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PETITIONER: VRAJLAL MANILAL & CO. & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH. & ORS.

DATE OF JUDGMENT: 25/04/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. HIDAYATULLAH, M. (CJ) BHARGAVA, VISHISHTHA HEGDE, K.S. GROVER, A.N.

CITATION:  1970 AIR  129            1970 SCR  (1) 400  1969 SCC  (2) 248  CITATOR INFO :  RF         1970 SC 564  (70)  RF         1972 SC 971  (8)  RF         1973 SC1461  (435)  RF         1978 SC1296  (57)  RF         1980 SC1789  (120)  R          1982 SC 902  (19)  RF         1982 SC1268  (17)  R          1984 SC 657  (16)

ACT: Madhya Pradesh Tendu, Pattu (Vyapar Viniyaman) Adhiniyam (29 of  1964), s. 5(2) and r. 9 of Rules  made  thereunder-State monopoly in trade-Restriction on transport-Whether- integral part of monopoly-Reasonableness of-If violate of Arts. 19(1) and (g) and 304.

HEADNOTE: The Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964 was passed for regulating trade in tendu leaves in  the public interest by creating a State monopoly in that  trade, that  is, in the purchase and sale of tendu leaves.   Under- s.  5(1) when the Act is brought into force in an  area,  no person,  except  the Government, its authorised  officer  or agent in respect of the unit where the leaves are grown  can purchase or transport them.  Explanation I permits purchases from  Government, its authorised officers and agents and  s. 5(2)  permits  two categories of persons  to  transport  the leaves,  namely  : (a) a grower, from one place  to  another within the unit where they are grown; and (b) the purchaser, under  Explanation 1, either for manufacturing bides  within the  State  or for their export outside the State,  under  a permit in accordance with its terms and conditions.  Rule  9 of  the  1965  Rules made under the  Act  provides  for  the application to be made for a transport permit. The  appellants had several branches in different  areas  of the  State.  Whenever they purchase the leaves they have  to be moved to their warehouses outside and from there to their branches  and then, to the sattedars, that  is,  independent

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contractors,  who  undertake to have  bidis  rolled  through mazdoors  to whom the sattedars distribute tobacco  and  the tendu leaves supplied by the appellants.  There were 6 to  7 thousand such sattedars and the number of mazdoors  employed by the sattedars was very large. The appellants applied for and obtained permits  authorising them  to  transport the leaves purchased by  them  to  their godowns  situate  outside the units.  On June 4,  1965,  the Divisional  Forest  Officer issued an  order  which  forbade altogether movement of old leaves, that is, those which were in  stock  when the Rules came into force.  The  order  also provided that permits issues by the Forest Department  would be necessary for transport of the leaves from warehouses  to branches, and from these to the sattedars, and when the sattedars distributed leaves to  the mazdoors  employed  by  him.  On  a  representation  by  the appellants,  pointing  out  the  difficulties  involved   in obtaining  such  permits  the branch managers  of  the  bidi manufacturing  firms  were  authorised  to  issue  transport permits  to  the  sattedars, but  finding  that  the  branch managers  were  issuing  permits  for  bulk  transport,  the District  Forest  Officer  rescinded  the  relaxation.   The appellants thereupon challenged the validity of s. 5 and  r. 9 in the High Court as violating Art. 19(1)(f) and (g),  and Arts.  301  and  304 of the Constitution.   The  High  Court dismissed the petition. In appeal to this Court, HELD  :  -What s. 5(2) and r. 9 are intended to  require  is that  a manufacturer must have a permit to move  the  leaves purchased by him from the                             401 unit  where he has purchased them to his warehouse  outside, from there to his branches and also when he transports  then to  his  sattedars.  But no such permit is  intended  to  be necessary   when   the  leaves  are  distributed   for   the manufacture  of  bidis by those sattedars to  the  mazdoors. Such  a  construction  would make  the  restriction  imposed reasonable within the meaning or Arts. 19(1) (5) and (6) and Art. 304(b). [412A-C] The  Legislature thought that it was in the public  interest to  entrust  the entire trade to the State which  would  fix reasonable prices in consultation with an advisory committee and  make it, at the same time, compulsory for the State  to purchase the entire stock which would be offered for sale at those prices.  Considering the object of the Act, it  cannot be  said  that  such  a  monopoly  was  unreasonable.    But transport  of  the leaves once purchased or sold  would  not prime facie be an integral part of monopoly in the trade and restrictions on such transport should be reasonable.  It may be  that  free movement of leaves even after they  are  sold would  create  difficulty in  effectively  implementing  the intended  monopoly in the trade or that such  free  movement would  make  checking of illegitimate  transactions  in  the leaves  difficult  and therefore some check on  movement  is necessary.  But, considering the extraordinary inconvenience which would be caused to the manufacturer and balancing that with  the  mischief  feared  by the State,  when  s.  5  was enacted,   it  could  not  have  been  intended   that   the manufacturer should also obtain permits in respect of leaves distributed, to the vast number of mazdoors for rolling  the bidis, by the sattedars who were themselves considerable  in number. [41 OC; 411G] In the view, the restrictions against free transport  cannot be  held  to  be unreasonable except to the  extent  of  its requiring  a permit for distribution to the  mazdoors.   The

