ins Matters
A Movement by Road a WP
Nos2907 29083234 3238 3931643254 3630 313686 3783 3816 4816 4929 31 4836 38 4996 5001 5051 54 5089 93 5136 46 5247 3160 3634 449446164967 5362 71 5416 20 5447 505716 17 584060156587 89  6609 1481
b WP
50625157 585451  5615 1781
c WP Nos
50975042 5098 5017 5214  6135 3681  700381
d WP Nos3421 3407 3408 13 3422 3536 3561 64 523813824 5466 5544 6009 6130 31 6572 74  6582 8381
e WP
4904 4905 5080 5094 5239 45 5358 59 5395 5483 5484 88 5489 92 5734 39 6584 86  6817 2181
f WP
Nos4960 62 4958 59 5129 33 5219 20 5331 33 5518 19 5526 5428 31  552781
g WP
4526 4926 4995 5046 5048 50 5100 5101 5136 465402 11 5436 38 5560 5520 21 55625558 5556 555955505546 47 5552 5555 5553 545511 5482 5618 195809 206132 33 6244 6273 756267 72 5512 14 55156570 and 556281 7027 29 and 7032 3481
h WP
Nos52215380 835129 335421 225440 5507 10 5662 5806 5807 6245 6246 6265 6398 and 668481
1145 i WP
3592 3353 5396 6016 6247 48 6616 6668 and 679881
j WP
Nos5003 4453 4455 565346 4849555082 89 5577 80 5581 and 572481
k WP
Nos3489 and 429382
l WP
No 481881
m WP
Nos291629323242 3297 33023334 43 3475 4098 4100 4136 4304 4187 4777 5007 175027 34 5352 55 5473 79 5604 5608 5740 42 5743 44 5821 6012 13 and 5583 9281
n WP Nos
5391 and 552581
o WP No 544381
p WP
Nos 54445663 and 626681
q WP
No 546481
r WP
5451 and 5564 6681
s WP
No 580781
t WP
Nos5571 75 5622 29 and 601481
u WP
Nos5718 1981 and 694381
v WP
No 5568 6981
B Restriction on Quantum of Food Grains which can be held a WP
2932 3776 3780 4140 45 4326 28 4876 4902 4670 78 and 5473 7981
b WP
No 548081
c WP
4955 56533053923823 and 627881
d WP
Nos 5529 3081
e WP
Nos5531 3281
1146 f WP
5841 5081
g WP
5656 5881
Under Article 32 of the Constitution of India Hari Sarup MN Phadke Soli J Sorabjee JP Goyal and CM Lodha Ms B Datta RA Gupta Miss Kamini Jaiswal Rajiv Dutta Manoj Swarup and Miss Lalita Kohli RS Sharma RK Jain Pankaj Jain PK Jain KK Jain KB Rohatgi BR Kapur BS Tawakley SR Srivastava NN Sharma AK Goel Mitter and Mitter and Co SK Jain Rajesh Jain Mukul Mudgal M Qamaruddin Mrs M Qamaruddin Anis Suhrawardhy AP Mohanty KK Gupta Ravi Prakash Gupta CK Ratnaparkhi SC Birla MC Dhingra and SK Gambhir for the appearing Petitioners
GN Dikshit OP Rana Mrs Shobha Dixit RN Poddar G Gopalakrishan AV Rangam BD Sharma DP Mohanty and A Shroff for the Respondents
The Judgment of the Court was delivered by SEN J
The issue in this and the connected 505 petitions under article 32 of the Constitution is of far reaching significance
It raises questions of the highest importance as to the scope and extent of the executive power of the State under article 162 of the Constitution in relation to regulation and control of trade and commerce in food stuffs
It necessarily involves a claim by the petitioners who are wholesale dealers of foodgrains that the exercise of such governmental power conflicts with the rule of law and is in flagrant violation of the freedom of trade commerce and intercourse guaranteed under article 301 of the Constitution and the fundamental right to carry on trade and business guaranteed under article 19 1 g of the Constitution
These petitions fall into two distinct and separate categories one by the wholesale dealers of foodgrains from the Union Territory of Delhi and the neighbouring States of Punjab and Haryana and the other by the wholesale dealers of foodgrains from the State of Uttar Pradesh
1147 The short question that falls for consideration in some of the writ petitions by wholesale dealers of foodgrains from the Union Territory of Delhi and the State of Punjab and Haryana is whether the action of the State Government of Uttar Pradesh in setting up check posts on its borders and the stoppage and seizure of wheat in transit through the State of Uttar Pradesh during the course of inter State trade and commerce to various destinations in the States of Madhya Pradesh and Maharashtra at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on the strength of its instructions conveyed by its teleprinter message dated March 31 1981 was in violation of article 301 of the Constitution
In a majority of the writ petitions by wholesale dealers from the State of Uttar Pradesh two questions arise 1 whether Notification No P XXIX Food 5 5 4280 dated April 21 1981 issued by the State Government of Uttar Pradesh in exercise of the powers conferred by section 3 read with section 5 of the hereinafter referred to as the Act by which cl4 of the Uttar Pradesh Foodgrains Procurement and Regulation of Trade Order 1978 has been amended providing that no wholesale dealer commission agent or retailer shall have in stock wheat more than 250 quintals 250 quintals and 20 quintals respectively at any time Infringes the fundamental right to carry on trade or business guaranteed under article 19 1 g and 2 whether the governmental instructions conveyed by its teleprinter message dated March 31 1981 placing restrictions on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State were in breach of the fundamental right under article 19 1 g read with article 301 of the Constitution
The following are the facts and circumstances so far as necessary to show as to how the legal questions are presented
It would be convenient first to deal with the writ petitions filed by the whole sale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana seeking a declaration that the impugned action of the State Government of Uttar Pradesh in setting up check posts on the borders of the State and directing seizure of wheat in transit through the State on the strength of the impugned teleprinter message conflicted with the guarantees of inter State trade and commerce dealt with by Art 301 of the Constitution
1148 Facts in all these cases are more or less similar
The petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana allege that between April 29 30 1981 they acting as commission agents purchased wheat from the open market in Delhi and elsewhere and despatched the same by trucks to various destinations in the State of Maharashtra and to some places in the State of Madhya Pradesh
According to them the trucks laden with wheat were accompanied by relative bills goods receipts inter State transit passes etc
 duly crossed the check post at Faridabad and were also allowed to cross the check post at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh and were on their way to their respective destinations
They allege that the Senior Marketing Inspector Agra intercepted the trucks in question at the check post at Saiyan on the border between the State of Uttar Pradesh and Madhya Pradesh between April 30 1981 and May 2 1981
The seized trucks were brought back to the purchase point at Agra and the wheat was unloaded
Thereupon the petitioners rushed to Agra and made an application on May 4 1981 under s6A read with sections 3 and 7 of the Act before the Additional District Magistrate Civil Supplies Agra for the release of the seized wheat
