PARAMESWARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE petitions seek to quash the notification Ext. P1 dated 26 71973 issued by the State Government in purported exercise of its powers under sub-rule (2) of R. 114 of the Defence of India Rules, 1971, for short, the Rules. This notification was published in the Kerala Gazette No. 31 dated 31st July, 1973. Sub-rule (2) of R. 114 of the Rules runs thus: "if the Central Government or the State Government is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices. it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter. "

(2.) WE shall also read the Notification Ext. P1: " NOTIFICATION No. 19768/e2/73/id. Dated, Trivandrum , 26th July, 1973. S. R. O. No. 474/73: Whereas use of machinery for the extraction of fibre from coconut husk increased considerably in the district of trivandrum, Quilon and Alleppey in recent times; And whereas mechanisation in the production of such fibre results in very high consumption of coconut husks and the consequent enhancement of the price of such husks; And whereas due to the very high consumption of coconut husks for the production of fibre by using machinery and the enhancement of the price of such husks, sufficient quantity of such husks are not available at fair prices in the said districts for use in the traditional sector; And whereas the Government are of opinion that for securing the equitable distribution and availability at fair prices of coconut husks in the said districts for production of fibre in the traditional sector it is necessary to prohibit the use of machinery in (hose districts for the production of such fibre; Now, therefore, in exercise of the powers conferred by sub-rule (2) of R. 114 of the Defence of India Rules, 1971, the Government hereby prohibit the production of fibre from coconut husks by the use of the machinery in the said districts. By Order of the Governor. "

(3.) THE State Government has taken the stand that the formation of the opinion by the State Government is not a justiciable issue. We shall extract the very words in the counter affidavit filed by the joint Secretary to the State Government, who is said to be conversant with the facts. This is in Para. 3 of the counter affidavit filed in O. P. No. 2821 of 1973 and we shall extract that paragraph: "3. Exhibit P1 notification is issued under R. 114 (2)of Defence of India Rules, which is a piece of emergency legislation. and that the enabling language in R. 114 Defence of India Rules confers absolute discretion in the State Government in issuing the notification thereunder. THE matters specified in R. 114 (2) Defence of India Rules are matters of opinion or judgment and not matters of fact. THE rules of construction of such emergency legislations are well settled by decisions of courts as hereinafter submitted. THE onus for forming the opinion is discharged by the notification itself. THE material on which the Government founded its opinion cannot be enquired into by courts. THE opinion is entirely that of the Government. THE causes that induced the formation of the opinion is that of Government alone. THEre can be no triable issue as to the reasonableness of the formation of the opinion, for the court to enquire into. As the administrative plenary discretion is vested in the government, it is for the Government to decide whether there are grounds for the opinion and act accordingly. No outsider's decision can be invoked, nor is the issue within the competence of the court. It cannot be suggested that the government must prove that it was so satisfied when it issued the order or notification. THE compliance with the requirements of the provisions of R. 114 defence of India Rules has to be presumed. THE court cannot enquire whether in fact the Government had grounds for the formation of the opinion under R. 114 (2)Defence of India Rules. THE matter is one of executive discretion of the government. THE court cannot compel the Government to give particulars of the grounds on which the opinion was formed. THE issue of the notification by the government ex facie regular and duly authenticated constitutes a complete defence in an action impugning the order, and the Government cannot be called upon to justify the notification by proving that the Government had before it materials sufficient to support. "