LexDISTRICT COLLECTOR OF HYDERABAD & ORS. versus M/S. IBRAHIM & CO. ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
49.8
DISTRICT COLLECTOR OF HYDERABAD & ORS.
v.
MIS. IBRAHIM & CO. ETC.
February 5, 1970
{M. HIDAYATULLAH, C.J., J.C. SHAH, K. S. HEGDE, A. N. GROVER,
A. N. RAY AND l. D. DUA, JJ.]
Constitution oj India, Arts. 301, 304, 305, 358 and 359--Freedom of
Jr(.de under Art. 301 if guaranteed to indiPiduals-lf could be tnken away
by executive action.
A
B
Protection und1~r Arts. 358 and 359 to orders passed by Gorenanent-
C
Scope of.
The Central Government promulgated the Sugar Control Order, 1963,
under r. U5(2) o'f the Defence of India Rules, 1962. The -respondents,
who were holders of licences under the Andhra Pradesh Sugar Dealers
Licensing Order, 1963, (issued under the Essential
Commodities
Act,
195S) and who were dealers in sugar in the cities of Hyderabad and
Secunderabad. were 'recognised dealers' under the Sugar Control Order.
D
They were allocated quotas of sugar, but, in 1964, the State Government
or:dered that the sugar allocated to the two cities be given in its entirety to
a Cooperative Stores. The respondents were thus prevented by an executit-·e
order from carrying on their business. They chaJienged the order success~
fully in the High Court.
In appeal to this Court on the questions : ( 1) whether the order was
protected under Arts. 358 and 359, because the President had declared a
E
state of emergency; and (2) whether the order was violative of Art. 301,
HELD: (l)(a) Under Art. 358 the respondents could not challenge
any executive action which, but for provisions contained in Art. 19, the
State was competent to take. But in the present case, the executive order
was not one which the State was competent to make. Since the order of
the State Government has the effect elf canceIIing the licences of the res-
pondent, which cou:Id be done only after an enquiry according to the pro-
cedure prescribed in the Andhra Pradesh Sugar Dealers Licensing Order.
the executive order was contrary to the statutory provisions contained in
the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control
Order. Such executive action of the State, which is otherwise invalid, is
not immune from attack under Art. 358, merely hecause a proclamation
of emerg1211cy was in operation. [502 A-DJ
(a) In the present case, there was discrimination agaiilst the respon-
dents in that the impugned order conferred -a monopoly on the Coopera-
tive Stan s in disregard of the subsisting right of the respondents.
The
order is not protected under Art. 359, because, only tf it was ~hov.·n It'
have been made under the authority reserved by the Defence o'f India
Ordinance or the Rules made thereunder,
that the jurisdiction of the
court to entertain a petition for infringement of the guarantee under Art.
14 is excluded. [502 E-G]
12\ The impugned order trenches
U,,"<>n the freedom of trade and
commerce guaranteed by Art. 301.
F
G
H
-
OOLLECTOB. V. IBRAHIM & 00, (Shah, J,)
499
A
By this Article the freedom of trade, commerce and intercourse
throughout the territory df India i_s declared free.
Under it, a. re~triction
upon the legislative power of Parliament and State Legislature IS imposed
by the Constitution.
The guarantee of the freedom is not in the abstract
but to individuals. Within the limits of Arts. 304 and 305 there could
be legislative restrictions upon the individuals' right to freedom of trade,
but not, by executive action. [503 D-F; 504 D-EJ
B
Commonwealt/l of Australia v. Bank of New South Wales, LR. [1950]
A.C. 235, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1285
to 1309 of 1966.
Appeals by special leave from the judgment and order dated
C
June 23, 1965 of the Andhra Pradesh High Court in Writ Appeals
Nos. 34 to 58 of 1965.
P. Ram Reddy and A. V. Rangam, for the appellants (in all
the appeals).
K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respon-
D
dent (in C.A. No. 1304 of 1966).
F
G
H
The Judgment of the Court was delivered by
Shah, J.
These appeals are filed with special leave against
the order of the High Court o;( Andhra Pradesh declaring G.O.M.
No. 2976 dated December 30. 1964 "null, void and ultra vires ...
The respondents are dealers in sugar and other commodities
and carry on their business in the cities o.f Hyderabad and Secun-
derabad.
The State of Andhra Pradesh issued the Andhra Pradesh
Sugar Dealers Licensing Order, 1963, in exercise of the power
conferred bys. 3 of the Essential Commodities Act, 1955. UndExcerpt shown. Read the full judgment & AI analysis in Lexace.