In the said application the petitioners inter alia claimed and unequivocally stated that there was no ban on export of wheat from the Union Territory of Delhi to other States that the wheat in question was neither purchased at Agra nor was it being transported from Agra to any other district in Uttar Pradesh that Agra was a place in transit and that the instructions of the State Government contained in the impugned teleprinter message dated March 31 1981 did not constitute a validly notified order under sub section
5 of section 3 of the Act
The Chief Marketing Inspector Agra had in the meanwhile seized 42 trucks laden with wheat either at the check post at Saiyan or at Agra and lodged first information reports at the Saiyan police station or at the Civil Lines police station in respect of the consignments alleging that the movement of wheat was in contravention of the impugned teleprinter message and was therefore seized and in three of them it was alleged that the wheat had been purchased at Agra
On the report of the Chief Marketing Inspector the Additional District Magistrate Civil Supplies Agra drew up proceedings under section 6A of the Act and directed the police to complete the investigation within 15 days
1149 On May 23 1981 the Additional District Magistrate Civil Supplies Agra under sub section
2i of section 6A of the Act passed interim orders for the sale of the seized wheat as it was subject to speedy and natural decay at the request of the Senior Marketing Inspector similar to the one reproduced below These proceedings under s6A of the started on the report of SMI Saiyan dated 3041981 Paper No 1 whereby it was brought to the notice of this Court that truck nos  were caught carrying 120 quintals of wheat respectively beyond Saiyan border outside the State in contravention of the orders issued by the Government vide telex No 106129 Food 5 dated 3131981 FIR was lodged at PS Saiyan in respect of the above contravention
Notice under section 6B of the EC Act was issued to the OPs  who were driving the trucks at the time of search and seizure
Replies were filed by the owners of the wheat contending that the said rules were not part of any Control Order under Section 3 of the EC Act nor they had any legal sanction for want of publication in the Official Gazette
The OPs
have pleaded that they were taking their goods in transit through Agra and in fact the movement of wheat so made by them was inter state movement which was not banned by the Central Government or State Government
I heard the learned counsels on behalf of the OPs
and the learned PO as well
In these proceedings final orders cannot be passed at this stage as the matter is still under investigation
PO directed to put up progress of investigation within 15 days from now
In the meanwhile I order that the wheat seized by SMI Saiyan be got purchased at the Official Price so that the same does not get damaged
The sale proceeds be got deposited in Government Treasury under proper Head of Account
1150 This interim order is being passed under sub section
2 i of s6A of the 
File be put up after 15 days along with report of prosecuting office regarding progress of investigation
Sd NN Varma Addl
Collector Agra 2351981 The seized wheat has been purchased by the State Government on Government account at the procurement price and the sale proceeds credited into the Treasury
The State Government has filed a counter affidavit of the Chief Marketing Officer Lucknow in all these cases as also the affidavits of the Senior Marketing Inspectors at Agra controverting the allegations made by the petitioners
It is stated that the source of the power to effect the seizure was not the impugned teleprinter message but the power of search and seizure conferred on an Enforcement Officer under cl 6 of the UP Foodgrains Dealers Licensing and Restriction on Hoarding Order 1976 and under cl6 of the Uttar Pradesh Foodgrains Procurement and Regulation of Trade Order 1978 hereinafter called the 1976 Order and 1978 Order respectively both of which were issued by the State Government in exercise of the powers under section 3 of the Act read with Government of India Ministry of Agriculture Department of Food Notification No G SR 888 dated June 28 1961 No GSR 316 E dated June 20 1972 No GSR 452 E dated October 25 1972 No GSR 168 E dated March 13 1973 and No GSR 800 dated June 9 1978 respectively since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices
The State Government contends that the impugned teleprinter message dated March 31 1981 was in the nature of an executive instruction issued by the State Government under its undoubted powers under article 162 of the Constitution for the due observance of the provisions of the two Control Orders
It is said that no person can carry on business in foodgrains as a dealer or as a commission agent except under and in accordance with the terms and conditions of a valid licence issued in that behalf under cl 4 of the 1976 Order
It is also said that no wholesale dealer commission agent or trader can have in stock more than 250 quintals 250 quintals and 20 quintals respectively at any time
It is asserted that the State Govern 1151 ment has the right to set up check posts for the purpose of verification so that there is no contravention of the provisions of the two Control Orders particularly with a view to ensure that excess quantity of wheat is not transported in violation of the 1978 Order to other districts or other States
The State Government in the counter affidavit of the Chief Marketing Officer Lucknow specifically denies the allegations made by the petitioners that the 42 trucks laden with wheat seized at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra were in transit during the course of inter State trade and commerce
With regard to the seizure of the wheat it is averred in para 13 of the counter affidavit The correct fact is that the authority on the bona fide apprehension that the wheat so moved actually was purchased from the State of Uttar Pradesh from nearby places and the same was being moved to other States on the garb of outside wheat
It is submitted that such traders who are exporting wheat alleged to have purchased from places other than the State of Uttar Pradesh and wereare carrying the same to other States have only to satisfy the authorities concerned of the bona fides of such transactions
However there is no ban on such movement from one State to another
 As regards the check posts it is submitted that the State Government is committed to provide price support in wheat to farmers at Rs 130 per quintal
This commitment also involves purchase of wheat directly from the farmers without interference from tradersmiddlemen who try to purchase wheat from the farmers at lower prices and sell the same at Government purchase centres with substantial profits