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order canceling the concession also could not be  challenged as an unreasonable restriction. [412D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2262  of 1966. Appeal  from the judgment and order dated April 22, 1966  of the Madhya Pradesh High Court in Misc.  Petition No. 439  of 1965. A.   K. Sen and Rameshwar Nath, for the appellants. I.   N. Shroff, for the respondents. The Judgment of the Court was delivered by Shelat, J. This appeal under certificate is directed against the judgment of the High Court of Madhya Pradesh  dismissing the writ petition filed by the appellants in that Court. The  appellants  are  a partnership  firm  carrying  on  the business  of manufacturing and selling bidis  and  purchase, stock,  transport and consume for that purpose  considerable quantity  of tendu leaves.  In 1964, the  State  Legislature passed  the  Madhya Pradesh Tendu Patta  (Vyapar  Viniyaman) Adhiniyam, 29 of 1964 (hereinafter referred to as the  Act). The Act received the President’s assent on November 23, 1964 and  was brought into force on November 28, 1964.   The  Act inter alia created a State monopoly in 402 the  trade  of  tendu  leaves  and  under  S.  5(1)  thereof prohibited anyone, excepting those mentioned therein, either to  purchase or transport tendu leaves.  Sub-s. 2 of  s.  5, however,  permitted  a grower to transport them  within  the unit where they grow and a purchaser who has purchased  them from  the  State  Government, its  authorised  officers  and agents for manufacturing bidis or for exporting outside  the State to transport them outside such unit under a permit and in  -accordance with the terms and conditions  thereof.   By virtue of S. 19 the State Government framed rules called the Madhya  Pradesh Tendu Patta (Vyapar  Viniyaman)  Niyamavali, 1965 (referred to hereinafter as the rules).  Rule 9 of  the said  rules  provided  for an application  for  a  transport permit in form M and the issuance of such permit in form  N. The appellants accordingly applied for and obtained  permits authorising them to transport tendu leaves purchased by them from  the  various  forest units to  their  godowns  situate outside  those units.  In the course of their  business  the appellants  transport  the said leaves first from  the  said units to their warehouses, from there to their branches  and thereafter  distribute them and tobacco to their  sattedars, who  are  independent  contractors, and who  in  their  turn distribute  the said leaves and tobacco to various  mazdoors living  in  different  villages  for  rolling  the   ’bidis. According  to  the  practice of  the  appellants,  the  said sattedars  enter  into contracts with them under  which  the appellants  supply to them the said leaves -and the  tobacco and the sattedars deliver to the appellants bidis rolled  by the mazdoors in proportion to the quantity of the leaves and tobacco  supplied to them.  On June 4, 1965, the  Divisional Forest  Officer  issued an order  which  forbade  altogether movement  of  old  tendu leaves and as  regards  new  leaves provided that their movement from one village to another had to  be covered by a permit.  It also provided  that  permits would  be  necessary for bulk transport from  warehouses  to branches and from there to sattedars, and that such  permits would  be issued by range assistants and range  officers  on receipt of applications therefore.  The appellants thereupon

