter-state trade or commerce are equally subject to  all regulatory  measures.  The  check  posts  or barriers set  up by the State Government under section 28 of the U.P.  Sales Tax  Act, 1948, which is legally accepted as valid and also considered not a restriction or impediment to the freedom of trade, commerce and intercourse granted under Article 301  of the  Constitution, can certainly be utilised as a  machinery for due observance of the laws, for example, for verification and control of movement of wheat by traders on private  account from  the  State  of  Uttar  Pradesh  to various other States.           [1159 F, 1160 B-D]      6:1.  The  fundamental  right  to  carry  on  trade  or business guaranteed under Article 19(1)(g) or the freedom of inter-State trade,  commerce and  intercourse under  Article 301 of  the  Constitution,  has  its  own  limitations.  The liberty of  an  individual  to  do  as  he  pleases  is  not absolute. It  must yield  to the  common good.  Absolute  or unrestricted individual  rights do  not and  cannot exist in any modern  State. There  is no  protection  of  the  rights themselves  unless   there  is  a  measure  of  control  and regulation of the rights of each individual in the interests of all.  Whenever such a conflict comes before the Court, it is its  duty to  harmonise the  exercise  of  the  competing rights. The  Court must  balance the  individual’s rights of freedom of  trade under  Article 19(1)(g) and the freedom of inter-State trade  and commerce under Article 301 as against the national  interest. Such a limitation is inherent in the

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exercise of those rights. [1164 E-H]      6:2. Under  Article 19(1)(g)  of  the  Constitution,  a citizen has  the right  to carry on any occupation, trade or business and  the only  restriction on this unfettered right is the  authority of  the  State  to  make  a  law  imposing reasonable restrictions under clause (6). [1165 A]      6:3. The  expression "reasonable restriction" signifies that the  limitation imposed on a person in enjoyment of the right should  not be  arbitrary or  of an  excessive nature, beyond what  is required in the interests of the public. The test  of  reasonableness,  wherever  prescribed,  should  be applied to each individual 1142 statute impugned,  and  no  abstract  standard,  or  general pattern of  reasonableness can be laid down as applicable in all cases.  The restriction which arbitrarily or excessively invades the  right cannot  be said to contain the quality of reasonableness  and  unless  it  strikes  a  proper  balance between the  freedom guaranteed in Article 19(1) (g) and the social control  permitted by  clause (6)  of Article  19, it must be held to be wanting in that quality. [1165 B-D]      6:4. Several  steps taken,  in the  instant case,  like prevention of  movement of  stock of  wheat to various other States, movement  of wheat  from  one  district  to  another within  the   State  only  after  the  verification  of  the transaction and  due endorsement  by  the  Deputy  Marketing Officer or  the Senior  Marketing Officer concerned and also the physical  verification at  the check post on the State’s borders etc.  were designed to prevent a price rise in wheat in the  State of  Uttar Pradesh  and to  prevent outflow  of wheat from  the State  to various  other States and from one district to  another district  within the  State. The  whole object  was   to  ensure   that  the  wholesale  dealers  in foodgrains did not corner stocks of wheat for the purpose of speculation, and  hence the  steps taken were reasonable and in the  interests of  the general public. If, therefore, the seizure can  be justified  on the basis of any valid law, it cannot be held to be illegal. [1165 D-H]      7:1.  Article   301  imposes   a  limitation   on   all legislative power  in order  to secure  that trade, commerce and intercourse  throughout the  territory of India shall be free. Although  Article 301  guarantees that trade, commerce intercourse throughout  the country shall be free, the right to carry on inter-State trade and commerce may be subject to reasonable restrictions  in the  interests  of  the  general public. [1165 A, 1166 A, C]      7:2. The  word ’free’  in Article  301  does  not  mean freedom  from   laws  or   from  regulations.   Article  301 guarantees  freedom   of  trade,  commerce  and  intercourse throughout the  country from  any State  barriers. The whole object was  to bring about the economic unity of the country under a  federal structure, so that the people may feel that they are  members of one nation. One of the means to achieve this object  is to guarantee to every citizen in addition to the  freedom   of  movement  and  residence  throughout  the country, which  is achieved  by Article  19(1)(d) and (e) is the freedom  of movement  or passage of commodities from one part of  the country  to another.  This  freedom  of  trade, commerce and  intercourse throughout the country without any "State barriers"  is not  confined to  inter-State trade but also including  intra-State trade  as well.  In other words, subject to  the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only  between the State and another, but between any two points within  the territory  of  India  whether  any  State

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border has to be crossed or not. [1166 D-H]      7:3.  The   regulatory  measure  or  measures  imposing compensatory taxes  do not  come within  the purview  of the restrictions contemplated  by Article  301.  The  regulatory measures should,  however, be  such as  do  not  impede  the freedom of trade, commerce and intercourse. [1166 H, 1167 A]      8:1. In  view of  the provisions  of clause  (3) of the 1976 Order  read with  clauses (4)  & (6) of the 1978 Order, the validly  seized excess  stock of  wheat lying  with such dealer, that  is, a  wholesale dealer, commission agent or a retailer, in  truth and  substance, became their "unlicensed stock". Here,  if really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, com- 1143 mission agents  or retailers  in the State of Uttar Pradesh, as is  alleged, it  is possible  to contend that there was a contravention of  the provisions  of clause  (4) of the 1978 Order.  The   question  whether  the  seizure  was  for  any contravention of any order issued under section 3 of the Act has to  be determined by the Additional District Magistrates (Civil Supplies),  Agra, on  the  evidence  adduced  by  the parties  before  him.  The  facts  being  controverted,  the petitioners have  no right to relief under Article 32 of the Constitution. [1168 D-H, 1169 A-B]      8:2. Supreme  Court can  neither act on documents which are yet  to be  proved  nor  can  they  pronounce  upon  the genuineness of  the transactions  covered by  them or record any finding on the basis of the documents when the facts are in dispute. [1169 E]      8:3. Normally,  it is not the function of Supreme Court to investigate into facts in proceedings under Article 32 of the Constitution  when they  are controverted with a view to discerning the  truth. The  matter must, in a situation like this,  be   left  to   the  fact-finding   body.   For   the establishment of their right to relief under Article 32, the petitioners must  establish the  necessary facts  before the said Additional District Magistrate in the proceedings under section 6A of the Essential Commodities Act. If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure. [1171 A-C]      9:1. The  State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution deprive  a person  of his  property. Such power can be  exercised only by authority of law and not by a mere executive fiat  or order. Article 162 being subject to other provisions of  the Constitution,  is necessarily  subject to Article 300A. [1169 F-G]      Wazir Chand  v. The State of Himachal Pradesh, [1955] 1 SCR 408;  Bishan Das  and Others  v. The State of Punjab and Others, [1962] 2 SCR 69, referred to.      9:2. The word ’law’ in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a  statutory order,  having the  force of  law,  that  is positive or State-made law. [1169 G-H]      9:3. The  effect of the Constitution (Fourth) Amendment Act, 1955,  is that  there can  be no  ’deprivation’  unless there is  extinction of  the right  to  property.  Here,  no doubt, the wheat had to be sold, as it was subject to speedy and natural  decay, but  the petitioners are entitled to the sale proceeds,  if ultimately  it is found by the Additional District Magistrate  (Civil Supplies),  Agra, that there was no contravention  by them of an order issued under section 3 of the  Act. It  is true that the seizure was with intent to confiscate under  section 6A  of the Act, but that would not make the  seizure illegal,  if, ultimately, it is found that

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there was  contravention of  an order issued under section 3 of the  Act. If the facts were not in controversy and if the petitioners were  able to  prove  that  there  was  wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course  of inter-State trade and commerce from the Union Territory of  Delhi, perhaps,  they would be entitled to the return of  the seized  wheat, or, in the alternative, to the payment of price thereof. [1170 D-H, 1171 A] 1144      9:4. The question that the seizures were in reality for procurement of  wheat in furtherance of the directive of the Central Government,  and not  for breach  of the two Control Orders  and,  therefore,  were  nothing  but  a  ’colourable exercise of  power’, is  dependent on  facts to  be found on investigation. Further,  the question  that there  being  no control price  for wheat, the wheat should have been sold by public auction,  is again  a question  that must  be  raised before the  Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act. [1171 C-D]

JUDGMENT:      ORIGINAL JURISDICTION: Food Grains Matters. A. Movement by Road:      (a)  WP. Nos.2907-2908,3234,  3238-39,3164,3254,  3630-           31,3686, 3783, 3816, 4816, 4929-31, 4836-38, 4996-           5001, 5051-54, 5089-93, 5136-46, 5247, 3160, 3634,           4494,4616,4967, 5362-71, 5416-20, 5447-50,5716-17,           5840,6015,6587-89 & 6609-14/81.      (b)  WP. Nos. 5062,5157-58,5451 & 5615-17/81.      (c)  WP Nos. 5097,5042, 5098, 5017, 5214 & 6135-36/81 &           7003/81.      (d)  WP. Nos.3421,  3407, 3408-13, 3422, 3536, 3561-64,           5238,13824, 5466,  5544, 6009,  6130-31, 6572-74 &           6582-83/81.      (e)  WP. Nos.  4904-4905, 5080, 5094, 5239-45, 5358-59,           5395, 5483,  5484-88, 5489-92,  5734-39, 6584-86 &           6817-21/81.      (f)  WP. Nos.4960-62,  4958-59, 5129-33, 5219-20, 5331-           33, 5518-19, 5526, 5428-31 & 5527/81.      (g)  WP. Nos.  4526, 4926,  4995, 5046,  5048-50, 5100,           5101,  5136-46,5402-11,  5436-38,  5560,  5520-21,           5562,5558, 5556,  5559,5550,5546-47,  5552,  5555,           5553-54,5511, 5482, 5618-19,5809-20,6132-33, 6244,           6273-75,6267-72, 5512-14,  5515,6570 and  5562/81,           7027-29 and 7032-34/81.      (h)  WP.  Nos.5221,5380-83,5129-33,5421-22,5440,  5507-           10, 5662,  5806-5807, 6245,  6246, 6265,  6398 and           6684/81. 1145      (i)  WP. Nos.  3592, 3353,  5396, 6016,  6247-48, 6616,           6668 and 6798/81.      (j)  WP. Nos.5003,  4453, 4455-56,5346-48,4955,5082-89,           5577-80, 5581 and 5724/81.      (k)  WP. Nos.3489 and 4293/82.      (l)  WP. No. 4818/81.      (m)  WP. Nos.2916,2932,3242,  3297-3302,3334-43,  3475,           4098-4100, 4136,  4304, 4187,  4777, 5007-17,5027-           34, 5352-55, 5473-79, 5604-5608, 5740-42, 5743-44,           5821, 6012-13 and 5583-92/81.      (n)  WP Nos. 5391 and 5525/81.