Such transactions are effected in fictitious names
This not only frustrates the procurement policy of the Government but also prejudicially and financially affects the producers  interests
In para 5 it is accordingly averred In order to curb the above tendencies and preventing the activity of tradersmiddlemen the State Government have provided a simple system of verifying all transactions by traders
1152 This procedure involves getting all transactions of wheat verified by the Deputy Regional Marketing Officer indicating inter alia the name of the persons to whom the stocks are sold their licence numbers etc
and quantum of stocks sold price paid etc
This process will make it simultaneously very difficult for traders to buy at low price from farmers and resell at high prices at the Government purchase centres
 As regards the impugned teleprinter message it was stated that it was issued by the State Government in order to sustain and maintain and maximise the procurement of wheat by introducing a system of verification at the check posts
The State Government contests the right of the petitioners falling in the first category that is wholesale dealers of wheat from the Union Territory of Delhi and the States of Punjab and Haryana to relief under article 32 of the Constitution who question the legality and propriety of the seizures
It is a matter for investigation which is pending before the Additional District Magistrate Civil Supplies Agra and according to it the question cannot be decided without full investigation into facts
In support of the writ petitions learned counsel appearing for the petitioners have in substance urged three grounds
1 There was nothing to prevent the State Government from making a law placing reasonable restriction on the freedom to carry on any occupation trade or business guaranteed under article 191 g read with article 196 of the Constitution or on the freedom of trade commerce and intercourse throughout the territory of India guaranteed under article 301 of the Constitution but the restriction must be by law or by an order having the force of law and not by recourse to the executive authority of the State under article 162 of the Constitution ie by an executive action
2 The seizure of the consignments of the wheat while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh was without the authority of law and in violation of article 300A of the Constitution
The seizure of the wheat being wrongful the petitioners were entitled to an appropriate writ direction or order for the return of the seized wheat or the price thereof
3 The impugned teleprinter message of the State Government dated March 31 1981 on the basis of which the seizures were effected in truth and 1153 substance had no legal sanction and cannot be construed to be a notified order within the meaning of sub section
1 read with sub section
5 of section 3 of the Act it was nothing but an executive direction
No executive action which operates to the prejudice of a citizen can be taken without the authority of law
It was asserted that the seizures effected were in compliance of the instructions contained in the impugned teleprinter message and not for breach of the two Control Orders and therefore it was nothing but a colourable exercise of power
The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government without any legal sanction since the farmers were not willing to sell their wheat at the procurement price
Learned counsel for the petitioners also challenge the action of the Additional District Magistrate Civil Supplies Agra in passing an interim order in terms of sub section 2 i of section 6A of the Act for the sale of the seized wheat on Government account and for the sale proceeds to be credited into the treasury in an appropriate Head of Account it is urged that under sub section
2 ii of section 6A of the Act there being no control price for wheat the wheat should have been sold by public auction
In reply learned counsel for the State has repelled all these contentions
It is submitted that the source of power to effect the seizure was not the impugned teleprinter message but the two Control Orders issued under section 3 of the Act
He asserted that the wheat in question was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various other States
The wheat had in fact been purchased at Agra and was being lifted from the State of Uttar Pradesh and had therefore to be seized at the check post at Saiyan and at Agra
He points out that under cl 3 of the 1976 Order no person can carry on business as a dealer or commission agent except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority
According to him the seized wheat had been purchased at Agra in the course of trade and they were not isolated transactions and therefore the Delhi traders committed contravention of cl 3 of the 1976 Order
It is also pointed out that cl 4 of the 1978 Order as amended provides that no person who is a wholesale dealer commission agent or retailer shall have in stock wheat in quantities exceeding 250 quintals 250 quintals and 20 quintals at a time
It is further pointed out cl 14 of the 1976 Order and cl 6 1154 of the 1978 Order confer the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the Government in that behalf and the expression enforcement officer defined in cl 2 e of the former Order and cl 2d of the latter includes the Chief Marketing Inspector
According to the learned counsel the Government instructions conveyed in the impugned teleprinter message is merely in the nature of an executive instruction for the enforcement of the two Control Orders
In support of the contentions he also relies on the executive power of the State under article 162 of the Constitution
In the premises the contention on behalf of the State is that the question whether the seized wheat was liable to be confiscated or not under section 6A of the Act was a matter pending adjudication before the Additional District Magistrate Civil Supplies Agra
That depends on whether or not there was contravention by the petitioners of any of the Order issued under section 3 of the Act and therefore cannot be determined without full investigation into the facts
The Inter Zonal Wheat Movement Control Order 1976 issued by the Central Government in exercise of the powers conferred by section 3 of the Act has been rescinded with effect from April 13 1977
The result of this is that the whole country constitutes a single zone for free movement of wheat except in such States where an order is issued under section 3 read with section 5 of the Act placing a ban on export of wheat such as in the State of Rajasthan
