NARENDRA KUMAR AND OTHERS versus THE UNION OF INDIA AND OTHERS

Citation: [1960] 2 S.C.R. 375 · Decided: 03-12-1959 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Case Partly allowed

Cited by 21 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

'" 
S.C.R. 
SUPREME COURT REPORTS 
NARENDRA KUMAR AND OTHERS 
I 
v. 
l'HE UNION OF INDIA AND OTHERS 
(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR, 
K. N. WANCHOO and K. C. DAS GUPTA, JJ.) 
375 
Fundamental Rights,...-Restrictions on such rights-Restriction, 
if includes prohibition-Provision ·of law. placing total restraint on 
the exercise of fundatrtental rights-Constitutionality-Trade in 
imported copper-,-Law providing for fixation of price and issue of 
permits, resulting in elimination of dealers from such trade-Validity 
-Essential Commodities Act, I955 (Io of I955). s. 3-Non-ferrous 
Metal Control Order, I958, els. 3, 4-Constitution of India, Arts. I4, 
Tg(I)(j), I9(I)(g), I9(5), I9(6). 
. . ()n ?ifferent dates ·prior to _April 3, 1958;. th~ petitioner~ 
entered mto contracts of purchase of copper with importers at 
Bombay and Calcutta, but before they could' take delivery from 
the importers the Government of India, in exercise of its powers 
under s. 3 of the Essential Commodities Act, 1955; issued on 
_April 2, 1958, the Non-ferrous Metal Control Order, 1958. Clause 
3 of the Order provided that no person shall sell or purchase any 
non-ferrous metal at a price which exceeded the amount represent-
ed by an addition of 3!% to its landed cost, while under cl. 4 no 
person shall acquire any non-ferrous metal except under and in 
accordance with a permit issued in this behalf by the Controller 
in accordance with such principles as the Central Government 
may from time to time specify. No such principles, however, 
were published in the Gazette or laid before the two Houses of 
Parliament, though certain principles governing the issue of 
permits by the Controller were specified in a communication 
addressed by the Deputy Secretary to the Government of India 
dated April 18, 1958, to the Chief Industrial Adviser, by virtue of 
which the Controller could issue permits only to certain manufac-
tures and not to any dealer. On April 14, 1958, the petitioners 
applied for permits to enable them to take delivery of the copper 
in respect of which they had entered into contracts, but• the 
applications were refused. Thereupon, the petitioners filed a 
petition und~r Art. 32 of the Constitution of India challenging 
the validity of the order refusing the grant of the permit and 
contended, inter alia, (1) that the fixation of the price under cl. 3 
of the Non-ferrous Metal Control Order, 1958, which had the 
effect of driving the dealer out of business in imported copper 
and likewise, cl. 4 of the said Order read with the communication 
dated April 18, 1958, which had the effect of completely eliminat0 
ing the dealers from the trade in imported copper, contravened 
Arts. l9(1)(f) and l9(1)(g) of the Constitution, and that such total 
eUmination of the dealer amounting as it will to prohibition of 
any exercise of the right to carry on trade or to acquire property 
I959 
December 3 
376 
SUPREME COtJR'r REPORTS [1960(2)] 
x959 
was not a mere restriction on the rights and was outside the 
saving provisions of els. (5). and (6) of Art. 19, (2) that the 
Narendra Kumar principles specified in the communication dated April 18, '1958, 
and Others 
being discriminatory in nature as between the manufacturers and 
.v. 
. dealers in copper, infringed Art. 14, (3) that the said principles, 
The Union af India in any case, had no legal force, as they were not mentioned in 
and Others 
the Non-ferrous Metal Control Order, nor were they notified in 
the Official Gazette and laid before both Houses of Parliament 
Das Gupta J. 
in the manner laid down in sub-ss. (5) and (6) of s. 3 of the 
Essential Commodities Act. It was f,aund that the result of the 
abuse by the importers nf the practical monopoly given to them 
of the copper market seriously affected the interests of the 
general public in India, and that to protect these interests of the 
public the impugned legislation in the form of Non-ferrous Metal 
Control Order and the subsequent specification of principles was 
made. 
Held: (1) that the word "restriction" in Arts. 19(5) ·and 
19(6) of the Constitution includes cases of "prohibition" also; 
that where a restriction reaches the stage of total restraint of 
rights special care has to be taken by the Court to see that the 
test of reasonableness is satisfied by considering the question in 
the background of the facts and circums1ances under which the 
order was made, taking into account the nature of the evil that 
was sou

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