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    (o)  WP No. 5443/81.      (p)  WP. Nos. 5444,5663 and 6266/81.      (q)  WP. No. 5464/81.      (r)  WP. Nos. 5451 and 5564-66/81.      (s)  WP. No. 5807/81.      (t)  WP. Nos.5571-75, 5622-29 and 6014/81.      (u)  WP. Nos.5718-19/81 and 6943/81.      (v)  WP. No. 5568-69/81. B. Restriction on Quantum of Food-Grains which can be held:      (a)  WP. Nos.  2932, 3776-3780, 4140-45, 4326-28, 4876-           4902, 4670-78 and 5473-79/81.      (b)  WP. No. 5480/81.      (c)  WP. Nos. 4955-56,5330,5392,3823 and 6278/81.      (d)  WP. Nos. 5529-30/81.      (e)  WP. Nos.5531-32/81. 1146      (f)  WP. Nos. 5841-50/81.      (g)  WP. Nos. 5656-58/81.      (Under Article 32 of the Constitution of India)           Hari Sarup,  M.N. Phadke,  Soli J.  Sorabjee, J.P.      Goyal and  C.M. Lodha, (M/s. B. Datta, R.A. Gupta, Miss      Kamini Jaiswal,  Rajiv Dutta,  Manoj  Swarup  and  Miss      Lalita Kohli, R.S. Sharma, R.K. Jain, Pankaj Jain, P.K.      Jain,  K.K.   Jain,  K.B.  Rohatgi,  B.R.  Kapur,  B.S.      Tawakley, S.R.  Srivastava,  N.N.  Sharma,  A.K.  Goel,      Mitter and  Mitter and  Co., S.K.  Jain,  Rajesh  Jain,      Mukul Mudgal,  M. Qamaruddin,  Mrs. M. Qamaruddin, Anis      Suhrawardhy, A.P.  Mohanty, K.K.  Gupta,  Ravi  Prakash      Gupta, C.K.  Ratnaparkhi, S.C. Birla, M.C. Dhingra, and      S.K. Gambhir for the appearing Petitioners.           G.N. Dikshit,  O.P. Rana,  Mrs. Shobha Dixit, R.N.      Poddar, G.  Gopalakrishan, A.V.  Rangam,  B.D.  Sharma,      D.P. Mohanty and A. Shroff for the Respondents.      The Judgment of the Court was delivered by      SEN, J.  The  issue  in  this  and  the  connected  505 petitions under  Art. 32  of the  Constitution  is  of  far- reaching significance.  It raises  questions of  the highest importance as to the scope and extent of the executive power of the State under Art. 162 of the Constitution, in relation to regulation  and control  of trade  and commerce  in food- stuffs. It  necessarily involves  a claim by the petitioners who are wholesale dealers of foodgrains that the exercise of such governmental  power conflicts  with the rule of law and is in  flagrant violation  of the freedom of trade, commerce and  intercourse   guaranteed  under   Art.   301   of   the Constitution and the fundamental right to carry on trade and business  guaranteed   under  Art.   19  (1)   (g)  of   the Constitution. These  petitions fall  into two  distinct  and separate  categories,   one  by  the  wholesale  dealers  of foodgrains  from  the  Union  Territory  of  Delhi  and  the neighbouring States  of Punjab and Haryana, and the other by the wholesale  dealers of foodgrains from the State of Uttar Pradesh. 1147      The short question that falls for consideration in some of the  writ petitions  by wholesale  dealers of  foodgrains from the  Union Territory  of Delhi  and the State of Punjab and Haryana is whether the action of the State Government of Uttar Pradesh  in setting  up check-posts on its borders and the stoppage  and seizure  of wheat  in transit  through the State of  Uttar Pradesh  during the  course  of  inter-State trade and  commerce to various destinations in the States of Madhya Pradesh  and Maharashtra  at the check-post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on  the strength of its instructions conveyed by its

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teleprinter message  dated March  31, 1981, was in violation of Art. 301 of the Constitution.      In a  majority  of  the  writ  petitions  by  wholesale dealers from  the State  of  Uttar  Pradesh,  two  questions arise, (1)  whether Notification No. P-XXIX-Food-5-5 (42)/80 dated April  21, 1981,  issued by  the State  Government  of Uttar Pradesh,  in exercise  of the powers conferred by s. 3 read with  s. 5  of  the  Essential  Commodities  Act,  1955 (hereinafter referred  to as  the Act), by which cl.4 of the Uttar Pradesh  Foodgrains  (Procurement  and  Regulation  of Trade) Order,  1978, has  been amended,  providing  that  no wholesale dealer, commission agent or retailer shall have in stock wheat  more than  250 quintals,  250 quintals  and  20 quintals  respectively,   at   any   time,   Infringes   the fundamental right  to carry  on trade or business guaranteed under Art.  19 (1)  (g) and  (2)  whether  the  governmental instructions conveyed by its teleprinter message dated March 31, 1981,  placing restrictions  on  movement  of  wheat  by traders on  private account  from the State of Uttar Pradesh to various  other States  and on  inter-district movement of wheat within  the State,  were in  breach of the fundamental right under  Art. 19  (1) (g)  read with  Art.  301  of  the Constitution.      The following are the facts and circumstances so far as necessary  to  show  as  to  how  the  legal  questions  are presented. It  would be  convenient first  to deal  with the writ petitions filed by the whole-sale dealers of foodgrains from the  Union Territory  of Delhi and the States of Punjab and Haryana  seeking a  declaration that the impugned action of the  State Government  of Uttar  Pradesh  in  setting  up check-posts on  the  borders  of  the  State  and  directing seizure of  wheat in  transit  through  the  State,  on  the strength of  the impugned  teleprinter  message,  conflicted with the  guarantees of inter-State trade and commerce dealt with by Art, 301 of the Constitution. 1148      Facts in  all these cases are more or less similar. The petitioners who are wholesale dealers of foodgrains from the Union Territory  of Delhi  and  the  States  of  Punjab  and Haryana allege  that between April 29-30, 1981, they, acting as commission  agents, purchased  wheat from the open market in Delhi  and elsewhere and despatched the same by trucks to various destinations in the State of Maharashtra and to some places in  the State  of Madhya  Pradesh. According to them, the trucks  laden with  wheat were  accompanied by  relative bills, goods receipts, inter-State transit passes etc., duly crossed the check-post at Faridabad and were also allowed to cross the  check-post at  Kotwan on  the border  between the Union Territory  of Delhi and the State of Uttar Pradesh and were on  their way  to their  respective destinations.  They allege  that   the   Senior   Marketing   Inspector,   Agra, intercepted the  trucks in  question at  the  check-post  at Saiyan on  the border between the State of Uttar Pradesh and Madhya Pradesh  between April 30, 1981, and May 2, 1981. The seized trucks  were brought  back to  the purchase  point at Agra and  the wheat was unloaded. Thereupon, the petitioners rushed to Agra and made an application on May 4, 1981, under s.6A read  with ss. 3 and 7 of the Act before the Additional District Magistrate  (Civil Supplies), Agra, for the release of  the   seized  wheat.   In  the   said  application,  the petitioners, inter  alia, claimed  and unequivocally  stated that there  was no  ban on  export of  wheat from  the Union Territory of  Delhi to  other  States,  that  the  wheat  in question was  neither purchased  at Agra,  nor was  it being transported  from  Agra  to  any  other  district  in  Uttar