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made  a  representation  to the  Divisional  Forest  Officer mentioning the several difficulties which would’ result from the Said order and the said officer, by his order dated June 8,  1965,  in  partial  modification  of  his  said   order, permitted  branch  managers  of  bidi  manufacturing   firms themselves   to  issue  transport  permits   to   sattedars. Finding,  however,  that instead of  distributing  the  said leaves  to the sattedars, the branch managers  were  issuing permits for bulk transport, the said officer on October  12, 1965  rescinded his order of June 8, 1965.  The  result  was that  the  appellants were required to  obtain  permits  for moving  the  tendu leaves from their branch offices  to  the sattedars.   The appellants thereafter filed the  said  writ petition in the High Court claiming that under s. 5 and  the said  rules they were required to obtain permits  only  when moving the leaves purchased by them from units where 403 they were grown to their warehouses and that once they  were so moved to the warehouses there could be no restriction  in their further movement from the warehouses to their branches and  from  there to their sattedars and the  mazdoors.   The appellants  claimed  a writ in the nature  of  mandamus  for setting aside the said orders dated June 4, 1965 and October 12, 1965 and also for striking down s. 5 if it was construed as  prohibiting, except under permit, movement of  the  said leaves  from  their  warehouses to  the  branches  and  from thence,  to  the  sattedars and  the  mazdoors.   The  State Government, on the other hand, claimed that the restrictions against  transport of the leaves were justified under  s.  5 and the rules and were valid.  The High Court held that on a proper  construction of S. 5 (2) (b) a permit was  necessary for transport of the leaves by a purchaser not only when  he moved  them  from the units where they were purchased  to  a place outside but also when he moved them from one place  to another  outside  the  said unit, that S.  5  (1),  being  a provision creating the State monopoly in the trade of  tendu leaves,  was protected by the latter part of Art. 19 (6)  of the  Constitution, that the restriction imposed by s. 5  (1) on  transport  was valid and that sub-s. 2  being  merely  a relaxation  against  the  said prohibition  was  valid.   It further  held  that the restrictions on transport  of  tendu ’Leaves before and after the sale thereof by Government  was an  integral part of the trade monopoly intended to  prevent surreptitious  sales of tendu leaves by persons  other  than Government, their officers and agents, that it was necessary to  control the movement of the said leaves to prevent  pur- chasers  from  surreptitiously purchasing  and  transporting them  under  cover of leaves purchased  from  Government  by mixing the contraband with those lawfully purchased and that such  control  was basically and essentially  necessary  for creating, the said monopoly.  In the result, the High  Court held  that the-said restrictions with regard to purchase  as also transport were valid and the challenge against s. 5 and the said rules was not sustainable. Counsel for the appellants raised the following  contentions (1)  that  s. 5 (2) (b) should be construed,  though  it  is couched in wide language, to mean that it prohibits  without permit  movement of tendu leaves from the units  where  they are  purchased  to the warehouses of the  purchaser  outside such  units, that that restriction alone was  necessary  for effectively  implementing  the  State’s  monopoly  in  tendu leaves,  and that once they were purchased and  property  in them had passed to the purchaser and the leaves were brought to  his warehouse there could no longer be any necessity  to restrict  their movement from the stage of warehousing  them