Admittedly the State Government of Uttar Pradesh has not issued any order under section 3 read with section 5 of the Act placing a ban on export of wheat from the State or any restriction on inter district movement of wheat within the State
The State Government does not contest this position and indeed the Chief Marketing Officer in his counter affidavit states The State of Uttar Pradesh has not banned the movement of wheat outside the State or from one district to another district within the State
It is submitted that such traders who are transporting wheat alleged to be purchased from a place other than the State of Uttar Pradesh and wereare carrying the same to other States other than Uttar Pradesh have only to satisfy the authorities concerned of the bona fides of the transactions
However there is no ban on such movement from one State to another 1155 The impugned teleprinter message dated March 31 1981 runs as follows For Regional Food Control AgraBareillyDehradunFaizabadGorakhpur JhansiHaldwaniKanpurMeerutVaranasi Lucknow by Hand From Secretary Food Lucknow
No TP 1061XXIX Food 5 Dated Lucknow March 31 1981
Refer Tel TP 712XXIX Food 5 5181 of 9th March 1981 regarding renewal of and issue of new licences to dealers Government committed to provide benefits of support price to producers hence to ensure that maximum quantity of wheat is purchased by agencies  Para  After careful consideration Government have decided that with effect from first April 1981 till thirtieth June 1981 no repeat no fresh licences are to be issued to any person who wish to deal in wheat wheat products or both as wholesaler commission agent retailer  Para  Government have also decided that during April 1981 to June 1981 movement of wheat by traders on private account to outside district shall be regulated only on the endorsement of Deputy Regional Marketing Officer concerned and hitherto this power being exercised by Senior Marketing Inspector shall not repeat not be used by them  Para  At the same time easy availability of wheat in open markets is to be ensured Keeping all the relevant factors in view endorsement by Dy
RMO should be made judiciously on genuine and bonafide grounds Para Dy
RMO will send daily report to RFC of the cases in which such permission is granted or endorsement made  RFC will compile and send weekly report to Government Permission to be given very sparingly and general impression made should be that they will not gain by doing any trading in wheat Visit Mandis regularly and check quantities lying in traders premises Presence of large stocks with trade means staff 1156 is not during their job properly
 Inform all concerned immediately for strict compliance Dated Lucknow March 31 1981 Sd M Subrahmanyam Secretary Food  Civil Supplies Sec
5 UP Secretariat Lucknow
 There can be no doubt that the aforesaid teleprinter message was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the orders
It may be mentioned that the State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat issued instructions that no fresh licences till June 30 1981 were to be granted to any person who wished to deal in wheat wheat products or both as well as a wholesale dealer commission agent or a retailer
It further conveyed the policy decision of the Government that during April 1981 movement of wheat by traders on private account to outside districts shall be regulated only on the endorsement of the Deputy Marketing Officer concerned and not by the Senior Marketing Inspectors as hitherto before
The Government also directed the Regional Food Controllers to ensure easy availability of wheat in open market
As regards the making of endorsement they were advised that the powers should be exercised with due circumspection
They were also asked to visit the mandis and keep a constant vigil on the stocks lying with the traders
There appears to be nothing unusual on the State Government issuing such executive instructions
Even assuming that the impugned teleprinter message is not relatable to the two Control Orders the State Government undoubtedly could in exercise of the executive power of the State introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check posts on the border and place restrictions on inter district movement of wheat by traders on private account within the State
The executive power of a modern State is not capable of any precise definition
In Ram Jawaya Kapur vs State of Punjab Mukherjea CJ dealt with the scope of articles 73 and 162 of the Constitution
The learned Chief Justice observed that neither of the two Articles contains any 1157 definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope
It was observed Ordinarily the executive power con notes the residue of governmental functions that remain after legislative and judicial functions are taken away
It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution
In other words the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State
So long as the State Government does not go against the provisions of the Constitution or any law the width and amplitude of its executive power cannot be circumscribed
If there is no enactment covering a particular aspect certainly the Government can carry on the administration by issuing administrative directions or instructions until the legislature makes a law in that behalf
Otherwise the administration would come to a standstill
In Ram Jawaya Kapoor s case supra it was contended that the executive power of the State did not extend to the carrying on of trade of printing publishing and selling of text books for schools unless such trade was authorised by law
In repelling the contention Mukherjea CJ speaking for the Court observed  Our Constitution though federal in its structure is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State
The executive function comprises both of the determination of the policy as well as carrying it into execution
This evidently includes the initiation of legislation the maintenance of order the promotion of social and economic welfare the direction of foreign policy in fact the carrying on or supervision of the general administration of the State
The learned Chief Justice then went on to observe  The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights 1158 guaranteed by it to the citizens
Consequently even if the acts of the executive are deemed to be sanctioned by the legislature yet they can be declared to be void and in operative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution
On the other hand even if the acts of the executive are illegal in the sense that they are not warranted by law but no fundamental rights of the petitioners have been infringed thereby the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed