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Pradesh, that  Agra was  a place  in transit,  and that  the instructions  of  the  State  Government  contained  in  the impugned teleprinter  message dated  March 31,  1981 did not constitute a validly notified order under sub-s. (5) of s. 3 of the Act.      The  Chief   Marketing  Inspector,  Agra,  had  in  the meanwhile seized  42 trucks  laden with  wheat either at the check-post at Saiyan or at Agra and lodged first information reports at  the Saiyan  police station or at the Civil Lines police station  in respect of the consignments alleging that the movement  of wheat  was in contravention of the impugned teleprinter message  and was  therefore seized, and in three of them  it was alleged that the wheat had been purchased at Agra. On  the report  of the  Chief Marketing Inspector, the Additional District  Magistrate (Civil  Supplies), Agra drew up proceedings  under s.  6A of  the Act  and  directed  the police to complete the investigation within 15 days. 1149      On May  23, 1981,  the Additional  District  Magistrate (Civil Supplies),  Agra under  sub-s. (2)(i) of s. 6A of the Act passed  interim orders  for the sale of the seized wheat as it  was subject  to speedy  and  natural  decay,  at  the request of  the Senior  Marketing Inspector,  similar to the one reproduced below:           These proceedings  under  s.6A  of  the  Essential      Commodities Act  started on  the report  of SMI  Saiyan      dated 30.4.1981 (Paper No. 1) whereby it was brought to      the notice  of this  Court  that  truck  nos.....  were      caught carrying  120 quintals.....of wheat respectively      beyond Saiyan border outside the State in contravention      of the  orders issued  by the Government vide telex No.      1061/29-Food-5 dated  31.3.1981 F.I.R.  was  lodged  at      P.S. Saiyan  in respect  of  the  above  contravention.      Notice under  s. 6B  of the  EC Act  was issued  to the      O.Ps..... who  were driving  the trucks  at the time of      search and seizure.           Replies were  filed by  the owners  of  the  wheat      contending that  the said  rules were  not part  of any      Control Order  under Section  3 of  the EC Act nor they      had any  legal sanction  for want of publication in the      Official Gazette. The O.Ps. have pleaded that they were      taking their  goods in transit through Agra and in fact      the movement  of wheat  so made by them was inter-state      movement which was not banned by the Central Government      or State Government.           I heard  the learned  counsels on  behalf  of  the      O.Ps. and  the learned PO as well. In these proceedings      final orders  cannot be  passed at  this stage  as  the      matter is still under investigation.           PO directed  to put  up progress  of investigation      within 15 days from now.           In the  meanwhile I order that the wheat seized by      SMI Saiyan  be got  purchased at  the Official Price so      that the  same does  not get damaged. The sale proceeds      be got  deposited in  Government Treasury  under proper      Head of Account. 1150           This interim  order is  being passed  under sub-s.      (2) (i) of s.6A of the Essential Commodities Act, 1955.      File be  put up  after 15  days along  with  report  of      prosecuting office regarding progress of investigation.      Sd/-      N.N. Varma      Addl. Collector, Agra      23.5.1981

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The seized  wheat has been purchased by the State Government on Government  account at the procurement price and the sale proceeds credited into the Treasury.      The State  Government has  filed a counter-affidavit of the Chief  Marketing Officer, Lucknow, in all these cases as also the  affidavits of  the Senior  Marketing Inspectors at Agra controverting  the allegations made by the petitioners. It is  stated that  the source  of the  power to  effect the seizure was  not the  impugned teleprinter  message, but the power of  search and  seizure conferred  on  an  Enforcement Officer  under   cl.  6   of  the  U.P.  Foodgrains  Dealers (Licensing and  Restriction on  Hoarding)  Order,  1976  and under cl.6  of the Uttar Pradesh Foodgrains (Procurement and Regulation of  Trade) Order,  1978 (hereinafter  called  the 1976 Order  and 1978 Order respectively), both of which were issued by  the State  Government, in  exercise of the powers under s.  3 of  the Act,  read  with  Government  of  India, Ministry of  Agriculture (Department  of Food)  Notification No. G.  S.R. 888  dated June 28, 1961, No. GSR 316 (E) dated June 20,  1972, No.  GSR 452 (E) dated October 25, 1972, No. GSR 168  (E) dated March 13, 1973 and No. GSR 800 dated June 9, 1978  respectively, since  it was  of opinion that it was necessary or  expedient so  to do for securing the equitable distribution and  availability of foodgrains at fair prices. The State  Government contends that the impugned teleprinter message dated  March 31,  1981  was  in  the  nature  of  an executive instruction  issued by  the State Government under its undoubted  powers under Art. 162 of the Constitution for the due  observance of  the provisions  of the  two  Control Orders. It  is said  that no person can carry on business in foodgrains as a dealer or as a commission agent except under and in  accordance with  the terms and conditions of a valid licence issued in that behalf under cl. 4 of the 1976 Order. It is  also said  that no wholesale dealer, commission agent or trader  can have  in stock  more than  250 quintals,  250 quintals and  20 quintals  respectively, at  any time. It is asserted that the State Govern- 1151 ment has  the right to set up check-posts for the purpose of verification so  that  there  is  no  contravention  of  the provisions of  the two  Control Orders,  particularly with a view  to  ensure  that  excess  quantity  of  wheat  is  not transported  in   violation  of  the  1978  Order  to  other districts or other States.      The State  Government in  the counter-affidavit  of the Chief Marketing  Officer, Lucknow,  specifically denies  the allegations made by the petitioners that the 42 trucks laden with wheat  seized at the check-post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra were  in transit during the course of inter-State trade and commerce.      With regard  to the seizure of the wheat, it is averred in para 13 of the counter-affidavit:           "The correct  fact is  that the  authority on  the      bona fide apprehension that the wheat so moved actually      was purchased  from the  State of  Uttar  Pradesh  from      nearby places  and the  same was  being moved  to other      States on  the garb  of outside  wheat. It is submitted      that such  traders who  are exporting  wheat alleged to      have purchased  from places  other than  the  State  of      Uttar Pradesh  and were/are  carrying the same to other      States, have  only to satisfy the authorities concerned      of the  bona fides  of such transactions. However there      is no ban on such movement from one State to another."      As regards  the check-posts,  it is  submitted that the

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State Government  is committed  to provide  price support in wheat to  farmers at  Rs. 130  per quintal.  This commitment also involves  purchase of  wheat directly  from the farmers without interference  from  traders/middlemen,  who  try  to purchase wheat from the farmers at lower prices and sell the same  at   Government  purchase   centres  with  substantial profits. Such transactions are effected in fictitious names. This not  only frustrates  the  procurement  policy  of  the Government but  also prejudicially  and financially  affects the producers’  interests.  In  para  5  it  is  accordingly averred:           "In  order   to  curb  the  above  tendencies  and      preventing the  activity of traders/middlemen the State      Government have  provided a  simple system of verifying      all transactions by traders. 1152           This procedure  involves getting  all transactions      of wheat  verified by  the  Deputy  Regional  Marketing      Officer indicating  inter alia  the name of the persons      to whom the stocks are sold, their licence numbers etc.      and quantum  of  stocks  sold,  price  paid  etc.  This      process will  make it simultaneously very difficult for      traders to  buy at low price from farmers and resell at      high prices at the Government purchase centres."      As regards  the impugned  teleprinter  message  it  was stated that  it was  issued by the State Government in order to sustain  and maintain  and maximise  the  procurement  of wheat by  introducing a system of verification at the check- posts.      The  State   Government  contests   the  right  of  the petitioners  falling   in  the   first  category,  that  is, wholesale dealers of wheat from the Union Territory of Delhi and the  States of  Punjab and Haryana, to relief under Art. 32  of  the  Constitution  who  question  the  legality  and propriety of  the seizures. It is a matter for investigation which is  pending before  the Additional District Magistrate (Civil Supplies),  Agra and,  according to  it, the question cannot be decided without full investigation into facts.      In support  of  the  writ  petitions,  learned  counsel appearing for  the petitioners  have,  in  substance,  urged three grounds.  (1) There  was nothing  to prevent the State Government from  making a law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under  Art. 19(1) (g) read with Art. 19(6) of the Constitution, or  on the  freedom  of  trade,  commerce  and intercourse, throughout  the territory  of India, guaranteed under Art. 301 of the Constitution, but the restriction must be by "law" or by an "order having the force of law" and not by recourse  to the  executive authority  of the State under Art. 162  of the Constitution, i.e., by an executive action. (2) The seizure of the consignments of the wheat, while they were in  transit in  the course  of  inter-State  trade  and commerce from the Union Territory of Delhi and the States of Punjab and  Haryana to various destinations in the States of Maharashtra and  Madhya Pradesh,  was without the "authority of law"  and in  violation of Art. 300A of the Constitution. The seizure  of the  wheat being  wrongful, the  petitioners were entitled to an appropriate writ, direction or order for the return of the seized wheat or the price thereof. (3) The impugned teleprinter  message of  the State Government dated March 31,  1981 on  the basis  of which  the  seizures  were effected, in truth and 1153 substance, had  no legal sanction and cannot be construed to be a  notified order  within the  meaning of sub-s. (1) read