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to  the  stage  of their consumption  in  manufacturing  the bidis; (2) that neither s. 5 (2) (b) nor the rules authorise restrictions on the movement of these leaves once they  were brought under a permit to the warehouse, and therefore,  the order dated June 4, 1965, 404 requiring  the purchaser to obtain permits for  transporting them from his warehouse to his branch and from there to  the sattedars  and the mazdoors was ultra vires the section  and the  rules; (3) that the restrictions as to  transport  were ancillary  to and were for the effective enforcement of  the trade monopoly and not an essential or integral part of  the scheme  of  that monopoly, that they  were,  therefore,  not protected  by the latter part of Art. 19(6) or Art.  304(b), and have, therefore, to pass the test of reasonableness; and (4)  that, if S. 5 were to be literally construed so  as  to mean  that it authorises the restriction on  movement  after the  leaves  were  warehoused requiring  permits  for  their transport  from  stage  to  stage  until  they  reached  the mazdoors,   the  entire  system  of  permits  would   become unworkable  and  the restrictions would have to be  held  as unreasonable;  that such a construction rendering S.  5  and the rules unconstitutional on the ground of being  violative of  Art. 19(1) (f) and (g) and Arts. 301 and 304  could  not have  been  intended by the legislature.   Counsel  for  the State, on the other hand, maintained that the language of S. 5 was clear and unambiguous, that it forbade without  permit transport  at any stage right upto the stage of  manufacture of the bidis and that those restrictions were the  essential part of the scheme of the State monopoly and therefore  were protected  by the latter part of Art. 19 (6) ;  and  further that   even   if  they  were  not,  they   were   reasonable restrictions and therefore permissible. In  support  of  their rival contentions  counsel  drew  our attention to the various forms provided in the rules as also to  rule  4 of the new rules dated February 14,  1966  which repealed the rules of 1965.  We may, however, make it  clear that the parties in the present appeal -are governed by  the rules  of  1965, and therefore, anything that  we  say  here would  not govern either the construction or the  effect  of the new rules. In examining the correctness of the contentions urged before us  the  first  task  is  to  ascertain  what  exactly   the legislature  intended to do while enacting s. 5.  The  long, title  of  the  Act  clearly says that  it  was  passed  for regulating  trade in tendu leaves in the public interest  by creating  the State monopoly in that trade, that is to  say, in the purchase and sale of tendu leaves by the State  alone and not for creating a monopoly in their transport.  To that end the Act empowers Government to divide the specified area or  areas  to  which the Act is applied into  units  and  to appoint agents for different units, and gives a monopoly  to Government,  its authorised officers and agents to  purchase these  leaves  from the growers at prices fixed  by  it  and makes other provisions to achieve the said object.  Under s. 5(1),  from the date when the Act is brought into  force  in area  or  areas as may be notified, no  person,  except  the Government,  its authorised officer or -agent in respect  of the  unit  where  these leaves are  grown  can  purchase  or transport                             405 then.  Sub-s. 1, thus, imposes a total ban against purchase, sale  and  transport  of tendu leaves except  by  the  three categories of persons mentioned therein.  Under ss. 7, 8 and 9,  the  Government  has  to  fix  the  purchase  price   in

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consultation  with an advisory committee appointed  therefor and open depots where the growers would sell their leaves to it  or to its authorised officers or agents at prices  fixed as aforesaid.  Though s. 5(1) clamps a ban against  purchase except  by  those mentioned therein, explanation  1  permits purchases  from  Government,  its  authorised  officers  and agents   and  such  purchases  are  deemed  not  to  be   in contravention  of the Act.  Notwithstanding the ban  against transport under sub-s. 1, sub-s. 2 permits two categories of persons  to  transport  the said leaves : (a)  a  grower  is allowed to move his leaves from one place to another  within the  unit  where they are grown, and (b) a  person  who  has purchased  the leaves as aforesaid either for  manufacturing bidis within the State or for their export outside the State is  allowed to transport under a permit leaves so  purchased from  out of the unit where he has purchased  in  accordance with the terms and conditions thereof.  The first  exception is  made  to  enable  the  grower  to  sell  his  leaves  to Government and the second is made to enable the purchaser to utilise  the  leaves for the two purposes for which  he  has purchased them. Under  the rules an exporter means a person who sells  tendu leaves  to  one  having business outside the  State  or  who exports them for the manufacture by him of bidis outside the State.    A   manufacturer  of  bidis  includes   a   person manufacturing  them  through mazdoors by advancing  to  them these leaves or tobacco or both.  Rules 4 and 6 provide  for registration  of growers, manufacturers and  exporters,  and rule  7 provides for the sale of leaves purchased  under  S. 5(1) by Government, its officers and agents. under rule 6  a manufacturer and an exporter has to maintain accounts of his stock and submit periodical returns thereof in form H -and I showing  amongst  other things the balance of stock  at  the date  when the last return was made the stock added and  the manner of its disposal including the stock consumed, sold or rendered  useless  and  destroyed.  Rule 8  provides  for  a certificate  of  sale  to  be issued  to  the  purchaser  by Government, its authorised officer and agent.  Under rule  9 an application for a transport permit is to be made in  form M and, the permit issued must be in form N. Form M  provides for  giving  particulars  such as  the  quantity  of  leaves purchased,  the unit or units where they are putchased,  the place  or places where they are stored, the  destination  to which  they  are to be transported and the place  or  places where  such  transported leaves are to be  stored.   Similar particulars  are to be mentioned in the permit as stated  in form N. These   elaborate   provisions  in  conjunction   with   the provisions  of  s. 5 indicate the extreme  jealousy  of  the draftsman not to leave LI3 Sup CI/69-12 406 any loopholes in the net-work of control enabling anyone  to possess  these leaves by illegitimate acquisition  or  their being smuggled out in violation of these provisions from out of  the units where they are grown or from the  place  where they are warehoused after their purchase.  It is clear  from S.  5  (2)  (b),  the rules and  the  said  forms  that  the intention  underlying them all is to prohibit  except  under permit, the movement of leaves from the units where they are purchased  to any place outside either for storing  them  or for  their  consumption in the manufacture of bidis  or  for exporting  them outside the State.  The elaborate  treatment and  the clarity of the language of these  provisions  makes the  argument, that they were intended to restrict only  the