In Naraindas Indurkhya vs State of Madhya Pradesh  Ors Bhagwati J speaking for the Court reiterated the principles laid down by Mukherjea CJ in Ram Jawaya Kapur s case supra and held that the State Government could act in exercise of the executive power of the State under article 162 of the Constitution in relation to any matter with respect to which the State Legislature has power to make laws even if there was no legislation to support such executive action
There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33 List III which reads 33
Trade and commerce in and the production supply and distribution of b foodstuffs including edible oilseeds and oils
The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33 List III of the Seventh Schedule to the Constitution as amended by the Constitution Third Amendment Act 1954
The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder
The State legislature therefore could still make a law on the subject regulating trade and commerce in and the production supply and distribution of foodstuffs  and the only question that would arise is one of repugnancy dealt with in article 254 of the Constitution
The executive power of the State being co extensive with its legislative power under Entry 33 List III it relates to all matters covered by the subject foodstuffs  1159 trade and commerce in and the production supply and distribution thereof
This is of course subject to the limitation contained in Proviso to article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof
This leads us to another aspect of the problem of considerable difficulty and importance
The subject search and seizure  is a field which has not come before the court with considerable frequency but this is a hard fact of life which the citizen does encounter very often
The executive power of search and seizure  is a necessary concomitant of a welfare State
It tends to promote the well being of the nation
Many questions arising in the field of search and seizure are factual in nature
They involve varying degrees of difference among the infinitely diverse facts
Every factual variation presents not only a new problem but also a new constitutional question
It is a limitless area in which different issues may arise with vast variations of facts which are involved in each individual case
This is indeed a peculiar field in which the decisions of courts do not help in clarifying the law
The decisions in the field are of little precedental value because the more the cases that are decided the more new issues arise through possible factual variations
The check posts and barriers on the borders of the State of Uttar Pradesh are set up under section 28 of the UP Sales Tax Act 1948 and are designed and meant to prevent evasion of sales tax and other dues
The constitutional validity of section 28 and its cognate provisions sections 28A to 28C has rightly if we may say so not been challenged before us
From the point of view either of Entry 54 List II or of article 301 of the Constitution there is no question of any lack of competence in the State legislature to set up the checkposts and barriers on the State s borders
These provisions read with the requirements of r 834 of the UP Sales Tax Rules 1948 require that the owner driver or any other person in charge of the vehicle or vessel shall in respect of such goods carried in the vehicle or vessel as are notified under sub section
1 of section 28A carry with him a declaration in Form XXXI a certificate in Form XXXII a transit pass in Form XXXIV in duplicate cash memo bill of sale or challan and a trip sheet in triplicate
The factual existence of these check 1160 posts or barriers on the State s borders is not denied nor their legality challenged
It is not suggested that the setting up of these check posts is a restriction on the freedom of trade commerce and intercourse guaranteed under article 301 of the Constitution or is such as directly and immediately restricts or impedes the free flow or movement of goods
It is also not suggested that these regulatory measures in setting up the check posts on the State s borders are such as impede freedom of trade commerce and intercourse
Just as inter State trade and commerce must pay its way and be subject to taxation persons engaged in such inter State trade or commerce are equally subject to all regulatory measures
There is no reason why the check posts or barriers set up by the State Government under section 28 of the UP Sales Tax Act 1948 cannot be utilised as a machinery for due observance of the laws eg for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States
The instructions conveyed by the State Government by the impugned teleprinter message dated March 31 1981 were a direct sequel to the Centre s directives contained in its earlier teleprinter message
It was intended and meant to achieve three main objectives namely 1 to provide price support in wheat to purchasers with a view to sustain maintain and maximise the procurement of wheat 2 to prevent hoarding and blackmarketing and 3 to provide for equitable distribution and availability of wheat at fair prices
These directions were obviously meant to subserve the object of the legislation and were in public interest
These cases were argued with much learning and resource particularly with reference to the rule of law and the consequent limitations on the executive power of the State under article 162 to trench  upon the fundamental right to carry on trade or business guaranteed under article 19 1 g and the freedom of trade commerce and intercourse throughout the territory of India guaranteed under article 301 of the Constitution
It necessarily involves a claim by the State that the measures taken by the State Government by the impugned teleprinter message were nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer commission agent or a retailer is not transported to a place outside the State or from one district to another within the State and therefore were not a restriction  on the fundamental right to carry on trade or business guaranteed under article 19 1g or on the freedom of trade commerce and intercourse under article 301
1161 The quintessence of our Constitution is the rule of law
The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts
In State of Madhya Pradesh vs Thakur Bharat Singh the Court repelled the contention that by virtue of article 162 the State or its officers may in the exercise of executive authority without any legislation in support thereof infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued
It was observed Every act done by the Government or by its officers must if it is to operate to the prejudice of any person be supported by some legislative authority
 The same principle was reiterated by the Court in Satwant Singh Sawhney vs Dr Ramarathnam Assistant Passport Officer Government of India New Delhi  Ors and Smt
Indira Nehru Gandhi vs Shri Raj Narain
There can be no doubt that the  is a law  within the meaning of article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by article 191g and article 301 of the Constitution