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with sub-s.  (5) of  s. 3  of the Act; it was nothing but an executive direction.  No executive  action which operates to the  prejudice  of  a  citizen  can  be  taken  without  the authority of law. It was asserted that the seizures effected were in  compliance of  the instructions  contained  in  the impugned teleprinter  message and  not for breach of the two Control  Orders   and  therefore   it  was   nothing  but  a "colourable exercise"  of power.  The real  purpose  of  the seizure was  procurement of  wheat  in  furtherance  of  the directives of  the Central  Government,  without  any  legal sanction since  the farmers  were not  willing to sell their wheat at the procurement price.      Learned counsel  for the petitioners also challenge the action  of   the  Additional   District  Magistrate   (Civil Supplies) Agra  in passing an interim order in terms of sub- s. (2)  (i) of  s. 6A  of the Act for the sale of the seized wheat on  Government account and for the sale proceeds to be credited  into  the  treasury  in  an  appropriate  Head  of Account; it  is urged that under sub-s. (2) (ii) of s. 6A of the Act  there being  no control  price for wheat, the wheat should have been sold by public auction.      In reply,  learned counsel  for the  State has repelled all these  contentions. It  is submitted  that the source of power to effect the seizure was not the impugned teleprinter message, but the two Control Orders issued under s. 3 of the Act. He  asserted that  the wheat  in question was not being transported during  the  course  of  inter-State  trade  and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various other States. The wheat had in fact been  purchased at  Agra and  was being lifted from the State of  Uttar Pradesh  and had, therefore, to be seized at the check-post  at Saiyan  and at  Agra. He  points out that under cl.  3 of  the 1976  Order, no  person  can  carry  on business as  a dealer  or commission  agent, except  and  in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority. According to him, the seized wheat had been purchased at Agra in the course of trade,  and   they  were   not  isolated  transactions  and, therefore, the  Delhi traders committed contravention of cl. 3 of  the 1976  Order. It  is also pointed out that cl. 4 of the 1978 Order, as amended, provides that no person who is a wholesale dealer, commission agent or retailer shall have in stock  wheat  in  quantities  exceeding  250  quintals,  250 quintals and  20 quintals  at a  time. It is further pointed out, cl. 14 of the 1976 Order, and cl. 6 1154 of the  1978 Order confer the power of search and seizure on an enforcement  officer or  the licensing  authority or  any other officer  authorised by  the Government in that behalf, and the  expression "enforcement  officer" defined  in cl. 2 (e) of the former Order and cl. 2(d) of the latter, includes the Chief  Marketing Inspector.  According  to  the  learned counsel the Government instructions conveyed in the impugned teleprinter message  is merely in the nature of an executive instruction for  the enforcement  of the two Control Orders. In support  of  the  contentions,  he  also  relies  on  the executive  power   of  the  State  under  Art.  162  of  the Constitution. In  the premises,  the contention on behalf of the State  is that the question whether the seized wheat was liable to  be confiscated or not under s. 6A of the Act, was a matter pending adjudication before the Additional District Magistrate (Civil Supplies) Agra. That depends on whether or not there was contravention by the petitioners of any of the Order issued under s. 3 of the Act and, therefore, cannot be determined without full investigation into the facts.

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    The Inter-Zonal  Wheat (Movement  Control) Order, 1976, issued by  the Central Government, in exercise of the powers conferred by  s. 3 of the Act has been rescinded with effect from April  13, 1977.  The result  of this is that the whole country constitutes a single zone for free movement of wheat except in  such States  where an  order is issued under s. 3 read with  s. 5 of the Act, placing a ban on export of wheat such as  in the  State of  Rajasthan. Admittedly,  the State Government of  Uttar Pradesh  has not issued any order under s. 3  read with  s. 5 of the Act, placing a ban on export of wheat from  the State  or any  restriction on inter-district movement of  wheat within  the State.  The State  Government does  not  contest  this  position  and  indeed,  the  Chief Marketing Officer in his counter-affidavit states:           "The State  of Uttar  Pradesh has  not banned  the      movement  of  wheat  outside  the  State  or  from  one      district to  another district  within the  State. It is      submitted that  such traders who are transporting wheat      alleged to  be purchased  from a  place other  than the      State of  Uttar Pradesh  and were/are carrying the same      to other  States other  than Uttar Pradesh have only to      satisfy the  authorities concerned of the bona fides of      the transactions.  However, there  is no  ban  on  such      movement from one State to another." 1155      The impugned  teleprinter message  dated March 31, 1981 runs as follows:      "For:                Regional Food Control,                Agra/Bareilly/Dehradun/Faizabad/Gorakhpur                Jhansi/Haldwani/Kanpur/Meerut/Varanasi                Lucknow (by Hand)                From:                     Secretary (Food)                     Lucknow.        No. TP-1061/XXIX-Food-5               Dated: Lucknow:                                              March 31, 1981.           Refer Tel  TP-712/XXIX-Food-5-5(1)/81 of 9th March      1981 regarding  renewal of and issue of new licences to      dealers(,) Government  committed to provide benefits of      support price to producers hence to ensure that maximum      quantity of wheat is purchased by agencies (.) Para (.)      After careful  consideration  Government  have  decided      that with  effect from  first April 1981 till thirtieth      June 1981  no repeat no fresh licences are to be issued      to any person who wish to deal in wheat, wheat products      or both  as wholesaler  commission agent  retailer  (.)      Para (.) Government have also decided that during April      1981 to  June 1981  movement of  wheat  by  traders  on      private account  to outside district shall be regulated      only on  the endorsement  of Deputy  Regional Marketing      Officer  concerned   and  hitherto   this  power  being      exercised  by  Senior  Marketing  Inspector  shall  not      repeat not  be used  by them  (.) Para  (.) At the same      time easy  availability of  wheat in open markets is to      be ensured(.)  Keeping all the relevant factors in view      endorsement by Dy. R.M.O. should be made judiciously on      genuine and  bonafide grounds(.)  Para(.) Dy.  RMO will      send daily  report to  RFC of  the cases  in which such      permission is  granted or endorsement made(..) RFC will      compile  and   send  weekly   report  to  Government(.)      Permission to  be  given  very  sparingly  and  general      impression made  should be  that they  will not gain by      doing any  trading in  wheat(.) Visit  Mandis regularly      and  check  quantities  lying  in  traders  premises(.)

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    Presence of large stocks with trade means staff 1156      is  not   during  their   job  properly(.)  Inform  all      concerned immediately for strict compliance(.)      Dated: Lucknow; March 31, 1981               Sd/-                                          M. Subrahmanyam                                             Secretary                                 Food & Civil Supplies Sec. 5                                 U.P. Secretariat, Lucknow."      There can  be no  doubt that  the aforesaid teleprinter message was  in the  nature of executive instructions of the State Government  to the  Regional Food  Controllers of  the various regions to secure compliance with the orders. It may be mentioned  that the  State Government  was  committed  to provide price  support in  wheat to  producers and  hence to maximise procurement  of wheat,  issued instructions that no fresh licences  till June 30, 1981 were to be granted to any person who wished to deal in wheat, wheat products, or both, as well  as  a  wholesale  dealer,  commission  agent  or  a retailer. It  further conveyed  the policy  decision of  the Government that  during April  1981  movement  of  wheat  by traders on  private account  to outside  districts shall  be regulated only  on the  endorsement of  the Deputy Marketing Officer concerned and not by the Senior Marketing Inspectors as  hitherto   before.  The  Government  also  directed  the Regional Food  Controllers to  ensure easy  availability  of wheat in  open market. As regards the making of endorsement, they were  advised that  the powers should be exercised with due circumspection. They were also asked to visit the mandis and keep  a constant  vigil on  the stocks  lying  with  the traders. There  appears to  be nothing  unusual on the State Government issuing such executive instructions.      Even assuming  that the impugned teleprinter message is not  relatable   to  the   two  Control  Orders,  the  State Government undoubtedly  could, in  exercise of the executive power of  the State,  introduce a  system of verification on movement of wheat from the State of Uttar Pradesh to various other States  at the  check-posts on  the border  and  place restrictions on  inter-district movement of wheat by traders on private  account within the State. The executive power of a modern  State is not capable of any precise definition. In Ram Jawaya  Kapur v. State of Punjab, Mukherjea, C.J., dealt with the  scope of Arts. 73 and 162 of the Constitution. The learned Chief  Justice observed  that  neither  of  the  two Articles contains any 1157 definition as  to what the executive function is or gives an exhaustive  enumeration   of  the   activities  which  would legitimately  come   within  its  scope.  It  was  observed: "Ordinarily the  executive power  con-notes the  residue  of governmental functions  that remain  after  legislative  and judicial functions  are taken away". It is neither necessary nor possible  to give an exhaustive enumeration of the kinds and categories  of executive  functions which  may  comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged  with the duty and the responsibility of carrying on the  general administration  of the State. So long as the State Government  does not  go against the provisions of the Constitution or  any law,  the width  and amplitude  of  its executive power  cannot be  circumscribed. If  there  is  no enactment  covering   a  particular  aspect,  certainly  the Government  can  carry  on  the  administration  by  issuing administrative  directions   or  instructions,   until   the legislature makes  a law  in  that  behalf.  Otherwise,  the

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administration would come to a standstill.      In Ram  Jawaya Kapoor’s  case (supra)  it was contended that the  executive power of the State did not extend to the carrying on  of trade of printing, publishing and selling of text-books for  schools unless  such trade was authorised by law. In  repelling the  contention, Mukherjea, C.J. speaking for the Court, observed :           Our Constitution, though federal in its structure,      is modelled  on the  British Parliamentary system where      the  executive   is  deemed   to   have   the   primary      responsibility  for  the  formulation  of  governmental      policy  and   its  transmission  into  law  though  the      condition   precedent   to   the   exercise   of   this      responsibility is  its retaining  the confidence of the      legislative branch of the State. The executive function      comprises both  of the  determination of  the policy as      well as  carrying it  into  execution.  This  evidently      includes the initiation of legislation, the maintenance      of order, the promotion of social and economic welfare,      the direction  of foreign  policy, in fact the carrying      on or  supervision of the general administration of the      State. The learned Chief Justice then went on to observe :           The Indian  Constitution is a written Constitution      and  even   the   legislature   cannot   override   the      fundamental rights 1158      guaranteed by it to the citizens. Consequently, even if      the acts  of the  executive are deemed to be sanctioned      by the legislature, yet they can be declared to be void      and  in-operative   if  they   infringe  any   of   the      fundamental rights  of the petitioners guaranteed under      Part III  of the  Constitution. On the other hand, even      if the  acts of  the executive are illegal in the sense      that they  are not warranted by law, but no fundamental      rights of  the petitioners have been infringed thereby,      the latter  would obviously  have no  right to complain      under article  32 of  the Constitution  though they may      have remedies  elsewhere if  other heads  of rights are      infringed. In Naraindas  Indurkhya v.  State of  Madhya Pradesh  &  Ors Bhagwati,  J.,   speaking  for  the  Court,  reiterated  the principles laid  down  by  Mukherjea,  C.J.  in  Ram  Jawaya Kapur’s case  (supra) and  held that  the  State  Government could act  in exercise  of the  executive power of the State under Art. 162 of the Constitution in relation to any matter with respect  to which  the State  Legislature has  power to make laws  even if  there was no legislation to support such executive action.  There is  no denying  the fact  that  the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads:           33. Trade  and commerce  in, and  the  production,      supply and distribution of,-           (b)  foodstuffs,  including  edible  oilseeds  and                oils.      The Essential  Commodities Act,  1955  was  enacted  by Parliament in  exercise  of  concurrent  jurisdiction  under Entry  33   List  III   of  the   Seventh  Schedule  to  the Constitution  as   amended  by   the   Constitution   (Third Amendment)  Act,  1954.  The  exercise  of  such  concurrent jurisdiction would  not deprive the State legislature of its jurisdiction thereunder.  The State  legislature, therefore, could still  make a  law on the subject regulating trade and commerce in,  and the production, supply and distribution of ’foodstuffs’ and  the only  question that would arise is one