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movement  from the purchasing unit to the place  of  storage -and  that the leaves would be free for subsequent  movement impossible.  The first limb of Mr.      Sen’s       argument consequently cannot be upheld. Such a construction, however, raises the question as to  the constitutional  sustainability of s. 5 and rule 9 which  are the provisions seriously challenged before us.  An identical question  challenging  the validity of ss. 3 -and 4  of  the Orissa  Kendu Leave (Control and Trade) Act, 28 of 1961,  an Act  almost similar in terms to the one before us,  and  the scope of the amended clause 6 of Art. 19 came up before this Court in Akadasi Padhan v. State of Orissa(1).  Dealing with cl. 6 of Art. 19 and its impact on cls. (f) and (g) of  Art. 19(1)  this  Court laid down -at page 707 of the  report  as follows :               "In  dealing  with  the  question  about   the               precise  denotation  of  the  clause  ’a   law               relating to’, it is necessary to bear in  mind               that  this clause occurs in Art.  19(6)  which               is,  in  a  sense, an exception  to  the  main               provision  of Art. 19(1) (g).  Laws  protected               by  Art.  19(6)  are regarded  as  valid  even               though they impinge upon the fundamental right               guaranteed under Art. 19(1)               That is the effect of the scheme contained  in               Art.  19 ( I read with clauses (2) to  (6)  of               the  said Article.  That being so it would  be               unreasonable to place upon the relevant clause               an  unduly wide and liberal construction.   ’A               law relating to’ -a State monopoly cannot,  in               the   context,  include  all  the   provisions               contained  in the said law whether  they  have               direct  relation  with  the  creation  of  the               monopoly  or  not.  In our opinion,  the  said               expression should be construed to mean the law               relating  to  the monopoly in  its  absolutely               essential  features.   If  a  law  is   passed               creating  a State monopoly, the  Court  should               enquire what are the provisions of the said law               (1)   [1963] Supp. 2 S.C.R. 691.                                    407               which are basically and essentially  necessary               for  creating the State monopoly.  It is  only               those  essential  and basic  provisions  which               ’are  protected  by the latter  part  of  Art.               19(6).  If there are other provisions made  by               the  Act which are subsidiary,  incidental  or               helpful to the operation of the monopoly, they               do  not  fall under the said  part  and  their               validity  must be judged under the first  part               of Art. 19(6).  In other words, the effect  of               the  amendment  made  in Art.  19  (6)  is  to               protect  the law relating to the  creation  of               monopoly  and that means that it is  only  the               provisions of the law which are integrally and               essentially connected with the creation of the               monopoly that are protected.  The rest of  the               provisions which may be incidental do not fall               under the latter part of Art. 19(6) and  would               inevitably  have  to satisfy the test  of  the               first part of Art. 19(6)." In  that case ss. 3 and 4 of the Orissa Act were  challenged on the ground that the monopolistic rights to purchase kendu leaves  under  s. 3 and the right to fix purchase  price  of those leaves conferred by the two sections impinged upon the