The object of the Act is to provide in the interests of the general public for the control production supply and distribution of and trade and commerce in certain essential commodities
To appreciate the points involved it is necessary to set out the material statutory provisions
Sub section
1 of section 3 of the Act provides as follows 31
If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein
1162 Sub section
2 thereof provides that without prejudice to the generality of the powers conferred by sub section
1 an order made thereunder may provide for any of the matters enumerated therein
Sub section
5 provides that any order made under this section shall in the case of an order of a general nature or affecting a class of persons be notified in the Official Gazette
By virtue of the delegation of powers under section 5 of the Act the State Government in relation to such matters and subject to such conditions as may be specified may exercise the powers of the Central Government under section 3 Clause j of sub section
2 of 3 provides that the Central Government or the State Government as the case may be may by order provide For any incidental and supplementary matters including in particular the entry search or examination of premises aircraft vessels vehicles or other conveyance and animals and the seizure by a person authorised to make such entry search or examination  Sub sections
1 and 2 of section 6A of the Act insofar as material provide as follows 6A1
Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto a report of seizure shall without unreasonable delay be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order the Collector may if he thinks it expedient so to do direct the essential commodity so seized to be produced for inspection before him and if he is satisfied that there has been a contravention of the order may order confiscation of a the essential commodity so seized 6A2
Where the Collector on receiving a report of seizure or on inspection of any essential commodity under sub section
1 is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do be may i order the same to be sold at the controlled price if any fixed for such essential commodity under this Act or under any other law for the time being in force or 1163 ii where no such price is fixed order the same to be sold by public auction Provided that in case of foodgrains the Collector may for its equitable distribution and availability at fair prices order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government as the case may be for the retail sale of such foodgrains to the public Learned counsel for the State Government in all fairness does not assert that the impugned teleprinter message having regard to the requirements of sub section
5 has the effect of a notified Order under section 3 of the Act placing a ban on export of wheat from the State or imposing a restriction on inter district movement of wheat
It is submitted that it only conveyed the instructions of the State Government requiring the Regional Food Controllers to be more vigilant to secure due observance of the laws
The question still remain whether the instructions conveyed by the teleprinter message had the force of law
It is therefore to be considered whether the instructions conveyed by the State Government by the impugned teleprinter message were relatable to the two Control Orders and therefore could be considered to be law  or an order having the force of law placing reasonable restriction on the freedom to carry on any occupation trade or business guaranteed under article 191g read with article 196 of the Constitution or on the freedom of trade commerce and intercourse throughout the territory of India guaranteed under article 301 o the Constitution
It is further to be considered whether the seizure of wheat in transit was with authority of law
It is submitted that although the impugned teleprinter message dated March 31 1981 was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the two Control Orders it had the force of law
It is pointed out that under licence conditions Nos 11 12 and 13 of the licence issued in Form B under cl 4 of the 1976 Order a dealer is required to comply with any direction that may be given by the State Government in regard to purchase sale or storage for sale of foodgrains to furnish such information relating to his business as may be demanded of him and to carry out such instructions as may from time to time be given 1164 by the State Government or the licensing authority and to give all facilities at all reasonable times to the enforcement officer or the licencing authority or any officer authorised by him or the State Government for the inspection of the stocks etc
It is further pointed out that the State Government of Uttar Pradesh has by Notification No P XXIX Food 5 54280 dated April 21 1981 in exercise of the powers conferred by section 3 read with section 5 of the Act with the prior concurrence of the Central Government issued the Uttar Pradesh Foodgrains Procurement and Regulation of Trade First Amendment Order 1981
By cl 2 thereof a new cl 4 has been substituted in the 1978 Order by which the stock limit of dealers in foodgrains has been re fixed as it was of the opinion that it was necessary and expedient so to do for securing equitable distribution and availability of wheat at fair prices
The new cl 4 provides that no wholesale dealer commission agent or retailer shall have in stock wheat more than 250 quintals 250 quintals and 20 quintals respectively at any time
The re fixation of the stock limit of a wholesale dealers at 250 quintals at any time is to ensure that wholesale dealers in the State of Uttar Pradesh do not try to corner stocks of wheat for purposes of speculation
The submission is that the State Government without placing any restriction on movement of wheat from the State of Uttar Pradesh to various other States has virtually frozen the excess stock of wheat lying with wholesale dealers of foodgrains in the State
There is in our opinion considerable force in these submissions
The real question at issue is whether or not the seizure of wheat was with the authority of law
The fundamental right to carry on trade or business guaranteed under article 191g or the freedom of inter State trade commerce and intercourse under article 301 of the Constitution has its own limitations
The liberty of an individual to do as he pleases is not absolute
It must yield to the common good
Absolute or unrestricted individual rights do not and cannot exist in any modern State
There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all
Whenever such a conflict comes before the Court it is its duty to harmonise the exercise of the competing rights