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of repugnancy  dealt with  in Art.  254 of the Constitution. The executive power of the State being co-extensive with its legislative power  under Entry  33, List  III, it relates to all matters covered by the subject ’foodstuffs’, 1159 trade and  commerce  in,  and  the  production,  supply  and distribution thereof.  This is,  of course,  subject to  the limitation contained  in Proviso  to Art.  162 which directs that in  any matter with respect to which the legislature of a  State  and  Parliament  have  power  to  make  laws,  the executive power  of the  State  shall  be  subject  to,  and limited by,  the executive  power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.      This leads  us to  another aspect  of  the  problem  of considerable difficulty  and importance. The subject ’search and seizure’, is a field which has not come before the court with considerable frequency, but this is a hard fact of life which the  citizen does  encounter very often. The executive power of  ’search and seizure’ is a necessary concomitant of a welfare  State. It  tends to promote the well being of the nation. Many  questions arising  in the  field of search and seizure are  factual in nature. They involve varying degrees of difference  among the  infinitely  diverse  facts.  Every factual variation  presents not only a new problem, but also a new  constitutional question.  It is  a limitless  area in which different  issues may  arise with  vast variations  of facts which  are involved  in each individual case. This is, indeed, a peculiar field in which the decisions of courts do not help  in clarifying  the law. The decisions in the field are of  little precedental value because, the more the cases that  are  decided,  the  more  new  issues  arise,  through possible factual variations.      The check-posts  and barriers  on the  borders  of  the State of  Uttar Pradesh  are set  up under s. 28 of the U.P. Sales Tax  Act, 1948  and are  designed and meant to prevent evasion of  sales tax  and other  dues.  The  constitutional validity of s. 28 and its cognate provisions, ss. 28A to 28C has, rightly,  if we  may say so, not been challenged before us. From  the point  of view either of Entry 54, List II, or of Art. 301 of the Constitution, there is no question of any lack of  competence in  the State  legislature to set up the checkposts  and  barriers  on  the  State’s  borders.  These provisions, read  with the  requirements of  r. 83(4) of the U.P. Sales Tax Rules, 1948 require that the owner, driver or any other  person in-charge  of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified  under sub-s.  (1) of s. 28A, carry with him, a declaration in  Form XXXI,  a certificate  in Form  XXXII, a transit pass  in Form XXXIV in duplicate, cash memo, bill of sale or  challan and a trip-sheet in triplicate. The factual existence of these check- 1160 posts or  barriers on the State’s borders is not denied, nor their legality  challenged. It  is not  suggested  that  the setting up  of these  check-posts is  a restriction  on  the freedom of  trade, commerce and intercourse guaranteed under Art. 301  of the  Constitution, or  is such  as directly and immediately restricts  or impedes  the free flow or movement of goods.  It is  also not  suggested that  these regulatory measures in  setting  up  the  check-posts  on  the  State’s borders are  such as  impede freedom  of trade, commerce and intercourse. Just as inter-State trade and commerce must pay its way  and be subject to taxation, persons engaged in such inter-State trade  or commerce  are equally  subject to  all

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regulatory measures.  There is no reason why the check-posts or barriers  set up  by the  State Government under s. 28 of the U.P.  Sales Tax  Act, 1948,  cannot  be  utilised  as  a machinery  for   due  observance   of  the  laws,  e.g.  for verification and  control of movement of wheat by traders on private account  from the  State of Uttar Pradesh to various other States.      The instructions  conveyed by  the State  Government by the impugned  teleprinter message dated March 31, 1981, were a direct  sequel to the Centre’s directives contained in its earlier teleprinter  message. It  was intended  and meant to achieve three  main objectives, namely, (1) to provide price support in  wheat to  purchasers with  a  view  to  sustain, maintain and  maximise the  procurement  of  wheat;  (2)  to prevent hoarding  and blackmarketing; and (3) to provide for equitable distribution  and availability  of wheat  at  fair prices. These  directions were  obviously meant  to subserve the object of the legislation and were in public interest.      These cases were argued with much learning and resource particularly with  reference to  the rule  of  law  and  the consequent limitations  on the  executive power of the State under Art.  162 to  ’trench’ upon  the fundamental  right to carry on  trade or business guaranteed under Art. 19 (1) (g) and  the   freedom  of   trade,  commerce   and  intercourse throughout the  territory of India guaranteed under Art. 301 of the  Constitution. It necessarily involves a claim by the State that the measures taken by the State Government by the impugned teleprinter  message were  nothing  but  regulatory measures to  ensure that the excess stock of wheat held by a wholesale dealer,  commission agent  or a  retailer  is  not transported to  a  place  outside  the  State  or  from  one district to  another within the State and therefore were not a ’restriction’  on the  fundamental right to carry on trade or business  guaranteed under  Art.  19  (1)(g)  or  on  the freedom of trade, commerce and intercourse under Art. 301. 1161      The quintessence  of our  Constitution is  the rule  of law. The   State  or its executive officers cannot interfere with the  rights of  others unless  they can  point to  some specific rule  of law  which authorises their acts. In State of Madhya Pradesh v. Thakur Bharat Singh, the Court repelled the contention  that by virtue of Art. 162, the State or its officers  may,  in  the  exercise  of  executive  authority, without any  legislation in  support thereof,  infringe  the rights of  citizens merely  because the  legislature of  the State has  power to  legislate in  regard to  the subject on which the executive order is issued. It was observed:           "Every act  done  by  the  Government  or  by  its      officers must,  if it is to operate to the prejudice of      any  person,   be   supported   by   some   legislative      authority." The same  principle was  reiterated by  the Court in Satwant Singh  Sawhney   v.  Dr.   Ramarathnam,  Assistant  Passport Officer, Government  of India,  New Delhi  & Ors,  and  Smt. Indira Nehru Gandhi v. Shri Raj Narain.      There can  be no  doubt that  the Essential Commodities Act, 1955,  is a ’law’ within the meaning of Art. 302 of the Constitution imposing  reasonable restrictions  on the right to carry  on  trade  and  commerce  as  guaranteed  by  Art. 19(1)(g) and Art. 301 of the Constitution. The object of the Act is  to provide,  in the interests of the general public, for the control, production, supply and distribution of, and trade and  commerce in,  certain essential  commodities.  To appreciate the  points involved,  it is necessary to set out the material statutory provisions. Sub-s. (1) of s. 3 of the

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Act provides as follows:           "3(1). If  the Central  Government is  of  opinion      that  it  is  necessary  or  expedient  so  to  do  for      maintaining or  increasing supplies  of  any  essential      commodity or  for securing their equitable distribution      and availability  at fair  prices, or  for securing any      essential commodity  for the  defence of  India or  the      efficient conduct  of military  operations, it  may, by      order,  provide   for  regulating  or  prohibiting  the      production, supply  and distribution  thereof and trade      and commerce therein. 1162 Sub-s. (2)  thereof provides  that without  prejudice to the generality of  the powers  conferred by  sub-s. (1) an order made  thereunder   may  provide   for  any  of  the  matters enumerated therein.  Sub-s. (5) provides that any order made under this  section shall  in the  case of  an  order  of  a general nature  or affecting a class of persons, be notified in the  Official Gazette.  By virtue  of the  delegation  of powers under  s. 5  of  the  Act  the  State  Government  in relation to  such matters  and subject to such conditions as may be  specified, may  exercise the  powers of  the Central Government under s. 3 Clause (j) of sub-s. (2) of 3 provides that the  Central Government or the State Government, as the case may be, may by order provide:           "For any  incidental  and  supplementary  matters,      including,  in   particular,  the   entry,  search   or      examination of premises, aircraft, vessels, vehicles or      other conveyance  and animals,  and the  seizure  by  a      person  authorised   to  make  such  entry,  search  or      examination......’ Sub-ss. (1)  and (2)  of  s.  6A  of  the  Act,  insofar  as material, provide as follows:           "6A(1). Where any essential commodity is seized in      pursuance of  an order made under section 3 in relation      thereto,   a   report   of   seizure   shall,   without      unreasonable delay,  be made  to the  Collector of  the      district or the Presidency-town in which such essential      commodity is seized and whether or not a prosecution is      instituted for  the contravention  of such  order,  the      Collector may,  if he  thinks it  expedient so  to  do,      direct the essential commodity so seized to be produced      for inspection  before him, and if he is satisfied that      there has  been a contravention of the order, may order      confiscation of-      (a)  the essential commodity so seized;           6A(2). Where  the Collector, on receiving a report      of seizure  or on inspection of any essential commodity      under sub-s.  (1), is of the opinion that the essential      commodity is  subject to speedy and natural decay or it      is otherwise expedient in the public interest so to do,      be may-           (i)  order the  same to  be sold at the controlled                price,  if  any,  fixed  for  such  essential                commodity under  this Act  or under any other                law for the time being in force; or 1163           (ii) where no  such price is fixed, order the same                to be sold by public auction:           Provided that in case of foodgrains, the Collector      may, for its equitable distribution and availability at      fair prices,  order the  same to  be sold  through fair      price  shops   at  the   price  fixed  by  the  Central      Government or  by the State Government, as the case may      be, for  the retail  sale of  such  foodgrains  to  the