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right  of the petitioners there under Art. 19 (1 )  (f)  and (g)   and  that  the  restrictions  imposed  by  them   were unreasonable and were not saved either under cl. 5 or cl.  6 of Art. 19.  The Court held that whereas the exclusive right of  purchase conferred by s. 3 was an essential part of  the trade  monopoly  which could validly be  created  under  the latter part of cl. 6 and was therefore beyond the  challenge of  reasonableness  of restrictions which  it  imposed,  the exclusive right to fix the prices conferred by s. 4 was not, though  it  may  be  that such  a  power  was  necessary  to effectually   enforce  the  trade  monopoly  under   s.   3. Therefore,  though the latter did not have to pass the  test of  reasonableness, the former had to under cl. 5  ’and  the first part of cl. 6, as it imposed a restriction not only on the right under cl. (g) but also under cl. (f).  However, on examining  the  right of the State to fix  the  prices,  the Court  came to the conclusion that the restriction  imposed, by s. 4 on the growers of Kendu leaves was not only in their own interest but also reasonable and rejected the  challenge of  unconstitutionality  of  both ss. 3 and  4.  As  already stated, the challenge to s. 3, which provided the  exclusive right  to  purchase and transport was confined only  to  the exclusive  right of the State to purchase kendu leaves.   No question  was  raised  regarding  the  exclusive  right   of transport  under  s.  3 which prohibited  others,  save  the State, its authorised officers and agents, from transporting the  leaves  from one place to another, and  therefore,  the Court did not express any opinion as regards that part of s. 3.  That  question,  therefore, is  not  concluded  by  that decision and is open for determination. 408 The  impugned  s.  5 raises in relation to  the  problem  of transport  two questions : (1) whether the restrictions  are an  integral part of the trade monopoly it seeks to  create, and   therefore,  free  from  any  challenge  as  to   their reasonableness under the latter part of Art. 19(6), and  (2) as regards its interpretation and scope.  It may be recalled that in the Orissa case the Court declined to treat s. 4  of that  Act  which conferred the exclusive right  to  fix  the prices on the State as ail integral and organic part of  the trade  monopoly  in  Kendu leaves but  treated  it  only  as effectively abetting its implementation.  Can an embargo  on transport  by anyone, save those mentioned in cls. (a),  (b) and  (c)  of  s. 5(1) and the  manufacturers  of  bidis  and exporters  of these leaves under the permit, be regarded  as an integral and organic part of the trade monopoly in  them, i.e., a monopoly in purchasing and selling them in such area or  areas to which the Act is applied ? It may be as  stated in the State’s counter-affidavit that the trade monopoly can be  effectively  implemented  only if the  movement  of  the leaves  is checked and regulated by confining the  right  of free movement to the State and its agents and under  permits to the manufacturers of bidis and the exporters and that  if free  movement were -allowed there would be loopholes  which would  suffer illegitimate acquisitions and sales in  leaves smuggled  through  the areas where they grow,  raising  also difficulties  in checking the stocks legitimately  purchased from Government.  If a person were to purchase a quantity of leaves and is allowed to move it freely from the unit  where it is purchased to his warehouse outside that unit and  from there to other points, it might be easy for such a purchaser to  effect illegitimate sales and purchases and yet show  at the  same  time  the  correct  stock  when  checked  by  the authorities.   It may also be that without the  restrictions of movement it would become difficult, if not impossible, to

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identify  the  stock of a manufacturer or an  exporter  when checked  in his warehouse as the one which he had  purchased from  Government.   All  this  may  be  true,  but  is   the prohibition  or  regulation  of  transport  an  integral  or essential  part of the monopoly without which  the  monopoly which the Act seeks to create cannot come into being ? The  long title of the Act recites that the Act was  enacted for  regulating  "the trade in tendu leaves" by  creating  a State  monopoly in such trade.  Trade in tendu leaves  would consist of dealing in those leaves, i.e., their purchase and sale.  Transport of the leaves once purchased or sold  would not prima facie be an organic or integral part of dealing in those  leaves.   It is something extraneous  to  dealing  in those leaves, something which takes place after the purchase or  the sale thereof is completed and property in  them  has passed  from the dealer to the purchaser and therefore  does not form part of the trade in that commodity.  That being                             409 so,  the restrictions on their transport contained in  s.  5 cannot be held to be the integral part of the trade monopoly but  as  ancillary  Or  incidental  thereto,  made  for  its effective enforcement.  If that be so, it affects the  right of  the  purchaser  under Art. 19 (1) (f ) to  hold  and  to dispose  of the goods he has acquired, a right which is  not co-related, as the right under cl. (g) is, with the monopoly which  the section seeks to create.  It follows,  therefore, that  such  a  provision  would have to  pass  the  test  of reasonableness  under cl. 5 and the first part of cl.  6  of Art. 19.  That would also be the position in respect of Art. 304(b).   But since the requirement of these  provisions  is the same the yardstick of reasonableness would be common  to all  these  cases.   It  is well  recognised  that  when  an enactment is found to infringe any of the fundamental rights guaranteed  under Art. 19(1), it must be held to be  invalid unless  those  who  support  it  can  bring  it  under   the protective provisions of cl. 5 or cl. 6 of that Article.  To do  so, the burden is on those who seek that protection  and not on the citizen to show that the restrictive enactment is invalid.  (cf.   Saghir Ahmad v. The State of U.P.  (1)  and Khyerbari Tea Co. Ltd. v. The State of Assam (2) . That  leads us to the next question as to the scope  of  the embargo on movement imposed by s. 5. If read literally, sub- s.  1  places -a total ban on any and every  person  against transporting the leaves, except those only mentioned in cls. (a), (b) and (c) therein.  Sub-s. 2 also, if read literally, would mean that an exception is made only in the case of (a) a grower who can move his leaves freely but within the  unit where  they  have  grown,  and  (b).  a  purchaser  who  has purchased  the  leaves for manufacturing  bidis  within  the State  or  for their export outside the State, but  under  a permit  and  in accordance with its  terms  and  conditions. Section  5 read thus, therefore, would mean that except  for these  two  categories of persons, no one can  apply  for  a permit  to move the leaves from one place to another  as  if the  legislature intended that the leaves must remain  where they  -are when purchased.  Does it mean that a  person  who purchases  these leaves for purposes other than  manufacture of bidis or export cannot move them even from the unit where he  has  purchased to his place of residence or  business  ? That  would  appear to be so because the  provisions  for  a permit  apply  only  to the manufacturer of  bidis  and  the exporter  and to no other purchaser.  That manifestly  could not  have  been the intention of the legislature,  for,  the leaves  being perishable, they are liable to. get  destroyed if  their movement is totally forbidden.  Quite  apart  from