The Court must balance the individual s rights of freedom of trade under article 191g and the freedom of inter State trade and commerce under article 301 as against the national interest
Such a limitation is inherent in the exercise of those rights
1165 Under article 191g of the Constitution a citizen has the right to carry on any occupation trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under cl
The principles underlying in cls
5 and 6 of article 19 are now well settled and ingrained in our legal system in a number of decisions of this Court and it is not necessary to burden this judgment with citations
The expression reasonable restriction  signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public
The test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable in all cases
The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 191g and the social control permitted by cl
6 of article 19 it must be held to be wanting in that quality
The nature of the right alleged to have been infringed is that wholesale dealers in foodgrains from the State of Uttar Pradesh or elsewhere are prevented from moving their stock of wheat to various other States or from one district to another without the transaction being verified and duly endorsed by the Deputy Marketing Officer or the Senior Marketing Officer concerned
The other restriction on the enjoyment of their right placed by the impugned teleprinter message is that there should be physical verification at the checkposts on the State s borders
These steps were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State
The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation
It cannot be said that they do not contain the quality of reasonableness or were not in the interests of the general public
In judging the validity of these restrictions the Court has to strike a proper balance between the freedom guaranteed under article 191g and the social control permitted by article 196
If therefore the seizure can be justified on the basis of any valid law it cannot be held to be illegal
This is equally true of article 301
article 301 imposes a general limitation on all legislative 1166 power in order to secure that trade commerce and intercourse throughout the territory of India shall be free
Having placed a general limitation on the legislative powers of Parliament and the State Legislatures article 302 relaxes that restriction in favour of Parliament by providing that authority may by law impose such restrictions on the freedom of trade commerce and intercourse between one State and another and within any part of the territory of India in the public interest
Likewise article 304b provides that notwithstanding anything in article 301 or article 303 a legislature of a State may by law impose such reasonable restrictions on the freedom of trade commerce or intercourse with or within that State as may be required in the public interest provided that no Bill or amendment for the purpose of cl
b shall be introduced or moved in the legislature of a State without the previous sanction of the President
Although article 301 guarantees that trade commerce and intercourse throughout the country shall be free the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public
The word free  in article 301 does not mean freedom from laws or from regulations
article 301 guarantees freedom of trade commerce and intercourse throughout the country from any State barriers
It declares that subject to the other provisions of Part XIII trade commerce and intercourse throughout the territory of India shall be free
The whole object was to bring about the economic unity of the country under a federal structure so that the people may feel that they are members of one nation
One of the means to achieve this object is to guarantee to every citizen the freedom of movement and residence throughout the country
That is achieved by article 191d and e
No less important is the freedom of movement or passage of commodities from one part of the country to another
The progress of the country as a whole also requires free flow of commerce and intercourse as between different parts without any barrier
This freedom of trade commerce and intercourse throughout the country without any State barriers  is not confined to inter State trade but also includes intra State trade as well
In other words subject to the provisions of Part XIII no restrictions can be imposed upon the flow of trade commerce and intercourse not only between one State and another but between any two points within the territory of India whether any State border has to be crossed or not
It is now well settled that the regulatory measures or measures imposing compensatory taxes do not come within the purview of the 1167 restrictions contemplated by article 301
The regulatory measures should however be such as do not impede the freedom of trade commerce and intercourse
It cannot be said that the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit are a restriction  on the freedom of trade commerce and intercourse within the country ie across the State or from one part of the State to another
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer commission agent or a retailer is not transported to a place outside the State or from one district to another
Even if these requirements are construed to be a restriction  on the inter State or intra State trade the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature
Nor can it be said that such restrictions do not satisfy the test of reasonableness
The question whether or not the seizure of the wheat was for contravention of any order issued under section 3 of the Act is pending investigation before the Additional District Magistrate Civil Supplies Agra
For the establishment of their rights the petitioners have still to establish that the wheat in question was bought by them in open market in Delhi and elsewhere and was being merely transported through the State of Uttar Pradesh in the course of inter State trade and commerce
If that be so then there was no contravention of any order issued by the Central Government under section 3 or by the State Government under section 3 read with section 5 of the Act
If on the contrary the wheat had been purchased by them at Agra or nearby places within the State of Uttar Pradesh the question would arise whether such purchase storage or sale of wheat was in contravention of any of the two Control Orders
In case there was such contravention of any of the provisions of the two Control Orders then there was undoubtedly the power of search and seizure
The case of the State Government before us was that the source of power to effect the seizure was the two Control Orders
It was asserted that the wheat was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi to various other States but had in fact been purchased at Agra and was being lifted from the State of Uttar Pradesh and had therefore to be seized at the check post at Saiyan and at Agra