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    public."      Learned  counsel  for  the  State  Government,  in  all fairness, does  not assert  that  the  impugned  teleprinter message having regard to the requirements of sub-s. (5), has the effect of a notified Order under s. 3 of the Act placing a ban  on export  of wheat  from the  State  or  imposing  a restriction on  inter-district  movement  of  wheat.  It  is submitted that  it only  conveyed the  instructions  of  the State Government  requiring the Regional Food Controllers to be more  vigilant to  secure due observance of the laws. The question still  remain whether  the instructions conveyed by the teleprinter message had the force of law.      It  is   therefore  to   be  considered   whether   the instructions  conveyed   by  the  State  Government  by  the impugned teleprinter  message  were  relatable  to  the  two Control Orders and therefore could be considered to be ’law’ or an  order having  the force  of  law  placing  reasonable restriction on the freedom to carry on any occupation, trade or business  guaranteed under  Art. 19(1)(g)  read with Art. 19(6) of  the Constitution  or  on  the  freedom  of  trade, commerce and  intercourse throughout  the territory of India guaranteed under  Art. 301 o the Constitution. It is further to be considered whether the seizure of wheat in transit was with authority of law.      It is  submitted that although the impugned teleprinter message dated  March 31, 1981 was in the nature of executive instructions of  the State  Government to  the Regional Food Controllers of the various regions to secure compliance with the two  Control Orders,  it had  the force  of law.  It  is pointed out that under licence conditions Nos. 11, 12 and 13 of the  licence issued  in Form  B under  cl. 4  of the 1976 Order, a  dealer is  required to  comply with  any direction that may  be given  by the  State Government  in  regard  to purchase, sale or storage for sale of foodgrains, to furnish such information relating to his business as may be demanded of him  and to carry out such instructions as may, from time to time, be given, 1164 by the  State Government  or the licensing authority, and to give  all   facilities  at  all  reasonable  times,  to  the enforcement  officer  or  the  licencing  authority  or  any officer authorised  by him  or the  State Government for the inspection of the stocks etc. It is further pointed out that the State  Government of  Uttar Pradesh  has by Notification No. P-XXIX-Food-5-5(42)/80 dated April 21, 1981, in exercise of the  powers conferred  by s. 3 read with s. 5 of the Act, with the prior concurrence of the Central Government, issued the Uttar  Pradesh Foodgrains (Procurement and Regulation of Trade) (First  Amendment) Order,  1981. By  cl. 2 thereof, a new cl.  4 has  been substituted  in the 1978 Order by which the stock  limit of dealers in foodgrains has been re-fixed, as it was of the opinion that it was necessary and expedient so  to   do  for   securing   equitable   distribution   and availability of wheat at fair prices. The new cl. 4 provides that no  wholesale dealer,  commission  agent  or  retailer, shall have  in stock,  wheat more  than  250  quintals,  250 quintals and  20 quintals respectively, at any time. The re- fixation of  the stock  limit of  a wholesale dealers at 250 quintals, at  any time,  is to ensure that wholesale dealers in the State of Uttar Pradesh do not try to corner stocks of wheat for  purposes of  speculation. The  submission is that the State  Government without  placing  any  restriction  on movement of wheat from the State of Uttar Pradesh to various other States, has virtually frozen the excess stock of wheat lying with  wholesale dealers  of foodgrains  in the  State.

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There is,  in  our  opinion,  considerable  force  in  these submissions.      The real  question at  issue  is  whether  or  not  the seizure  of  wheat  was  with  the  authority  of  law.  The fundamental right  to carry  on trade or business guaranteed under Art.  19(1)(g) or  the freedom  of inter-State  trade, commerce and intercourse under Art. 301 of the Constitution, has its  own limitations. The liberty of an individual to do as he  pleases is  not absolute. It must yield to the common good. Absolute  or unrestricted individual rights do not and cannot exist  in any modern State. There is no protection of the rights  themselves unless  there is a measure of control and regulation  of the  rights of  each  individual  in  the interests of  all. Whenever such a conflict comes before the Court, it  is its  duty to  harmonise the  exercise  of  the competing rights.  The Court  must balance  the individual’s rights of  freedom of  trade under  Art.  19(1)(g)  and  the freedom of  inter State trade and commerce under Art. 301 as against the national interest. Such a limitation is inherent in the exercise of those rights. 1165      Under Art.  19(1)(g) of the Constitution, a citizen has the right  to carry on any occupation, trade or business and the  only  restriction  on  this  unfettered  right  is  the authority of  the State  to make  a law  imposing reasonable restrictions under  cl. (6).  The principles  underlying  in cls. (5)  and (6)  of Art.  19  are  now  well  settled  and ingrained in  our legal  system in  a number of decisions of this Court,  and it is not necessary to burden this judgment with  citations.  The  expression  ’reasonable  restriction’ signifies  that  the  limitation  imposed  on  a  person  in enjoyment of  the right  should not  be arbitrary  or of  an excessive nature,  beyond what  is required in the interests of  the   public.  The   test  of  reasonableness,  wherever prescribed, should  be applied  to each  individual  statute impugned, and  no abstract  standard, or  general pattern of reasonableness can  be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right  cannot   be  said   to   contain   the   quality   of reasonableness  and  unless  it  strikes  a  proper  balance between the  freedom guaranteed  in Art.  19(1)(g)  and  the social control  permitted by  cl. (6) of Art. 19, it must be held to be wanting in that quality.      The nature  of the right alleged to have been infringed is that  wholesale dealers  in foodgrains  from the State of Uttar Pradesh  or elsewhere  are prevented from moving their stock of  wheat to various other States or from one district to another  without the  transaction being verified and duly endorsed by  the Deputy  Marketing  Officer  or  the  Senior Marketing Officer  concerned. The  other restriction  on the enjoyment of  their right placed by the impugned teleprinter message is that there should be physical verification at the checkposts on the State’s borders. These steps were designed to prevent  a price  rise in  wheat in  the State  of  Uttar Pradesh and  to prevent  outflow of  wheat from the State to various other  States  and  from  one  district  to  another district within  the State.  The whole  object was to ensure that the  wholesale dealers  in foodgrains  did  not  corner stocks of wheat for the purpose of speculation. It cannot be said that  they do not contain the quality of reasonableness or were  not in  the interests  of the  general  public.  In judging the validity of these restrictions, the Court has to strike a proper balance between the freedom guaranteed under Art. 19(1)(g)  and the  social  control  permitted  by  Art. 19(6).

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    If, therefore,  the seizure  can be  justified  on  the basis of  any valid  law, it  cannot be  held to be illegal. This is equally true of Art. 301. Art. 301 imposes a general limitation on all legislative 1166 power  in   order  to   secure  that   trade,  commerce  and intercourse throughout the territory of India shall be free. Having placed a general limitation on the legislative powers of Parliament  and the  State Legislatures, Art. 302 relaxes that restriction  in favour  of Parliament by providing that authority may,  by law,  impose  such  restrictions  on  the freedom of trade, commerce and intercourse between one State and another and within any part of the territory of India in the public  interest. Likewise,  Art. 304(b)  provides  that notwithstanding  anything   in  Art.  301  or  Art.  303,  a legislature of  a State  may, by law, impose such reasonable restrictions  on   the  freedom   of  trade,   commerce   or intercourse with  or within that State as may be required in the public  interest, provided that no Bill or amendment for the purpose  of cl.  (b) shall be introduced or moved in the legislature of  a State without the previous sanction of the President. Although Art. 301 guarantees that trade, commerce and intercourse  throughout the  country shall  be free, the right to  carry on  inter-State trade  and commerce  may  be subject to  reasonable restrictions  in the interests of the general public.      The word  ’free’ in Art. 301 does not mean freedom from laws or  from regulations.  Art. 301  guarantees freedom  of trade, commerce  and intercourse throughout the country from any State  barriers. It  declares that  subject to the other provisions of  Part XIII,  trade, commerce  and  intercourse throughout the  territory of  India shall be free. The whole object was  to bring about the economic unity of the country under a  federal structure, so that the people may feel that they are  members of one nation. One of the means to achieve this object  is to guarantee to every citizen the freedom of movement and  residence  throughout  the  country.  That  is achieved by  Art. 19(1)(d) and (e). No less important is the freedom of  movement or passage of commodities from one part of the  country to another. The progress of the country as a whole also requires free flow of commerce and intercourse as between different  parts, without  any barrier. This freedom of trade,  commerce and  intercourse throughout  the country without any  ’State barriers’ is not confined to inter-State trade but  also includes intra-State trade as well. In other words,  subject   to  the   provisions  of   Part  XIII,  no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between one State and another, but between any two points within the territory of India whether any State border has to be crossed or not.      It is  now well settled that the regulatory measures or measures imposing  compensatory taxes do not come within the purview of the 1167 restrictions  contemplated   by  Art.  301.  The  regulatory measures should,  however, be  such as  do  not  impede  the freedom of  trade, commerce  and intercourse.  It cannot  be said that  the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the  making of  an endorsement  by the  Deputy Marketing Officer or  the Senior  Marketing Officer  or  the  physical verification  of  stocks  of  wheat  during  the  course  of transit, are  a  ’restriction’  on  the  freedom  of  trade, commerce and intercourse within the country, i.e, across the State or  from one  part of  the State to another. These are