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this   consideration,   a  mere   literaly   or   mechanical construction would not be appropriate where (1) [1955] 1 S.C.R. 707.   (2) [1964] 5 S.C.R.975, 1003. 410 important questions such as the impact of an exercise of  -a legislative   power   on   constitutional   provisions   and safeguards  thereunder  are concerned.  In cases of  such  a kind,  two rules of construction have to be kept in  mind  : (1) that courts generally lean towards the constitutionality of  a  legislative  measure impugned before  them  upon  the presumption that a legislature would not deliberately  flout a constitutional safeguard or right, and (2) that while con- struing such an enactment the court must examine the  object and  the purpose of the impugned Act, the mischief it  seeks to  prevent and ascertain from such factors its  true  scope and meaning.  The object of the Act clearly was to  regulate trade  in tendu leaves in the public interest and  for  that end  to  create a State monopoly so that the  purchasers  of these  leaves may not exploit the need -and the  poverty  of small  growers  and  pay  the  least  possible  price.   The legislature  thought that it was in the public  interest  to entrust  the  entire  trade  to  the  State  who  would  fix reasonable prices in consultation with an advisory committee and  make  at  the same time compulsory  for  the  State  to purchase the entire stock which the growers would offer  for sale  at those prices.  Considering the ,object of the  Act, it cannot be conceived that upon the assumption that such  a monopoly  was in the public interest the exclusive right  of the State to purchase and sell these leaves is unreasonable. But the question as regards their transport is far from easy of  solution.  It may be that free movement of  leaves  even after  they are sold to merchants would create  difficulties in  effectively implementing the intended monopoly in  their trade  or  that such free movement would  make  checking  of illegitimate transactions in the leaves difficult.  But then it is difficult to conceive of a monopoly in this particular commodity,  as  in  others,  without  any  likely  loopholes whatsoever.   Can  the State, therefore, to  plug  all  such loopholes pass a measure which, according to the appellants, imposes  unreasonable  restrictions  and  which  results  in stultifying  their  business ? There is a strong  school  of thought which believes that monastic tendencies in economics spell stagnation and that pluralism is as much desirable  in economics as in politics and other fields of life.  That may or  may  not  be correct, but take the present  case  as  an illustration.  According to the appellants, they manufacture as many as 1-1/2    crores  of  bidis  a  day.   They   have established  a net-work of branches in several areas of  the State.-  Wherever they purchase the leaves they have  to  be moved  to their warehouses outside and from there  to  their branches  and  then to the sattedars who undertake  to  have bidis   rolled  through  mazdoors  to  whom  they  in   turn distribute tobacco, and these leaves supplied to them by the appellants.  Even according to the Divisional Forest Officer there  were as many as 6 or 7 thousand sattedars  in  Saugor district   alone  with  whom  manufacturers  of  bidis   had contracts as mentioned -above.  The number of mazdoors  whom these sattedars employ for rolling bidis would certainly 411 be  considerable.   We  were  told  that  practically  every household  in  villages scattered from one  another  engages itself in bidi-rolling labour.     It  is  also  conceivable that in some of the households not only the  adults but  the minors  also would be engaged in this work. If the  movement of leaves from stage to stage were to be so regulated as  to

