KALA MIAH Vs. S C ROY

JUDGEMENT

(1.) The petitioners in this case are three in number. They are owners of cattle viz, cows and buffaloes. It is stated in the petition that for nearly 100 years they have been carrying on business in the sale and purchase of cattle and supplying milk in different parts of the city of Calcutta, within the area known as "Saudagarpatty-Cossipur-Chitpur" area. The West Bengal Cattle Licensing Act (West Bengal Act I of 1959) (hereinafter referred to as the "said Act") came into operation on the 20th March, 1959. Under the provisions of Sub-section (2) of Section 1 of the said Act, it was to come into force in such urban areas and with effect from such dates as the State Government may by notification in the Official Gazette, appoint. On 25th June, 1960 a notification was published, in an Extra ordinary issue of the Calcutta Gazette, being Notification No. 3406-Milk, whereby 15th July, 1980 was fixed as the date on which the said Act should come into operation in ward Nos. 3, 4, 5, 62, 63 and 64 referred to in Schedule V of the Calcutta Municipal Act, 1951. This covers the area to which the petitioners carry on their trade and business. An appeal was preferred to the Chief Minister of the State of West Bengal but it has been rejected. It is not clear from the pleadings as to why an appeal was preferred before the Chief Minister, because under the said Act, "Appellate Authority" means an Appellate Authority as appointed by notification for any urban area or part thereof in which the said Act has come into force. There is nothing to show that the Chief Minister has been appointed as the

(2.) I now come to the provisions of the Constitution. Part XIII of the Constitution deals with "trade, commerce and intercourse within the territory of India". Article 301 provides that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 confers right upon Parliament to make laws imposing restrictions on the freedom of trade, commerce or intercourse between one State and another or within one part of the territory of India or within any part of the terriloiy of India as may be required in the public interest. Article 303 prohibits any preference or discrimination between one State and another. Article 304 (b) provides that notwithstanding anything contained in Article 301 or Article 303, the Legislature of a State may by law impose such reasonable restrictions on the freedom of trade, commerce and intercourse with or within that State as may be required in the public interest. provided that no Bill or amendment for the purposes of Clause (b), shall be introduced or moved in the Legislature of a State without the previous sanction of the President. Article 255 (c) which appears in Part XI of the Constitution provides that no Act of Parliament or of a Legislature of a State and no provision in any such Act shall be invalid by reason only that some recommendation or previous sanction required by the Constitution was not given, if assent to that Act was given by the President. It is not disputed that if the assent of the President is required in respect of the said Act, it could be obtained even now.

(3.) The argument of Mr. Chowdhury is briefly as follows : He argues that his clients the petitioners, carry on trade and commerce within the area known as "Saudagarpatty" in Calcutta :in the purchase and sale of cattle as also in the sale of mitk. According to him the said Act and the Rules made thereunder have restricted the petitioners' freedom of trade, commerce and intercourse guaranteed under Article 201 of the Constitution. He points out that it may well be argued that the restrictions are reasonable restrictions, but in that case under Article 304 (b) such reasonable restrictions could be imposed by the State Legislature, provided that before introducing the Bill in the State Legislature the previous sanction of the President had been obtained. He points out that such assent could be obtained even now under Article 255 (c), but no such previous sanction was obtained to the Bill nor subsequent assent of the President has been obtained. Hence, the Act and the rules framed thereunder are in violation of the constitutional guarantee embodied in Article 301 and as such are void, and are not saved by Article 255 (c). Both sides have drawn my attention to two decisions of the Supreme Court which will now have to be considered. The first case to be considered is Atiabari Tea Co. Ltd. v. State of Assam. The facts in that case were as follows : The appellants were growers of tea in West Bengal or in Assam and carried their tea to the market in Calcutta from where it was sold for consumption in the country or exported for sale out of the country. The bulk of tea produced and manufactured was carried out of Assam either for internal consumption in India or for export abroad. Besides the tea carried by rail, a large quantity of tea was carried by road or by inland waterways from Assam to Bengal and in some cases from one part of West Bengal to another part of the same State through inland waterways, only a few miles of which passed through the territory of Assam. The Assam Legislature passed an Act known as the "Assam Taxation (on Goods earned by Roads or Inland waterways) Act (Assam Act XIII of 1954) which came into force on 1st June, 1954. The purpose of the Act was to levy taxes on certain goods carried by road or inland waterways in the State of Assam. The appellants challenged the validity of the Act, urging that it violated the provisions of Article 301 of the Constitution. It was held by the majority judgment delivered by Gajendragadkar J., (as he then was) that the Act violated the provisions of Article 301 and since it did not comply with the provisions of Article 304 (b) it was ultra vires and void. By a dissenting judgment, Sinha C.J. (as he then wag) held that the Act did not contravene Article 301, because the Act was a taxation statute simpliciter and freedom conferred by Article 301 did not mean freedom from taxation laws simpliciter but only from the erection of trade barriers, tariff walls and imposts which had a deleterious effect on the free flow of trade, commerce and intercourse. The impugned Act had been passed by the Assam Legislature in order to provide for the levy of a tax on certain goods carried by road or inland waterways in the State of Assam. The principal ground on which the vires of the Act was challenged was that it had violated the provisions of Article 301 of the Constitution, and since it did not comply with the provisions of Article 304 (b) namely, that the assent of the President had not been obtain-ed, it was ultra vires and void. On behalf of the respondents it was argued that taxing laws stand by themselves and are governed by the provisions contained in Part XII of the Constitution and no provision of Part XIII can be extended to them. Alternatively, that the provisions of Part XIII should be applied only to such legislative entries in the 7th Schedule which deal with trade, commerce and intercourse, Gajendragadkar J., (as he then was) recalled the political and constitutional background in which Part XIII of the Constitution was enacted. He re-called that during the British rule, part of India was governed by Indian princes, some of whom purported to exercise legislative powers of imposing taxes in respect of trade, commerce, etc., so that in effect customs barriers were erected at several places in India. It was principally to combat this state of affairs that section 297 of the Government of India Act, 1935 and Part XIII of the Constitution were enacted. The learned Judge said as follows :