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nothing but  regulatory measures  to ensure  that the excess stock of  wheat held by a wholesale dealer, commission agent or a  retailer is  not transported  to a  place outside  the State or  from  one  district  to  another.  Even  if  these requirements are  construed to  be a  ’restriction’  on  the inter-State or  intra-State trade, the limitation so imposed on the  enjoyment of  the right  cannot be  considered to be arbitrary or of an excessive nature. Nor can it be said that such restrictions do not satisfy the test of reasonableness.      The question  whether or  not the  seizure of the wheat was for  contravention of any order issued under s. 3 of the Act is  pending investigation before the Additional District Magistrate (Civil  Supplies), Agra. For the establishment of their rights  the petitioners  have still  to establish that the wheat  in question  was bought by them in open market in Delhi and elsewhere and was being merely transported through the State  of Uttar  Pradesh in  the course  of  inter-State trade and  commerce. If  that  be  so,  then  there  was  no contravention of  any order issued by the Central Government under s.  3 or  by the State Government under s. 3 read with s. 5  of the  Act. If,  on the  contrary, the wheat had been purchased by  them at Agra or nearby places within the State of Uttar  Pradesh, the  question would  arise  whether  such purchase, storage  or sale  of wheat was in contravention of any of  the two  Control Orders.  In  case  there  was  such contravention of  any of  the provisions  of the two Control Orders, then  there was  undoubtedly the power of search and seizure. The case of the State Government before us was that the source  of power  to effect  the  seizure  was  the  two Control Orders. It was asserted that the wheat was not being transported during  the  course  of  inter-State  trade  and commerce from  the Union Territory of Delhi to various other States, but  had, in  fact, been  purchased at  Agra and was being lifted  from  the  State  of  Uttar  Pradesh  and  had therefore to  be seized  at the  check-post at Saiyan and at Agra. Under  cl. 3  of 1976  Order, no  person can  carry on business as a 1168 dealer or commission agent except and in accordance with the terms and  conditions of  a licence issued in that behalf by the licensing  authority. The term ’dealer’ is defined in s. 2(c) of  the Order  to mean a person engaged in the business of  purchase,  sale  or  storage  for  sale  of  foodgrains. According to  the State, the seized wheat had been purchased at Agra  in the  course of  trade and they were not isolated transactions and,  therefore, the  Delhi  traders  committed contravention of  cl. 3  of the  1976 Order.  Cl. 14 thereof confers the  power of  search and  seizure on an enforcement officer or  the licensing  authority or  any  other  officer authorised by  the State  Government  in  that  behalf.  The expression ’enforcement  officer’ is  defined in cl. 2(e) of that Order  and it  includes the Chief Marketing Officer and in that  capacity the Chief Marketing Officer, having reason to believe that contravention of the provisions of the Order had been,  was being,  or was about to be committed, had the power to  seize the  trucks at  the check-post at Saiyan and effect the  seizure of the trucks laden with wheat and bring them to the purchase point at Agra.      Furthermore, under cl. 4 of the 1978 Order, as amended, no person  who is  a wholesale dealer, commission agent or a retailer, shall  have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals respectively at a time. Cl.  6 confers  the power  of search and seizure on an enforcement officer  which  term  as  defined  in  cl.  2(d) likewise includes  the Chief  Marketing Inspector, Under cl.

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6(d), the  Chief  Marketing  Inspector,  as  an  enforcement officer, had  the power  to seize  any article in respect of which he  had reason  to believe that a contravention of the Order had been, was being, or was about to be committed. The fixation of  the maximum  limits of  stocks of  wheat at 250 quintals 250  quintals and 20 quintals respectively, which a wholesale dealer,  commission agent  or a retailer may hold, at any  one time, has necessarily the effect of freezing the excess stock  of wheat  lying with  such dealer.  This  also results in  preventing the  movement of such excess stock of wheat from  the State  of Uttar  Pradesh  to  various  other States or  from one district to another. The excess stock of wheat lying  with such  dealer, that is, a wholesale dealer, commission agent  or a  retailer, in  truth  and  substance, became their ’unlicensed stock’. If really the Delhi traders had purchased  the excess  stock  of  wheat  from  wholesale dealers, commission  agents or  retailers in  the  State  of Uttar Pradesh, as is alleged, it is possible to contend that there was  a contravention of the provisions of cl. 4 of the 1978 Order.  The question  whether the  seizure was  for any contravention of any Order issued under 1169 s. 3  of the  Act has  to be  determined by  the  Additional District Magistrate  (Civil Supplies), Agra, on the evidence adduced by the parties before him.      The facts  being controverted,  the petitioners have no right to  relief under  Art. 32 of the Constitution. Each of the petitioners  has filed a sheaf of documents showing that the wheat had been purchased in the open market in Delhi and elsewhere, that  the trucks  laden  with  their  wheat  were accompanied by  the relevant  bills, goods  receipts, inter- State transit  passes etc., that the trucks in question were allowed to  cross the  check-posts at  Kotwan on  the border between the  Union Territory of Delhi and the State of Uttar Pradesh. but were seized either at the check-posts at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or  at Agra,  while they were in transit through the State of  Uttar Pradesh.  It was  also asserted that all the documents were seized and taken away by the Senior Marketing Inspector, and  that he  had given  an acknowledgment of the same. Learned  counsel appearing  for the  State  vehemently contends  that   these  documents  were  not  shown  to  the authorities concerned and it is for the petitioners to prove these documents  before the  Additional District  Magistrate (Civil Supplies),  Agra, in support of their claim We cannot act on  the documents  because the transactions are still to be proved.  It is asserted on behalf of the State Government that such  documents could always be brought into existence, particularly when  none of  the transactions  were  effected through a  Bank. This  Court cannot obviously pronounce upon the genuineness of the transactions or record any finding on the basis of the documents when the facts are in dispute.      There still remains the question whether the seizure of wheat  amounts   to  deprivation  of  property  without  the authority of law. Art. 300A provides that no person shall be deprived of his property save by authority of law. The State Government cannot  while taking  recourse to  the  executive power of  the State  under Art. 162, deprive a person of his property. Such  power can  be exercised only by authority of law and  not by a mere executive fiat or order. Art. 162, as is clear  from  the  opening  words,  is  subject  to  other provisions  of   the   Constitution.   It   is,   therefore, necessarily subject  to Art.  300A. The  word ’law’  in  the context of  Art. 300A must mean an Act of Parliament or of a State Legislature,  a rule, or a statutory order; having the

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force of  law, that  is positive  or  State  made  law.  The decisions in Wazir Chand v. The State of Himachal 1170 Pradesh and Bishan Das and others v. The State of Punjab and others are  an authority for the proposition that an illegal seizure amounts  to  deprivation  of  property  without  the authority of  law. In Wazir Chand’s case (supra), the police in India  seized goods  in possession  of the  petitioner in India at  the instance  of the  police of the State of Jammu and Kashmir.  The  seizure  was  admittedly  not  under  the authority of law, inasmuch as it was not under the orders of any Magistrate;  nor was  it under ss. 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed  by the  petitioner was made to the police in India,  and the Indian police were not authorised to make any investigation.  In those  circumstances, the  Court held that the  seizure was  not with  the authority  of  law  and amounted to  an infringement  of the fundamental right under Art. 31(1).  This view  was reaffirmed  in Bishan Das’s case (supra).      The effect  of the Constitution (Fourth) Amendment Act, 1955, is  that there can be no ’deprivation’ unless there is extinction of  the right  to property.  It is urged that the seizure of  wheat was  not with  a view to extinction of the rights of  the petitioners,  but the  property in the seized wheat was  theirs. No doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the  Additional  District  Magistrate  (Civil  Supplies), Agra, that  there was  no contravention  by them of an order issued under  s. 3 of the Act. It is not necessary for us to deal with the question whether an illegal seizure amounts to ’deprivation’ of  property within  the meaning  of Art. 300A for purposes  of this case, as the State Government does not dispute the  right of  the petitioners to the sale proceeds. It is  true that  the seizure  was with intent to confiscate under s.  6A of the Act, but that would not make the seizure illegal,  if,   ultimately,  it  is  found  that  there  was contravention of an order issued under s. 3 of the Act.      If the  facts  were  not  in  controversy  and  if  the petitioners were  also able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check-post of Saiyan on the border, while in transit, in the course  of inter-State trade and commerce from the Union Territory of  Delhi, perhaps,  they would be entitled to the return of the seized wheat, or, in the alternative, 1171 to the  payment of  price thereof.  The State  contests  the right  of   the  Court   to  investigate   into  the  facts, particularly when  the matter  is a  fact in  issue  in  the aforesaid  proceedings   before  the   Additional   District Magistrate (Civil  Supplies), Agra.  Normally, it is not the function  of   this  Court  to  investigate  into  facts  in proceedings under  Art. 32 of the Constitution when they are controverted with a view to discerning the truth. The matter must, in  a situation like this, be left to the fact-finding body. For  the establishment  of their right to relief under Art. 32, the petitioners must, in our opinion, establish the necessary  fact   before  the   said   Additional   District Magistrate in  the proceedings  under s.  6A of  the Act. If they fail  to get  relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure.      The question  that the  seizures were  in  reality  for procurement of  wheat in furtherance of the directive of the Central Government,  and not  for breach  of the two Control

