No 65 of 1959
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
B D Sharma for the petitioners
H N Sanyal Additional Solicitor General of India B Ganapathy Iyer and P M Sen for the respondents
April 10
The Judgment of the Court was delivered by DAS GUPTA J
This application under article 32 of the Constitution is for the protection of fundamental rights under article 191f and g article 31 and article 14 of the Constitution
The second and the third applicants are merchants who used to import considerable quantities of glass chatons upto 1957
The first applicant is an Association of merchants some of whom were importers and some the actual users of glass chatons
Import of glass chatons which form an important part of the raw materials for the manufacture of glass bangles and other similar articles of wear could be made only on licences granted by licensing authorities
Since 1955 the matter has been regu lated by the Imports Control Order 1955
This Order which was made by the Central Government in exercise of powers conferred by sections 3 and 4 A of the Import and Export Control Act 1947 prohibited the import of a large number of goods including inter alia glass chatons except under and in accordance with a licence granted on application by the licensing 864 authorities under the Act
Policy statements are made from time to time by the Government of India indicating the policy for the issue of Import licences
The policy as regards the import of glass chatons for the period January 1957 to the end of March 1958 was that the import was totally prohibited  Since April 1958 the policy as laid down is that import was permitted only under the Export Promotion Scheme
It appears that in  view of this policy statement no application was made at all by the second or third applicants or other merchants for the import of glass chatons in 1957 or thereafter and no licence was issued to them
Licences were however issued in favour of the State Trading Corporation for the import of glass chatons of the value of five lakhs of Rupees for the period April September 1958and again for the import of these goods of the value of Rs 125000 for the period October 1958 to March 1959
The present application was made on April 27 1959
The prayer is that respondents 1 and 2 ie
 the Union of India and the Chief Controller Imports should be directed i to forbear from giving the State Trading Corporation any preference over the petitioners in the grant of permits ii not to create a monopoly in favour of the State Trading Corporation iii to cancel the import permits already granted in favour of respondent No 3 the State Trading Corporation and the petitioners also prayed that the
respondent No 3 should be directed not to import on the basis of import licences already granted
It has to be mentioned at once that the periods of the import permit already granted as referred to in the petition has already expired and consequently the last two prayers mentioned above cannot possibly be granted
There was no application at all by the second and the third applicants or any of the merchants who form the association the 1st appellant for the issue of any import licences there can be no question therefore of respondents 1 and 2 being given any preference over the petitioners in the grant of permits Nor is there as far as can be made out any scheme to issue fresh licences in favour of the 865 State Trading Corporation so that apart from what has already happened there is no question of any future action to create a monopoly in favour of the State Trading Corporation
Therefore the petitioners cannot be given any relief on the present application
Learned Counsel however submitted that so long as Para 6h of the Imports Control Order 1955 remains it will be useless for his clients to make any application for licences
6 lays down a number of grounds on which the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any other licensing authority not to grant a licence
The ground mentioned in the clause h is if the licensing authority decide to canalise imports and the distribution thereof through special or specialised agencies or channels
Learned Counsel has argued that this provision in clause h of Para
6 is void being in contravention of article 191f and g and article 31 of the Constitution
He also urged that to the extent section 3 of the Imports and Exports Control Act 1947 permits the Central Government to make an order as in Para
6h section 3 itself is bad
In view of these submissions the learned Counsel was permitted to urge his contentions against the validity of Para
6h of the Imports Control Order 1955 and also his limited attack against the validity of section 3 of the Imports and Exports Control Act 1947
The requirement as regards any goods that they cannot be imported except and in accordance with a licence is undoubtedly a restriction on the right to carry on trade in such goods and also on the right to acquire property
Learned Counsel does not however contend that by itself this requirement of section 3 of the Imports and Exports Control Act is an unreasonable restriction
His attack is only against the further restriction which follows from the provisions in section 6h of the Order that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licences if the licensing authority decides to canalise imports and the distribution thereof 866 through special or specialised agencies or channels
The argument is that the further restriction
on the right to carry on trade and the right to acquire property that results from this provision is totally unreasonable
It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision
If therefore a canalization of imports is in the interests of the general public the refusal of imports licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the general public
The real question therefore is Is the canalization through special or specialized agencies or channels in the interests of the general public
A policy as regards imports forms an integral part of the general economic policy of a country which is to have due regard not only to its impact on the internal or international trade of the country but also on monetary policy the development of agriculture and industries and even on the political policies of the country involving questions of friendship neutrality or hostility with other countries It may be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is on a consideration of all the various factors involved in the general interests of the public
Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels is in the general interests of the public
In this state of things the burden on the person challenging that the government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its import should be by a selected
867 channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary
is clearly shown
Consequently we are unable to accept the argument that a decision that imports shall be canalised is per se not a reasonable restriction in the interests of the general public
We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be Challenged on the ground that it infringes article 14 of the Constitution or some other fundamental rights
No such question has how
ever been raised in the present case
The attack on the validity of Para 6h of the Imports Control Order 1955 therefore fails
The contention that section 3 of the Imports and Exports Control Act 1947 is bad to the extent that it permits the government to make an order as in Para
6h of the Imports Control Order 1955 consequently also fails
The attack on this provision in Para 6h of the order that it contravenes article 31 is not even plausible
Assuming for the purpose of this case that the right to carry on trade is itself property it is obvious that there is no question here of the acquisition of that right
What happens if a licence is refused to an applicant under Para
6h is that the applicant can no longer carry on trade in these goods
When licence is granted to the agencies or channels through which imports have been decided to be canalised these agencies or channels can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had
Article 31 of the Constitution has therefore no application
It was next urged that the grant of licences to the third respondent the State Trading Corporation of India while none has been granted to the second and the third petitioners has resulted in a denial of equal protection of laws guaranteed by article 14 of the Constitution
If these petitioners had applied for licences 868 trader the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds
It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder
There is to scope therefore for the argument that they have en discriminated against
In the result we are of opinion that the petitioners are not entitled Iwo any relief under article 32 of the Con stitution
The petition is accordingly dismissed with costs
Petition dismissed


Summary:
The appellants were importers and users of glass chatons the import of which was prohibited except under a licence granted by the licensing authorities under the Import and Export Control Act 1947 and the Imports Control Order 1955
The import was totally prohibited for some time but afterwards it was permitted under the Export Promotion Scheme and licence was issued in favour of the State Trading Corporation
The appellants who made no application for licence contended inter alia that the provisions of para
6h of the Imports Control Order 1955 that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licence if the licensing authority decided to canalise imports and the distribution thereof through special or specialised agencies or channels are unreasonable restrictions on the right to carry on trade 863 and to acquire property and as such contravene articles 14 191 f  g and 31 of the Constitution
Held that the decision that import of a particular commodity shall be canalised by a selected channel or through selected agencies is a reasonable restriction in the interest of the general public
The provisions of para
6h of the Imports Control Order 1955 and section 3 of the Imports and Exports Control Act 1947 are valid and do not contravene articles 14 191f and g
Nor do they contravene article 31 of the Constitution as no question of acquisition of any right arises by the refusal of a licence