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require  permits  at  each stage- it is,  not  difficult  to imagine  that considerable inconvenience to all  engaged  in the business of manufacturing bidis would inevitably  ensue. The correspondence on record shows that at one time even the Divisional  Forest Officer was of the view that it would  be impossible for the staff under him to cope with the work  of issuing permits at each stage of the movement of the  leaves and   therefore  permitted  the  branch  managers   of   the appellants  to  issue permits when leaves  were  moved  from their  branches  to  the sattedars.   That  relaxation  was, however, cancelled as in his view the branch managers  began to  move  the leaves in bulk contrary to  his  intention  in granting that relaxation. In spite, however, of the inconvenience which such a  system might  result  in,  there can, at the same  time  be  little doubt,  and even Mr. Sen agreed, that some kind of check  on movement is necessary, for, without it the monopoly  created by  the Act would not effectively function.  In our  view  a permit  system  which  regulates  the  movement  of   leaves purchased  by  a manufacturer of bidis from the  unit  where they  are purchased to his warehouse, then to  the  branches and  to the sattedars cannot upto that stage be regarded  as unreasonable  in  the light of the object of  the  Act,  the economic conditions prevailing in the State and the mischief which  it  seeks to cure.  At the same time  to  expect  the manufacturer  to  get permits issued to  his  sattedars  for distribution   by  them  to  the  innumerable  mazdoors   of comparatively small quantities of these leaves would be  not only  unreasonable  but  frustrating.   The  various  checks imposed  under the rules on the manufacturer by way  of  his having  to  maintain  stock  registers,  submit   periodical returns, the right of inspection of the authorities etc. are sufficient to reasonably check transactions contrary to  the Act.  But, considering the extraordinary inconvenience which would be caused to the manufacturer and balancing that  with the  mischief feared by the State, we think that when  s.  5 was enacted the legislature could not have intended that the manufacturer  should also obtain permits in respect  of  the leaves  distributed  to  the vast  number  of  mazdoors  for rolling  the  bidis  by the  sattedars  who  are  themselves considerable in number.  Though, therefore, s. 5 is  couched in apparently wide language, the very object of the Act,  as disclosed  in its long title, contains inherent  limitations against  an  absolute or as strictly regulated a ban  as  it would at first reading of the section appear. 412 In our view, reading s. 5 (2) along with rule 9 of the  said rules,  what  they  are  intended  to  require  is  that   a manufacturer must have a permit to move the leaves purchased by him from the unit or units where he has purchased them to his  warehouse outside and from there to his  branches  -and also when he transports them to his sattedars.  But, no such permit  was  intended to be necessary when  the  leaves  are distributed for the manufacture of bidis by these  sattedars to the mazdoors whom he employs.  A construction so  limited in  its  sweep is commendable as it is consistent  with  the object  of the Act and is also in harmony with cls. 5 and  6 of  Art. 19(1) and cl. (b) of Art. 304.  Regarding  the  ban against movement of old leaves contained in the order  dated June  4, 1965, there can be no difficulty as it is  conceded that  old  leaves in the context mean those  which  were  in stock  when these rules came into force and not the  balance of leaves left unconsumed from year to year.  So  construed, the restrictions against free transport cannot be held to be unreasonable and the validity of s. 5 and rule 9 as also the

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order of June 4, 1965, except to the extent of its requiring a  permit  for  distribution  to  the  mazdoors,  cannot  be successfully challenged.  So far as the order dated  October 12,  1965  is  concerned, it was a mere  cancellation  of  a concession  and such cancellation cannot be challenged as  a restriction, much less as an unreasonable restriction. In the result, subject to the observations hereinabove made, the  appeal  is dismissed, but in the circumstances  of  the case we make Po order as to costs. Y.P.                    Appeal dismissed. 413