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Orders  and,  therefore,  were  nothing  but  a  ’colourable exercise of  power’, is  dependent on  facts to  be found on investigation. Further,  the question  that there  being  no control price  for wheat, the wheat should have been sold by public auction,  is again  a question  that must  be  raised before the  Additional District Magistrate (Civil Supplies), Agra, in  the proceedings  pending before him under s. 6A of the Act.      Turning  to   the  petitions   under  Art.  32  of  the Constitution by  wholesale dealers  of foodgrains  from  the State of  Uttar Pradesh, learned counsel appearing for these petitioners  challenged  the  impugned  teleprinter  message dated March 31, 1981, and the Notification No. P. XXIX-Food- 5-5(42)/80  dated  April  21,  1981,  issued  by  the  State Government of  Uttar Pradesh,  by which  cl. 4  of the Uttar Pradesh Foodgrains  (Procurement and  Regulation  of  Trade) Order,  1978,   has  been  amended,  particularly  on  three grounds, namely,  (1) the  impugned notification  fixing the maximum limit  of wheat  permitted  to  be  possessed  by  a wholesale  dealer   at  250  quintals,  at  a  time,  is  an unreasonable restriction  on the freedom of trade guaranteed under Art.  19(1)(g) of  the Constitution;  (2) there  is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by  them is the same, i.e., 250 quintals at a time and the  fixation of  such limit  in the case of a wholesale dealer is  arbitrary, irrational  and  irrelevant  and  thus violative of  Art. 14  of  the  Constitution;  and  (3)  the instructions  conveyed   by  the  State  Government  by  its teleprinter  message   dated   March   31,   1981,   placing restrictions 1172 on movement  of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter- district movement  of wheat within the State, were in breach of their  fundamental right  under Art.  19(1)(g) read  with Art. 301 of the Constitution.      The first  and second  contentions may  conveniently be dealt  with   together.  In   order  to   appreciate   these contentions, it is necessary to state a few facts:      During the  year 1979-80,  the country  was victim to a very serious  drought which  affected with Kharif as well as Rabi crops.  The Government  of India,  therefore,  fixed  a target of 9.5 million tonnes of wheat to be purchased in the summer months  of 1981  for the  national buffer  stock.  It fixed the  procurement price  at  Rs.  130  per  quintal  as against the support price of Rs. 127 per quintal recommended by the  Agricultural Price  Commission to  provide a  better incentive to the farmers. The procurement was carried out as a measure  of  price  support  without  any  restriction  on movement from  one State  to another.  However, some  of the States were  implementing local laws with regard to ensuring that  the   private  trade   adhered  to   the  stock  limit restrictions on  them and  did not  try to corner stocks for speculation  purposes.   The  original   target  fixed   for procurement was  9.5 million  tonnes but at the end of June, only 6.5  million  tonnes  had  been  purchased,  leaving  a deficit of  3  million  tonnes.  The  result  was  that  the Government of  India was  thus forced  to  buy  1.5  million tonnes of  wheat  in  the  world  market.  The  Government’s procurement drive was mainly frustrated by wholesale dealers of foodgrains  cornering the  stocks of  wheat by  paying  a price higher than the procurement price to the farmers.      The imperatives  of the  situation  demanded  that  the speculative tendencies  of the trade were curbed by strictly

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enforcing the  stock limits of traders. Under original cl. 4 of the  Uttar Pradesh Foodgrains (Procurement and Regulation of Trade)  Order, 1978, a wholesale dealer, commission agent or a  retailer could  have in  stock wheat not more than 750 quintals, 750 quintals and 100 quintals respectively, at any time. In  view of  the worsening  situation in  the national buffer stock  and in  the light  of  the  experience  gained during the  past few  years, the State Government was of the opinion that  it was  necessary and  expedient to re-fix the stock limits  of such dealers. This was expected to maximise procurement of  wheat to  meet  the  requirement  of  public distribution, as well as, the buffer stock. 1173      It cannot  be asserted  that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or  is of an excessive nature. The fixation of the stock limit  of wheat  to be possessed by wholesale dealers, at any  time, at  250 quintals is an important step taken by the State Government to obviate hoarding and black-marketing in wheat which is in short supply. It is hardly necessary to emphasise the  extent and  urgency of  the evil sought to be remedied thereby.  Perhaps fixation  of the minimum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at  a time,  is too  low, but  the restriction  so imposed cannot be treated to be arbitrary or of an excessive nature, beyond what is required in the national interest. It is a  matter of  common knowledge  that wholesale dealers of foodgrains mainly operate in large cities and towns and have the  means   and  capacity   to  manipulate  the  market  by withholding stocks  of a  commodity. There was need to check such speculative  tendencies in  the trade. It was therefore felt expedient  to re-fix  the  stock  limit  of  wheat  for wholesale dealers  at 250 quintals at a time, as in the case of a  commission agent.  The underlying  idea  is  that  the wholesale  dealers  should  be  allowed  to  continue  their trading activities within reasonable limits. The fixation of stock limit  at 250  quintals implies that wholesale dealers can have  at any  time, in  stock, a wagon-load of wheat. In Krishan Lal  Praveen Kumar  & Ors.  etc.  v.  The  State  of Rajasthan, this  Court has  interpreted the  words  ’at  any time’ as  meaning ’at  any given  time’. This  means that  a wholesale dealer  should not  have in  stock more  than  250 quintals at  a time.  But there  is  nothing  to  prevent  a wholesale dealer from entering into a series of transactions during the  course of  the day.  This Court  in Krishan  Lal Parveen Kumar’s  case (supra)  and Suraj Mal Kailash Chand & Ors. v.  Union of India & Anr., has upheld the validity of a similar notification  dated March  23, 1981,  issued by  the State Government  of Rajasthan  in exercise  of  the  powers conferred  by   cl.  18  of  the  Rajasthan  Trade  Articles (Licensing and  Control) Order,  1980,  fixing  the  maximum limit of  wheat to  be possessed by a dealer at any one time at 200  quintals, on  the ground  that it  is  a  reasonable restriction by  the State  Government within  the meaning of Art. 19(6)  of the Constitution. In view of these decisions, it is  difficult to  conceive as to how the contention based on Art. 19(1)(g) of the Constitution can survive. 1174      True it  is, if the governmental action is arbitrary or there is  no rational  nexus to  the  object  sought  to  be achieved it is liable to be struck down as violative of Art. 14 of  the Constitution.  The State  Government has  adopted various measures  in the  interest of the general public for the control  of production,  supply and distribution of, and trade and  commerce in,  essential commodities.  To  obviate

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hoarding  and   blackmarketing   in   foodstuffs,   it   has promulgated the  Order. It introduces a system of checks and balances to  achieve the object of the legislation, i.e., to ensure equitable  distribution and availability of essential commodities at  fair prices.  It cannot be said that looking to  the   prevailing  conditions,  the  imposition  of  such restrictions does  not satisfy  the test  of reasonableness. Nor can  it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be  achieved and  is, therefore, violative of Art. 14. On the contrary,  the limitation  imposed fixing  a stock limit for a  wholesale dealer  at 250  quintals  is  a  reasonable restriction  within   the  meaning  of  Art.  19(6)  of  the Constitution.      One  further   point  requires   to  be   noticed.  The contention that  the action taken by the State Government in issuing the  impugned  teleprinter  message  amounts  to  an ’intrusion’ on  the fundamental  right to  carry on trade or business under  Art. 19(1)(g)  or on  the freedom  of trade, commerce and  intercourse under Art. 301 of the Constitution appears to  be wholly  misconceived. As  already stated  the instructions  conveyed   by  the  State  Government  by  the impugned teleprinter  message imposing  the requirement  for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks  of wheat  during the course of transit, are not a ’restriction’ on  the fundamental right to carry on trade or business guaranteed under Art. 19(1)(g) or on the freedom of trade, commerce  and intercourse  under Art.  301. These are nothing but  regulatory measures  to ensure  that the excess stock of  wheat held by a wholesale dealer, commission agent or a  retailer is  not transported  to a  place outside  the State or  from  one  district  to  another.  Even  if  these requirements are  considered to be a ’restriction’ on inter- State or  intra-State trade,  that is,  across the  State or from one  part of  the State  to another,  the limitation so imposed on  the enjoyment  of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of Art.  19(1)(g) or Art. 301 of the Constitution. The State Government in  its return has stated that there is no ban on the export  of wheat  from the  State of  Uttar  Pradesh  to various other States or from one 1175 district to  another within the State, subject to the making of an  endorsement by  the Deputy  Marketing Officer  or the Senior Marketing  Officer concerned. The petitioners who are wholesale dealers  of  foodgrains  in  the  State  of  Uttar Pradesh are,  therefore, free  to carry  on  their  business within the permissible limits, i.e., they may carry on their trade or  business or  enter into inter-State or intra-State transactions of  wheat subject  to the  stock limit  of  250 quintals at a time.      In the  result, the  writ petitions  must fail  and are dismissed. The stay orders passed by the Court, from time to time, stand vacated. Formal orders for vacating stay granted in those matters need not be issued. There shall be no order as to costs. S.R.                              Petitions dismissed. 1176