Under cl 3 of 1976 Order no person can carry on business as a 1168 dealer or commission agent except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority
The term dealer  is defined in section 2c of the Order to mean a person engaged in the business of purchase sale or storage for sale of foodgrains
According to the State the seized wheat had been purchased at Agra in the course of trade and they were not isolated transactions and therefore the Delhi traders committed contravention of cl 3 of the 1976 Order
14 thereof confers the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the State Government in that behalf
The expression enforcement officer  is defined in cl 2e of that Order and it includes the Chief Marketing Officer and in that capacity the Chief Marketing Officer having reason to believe that contravention of the provisions of the Order had been was being or was about to be committed had the power to seize the trucks at the check post at Saiyan and effect the seizure of the trucks laden with wheat and bring them to the purchase point at Agra
Furthermore under cl 4 of the 1978 Order as amended no person who is a wholesale dealer commission agent or a retailer shall have in stock wheat in quantities exceeding 250 quintals 250 quintals and 20 quintals respectively at a time
6 confers the power of search and seizure on an enforcement officer which term as defined in cl
2d likewise includes the Chief Marketing Inspector Under cl 6d the Chief Marketing Inspector as an enforcement officer had the power to seize any article in respect of which he had reason to believe that a contravention of the Order had been was being or was about to be committed
The fixation of the maximum limits of stocks of wheat at 250 quintals 250 quintals and 20 quintals respectively which a wholesale dealer commission agent or a retailer may hold at any one time has necessarily the effect of freezing the excess stock of wheat lying with such dealer
This also results in preventing the movement of such excess stock of wheat from the State of Uttar Pradesh to various other States or from one district to another
The excess stock of wheat lying with such dealer that is a wholesale dealer commission agent or a retailer in truth and substance became their unlicensed stock 
If really the Delhi traders had purchased the excess stock of wheat from wholesale dealers commission agents or retailers in the State of Uttar Pradesh as is alleged it is possible to contend that there was a contravention of the provisions of cl 4 of the 1978 Order
The question whether the seizure was for any contravention of any Order issued under 1169 section 3 of the Act has to be determined by the Additional District Magistrate Civil Supplies Agra on the evidence adduced by the parties before him
The facts being controverted the petitioners have no right to relief under article 32 of the Constitution
Each of the petitioners has filed a sheaf of documents showing that the wheat had been purchased in the open market in Delhi and elsewhere that the trucks laden with their wheat were accompanied by the relevant bills goods receipts inter State transit passes etc that the trucks in question were allowed to cross the check posts at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh
but were seized either at the check posts at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra while they were in transit through the State of Uttar Pradesh
It was also asserted that all the documents were seized and taken away by the Senior Marketing Inspector and that he had given an acknowledgment of the same
Learned counsel appearing for the State vehemently contends that these documents were not shown to the authorities concerned and it is for the petitioners to prove these documents before the Additional District Magistrate Civil Supplies Agra in support of their claim We cannot act on the documents because the transactions are still to be proved
It is asserted on behalf of the State Government that such documents could always be brought into existence particularly when none of the transactions were effected through a Bank
This Court cannot obviously pronounce upon the genuineness of the transactions or record any finding on the basis of the documents when the facts are in dispute
There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law
article 300A provides that no person shall be deprived of his property save by authority of law
The State Government cannot while taking recourse to the executive power of the State under article 162 deprive a person of his property
Such power can be exercised only by authority of law and not by a mere executive fiat or order
article 162 as is clear from the opening words is subject to other provisions of the Constitution
It is therefore necessarily subject to article 300A
The word law  in the context of article 300A must mean an Act of Parliament or of a State Legislature a rule or a statutory order having the force of law that is positive or State made law
The decisions in Wazir Chand vs The State of Himachal 1170 Pradesh and Bishan Das and others vs The State of Punjab and others are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law
In Wazir Chand s case supra the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir
The seizure was admittedly not under the authority of law inasmuch as it was not under the orders of any Magistrate nor was it under sections 51 96 98 and 165 of the Code of Criminal Procedure 1898 since no report of any offence committed by the petitioner was made to the police in India and the Indian police were not authorised to make any investigation
In those circumstances the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under article 311
This view was reaffirmed in Bishan Das s case supra
The effect of the Constitution Fourth Amendment Act 1955 is that there can be no deprivation  unless there is extinction of the right to property
It is urged that the seizure of wheat was not with a view to extinction of the rights of the petitioners but the property in the seized wheat was theirs
No doubt the wheat had to be sold as it was subject to speedy and natural decay but the petitioners are entitled to the sale proceeds if ultimately it is found by the Additional District Magistrate Civil Supplies Agra that there was no contravention by them of an order issued under section 3 of the Act
It is not necessary for us to deal with the question whether an illegal seizure amounts to deprivation  of property within the meaning of article 300A for purposes of this case as the State Government does not dispute the right of the petitioners to the sale proceeds
It is true that the seizure was with intent to confiscate under section 6A of the Act but that would not make the seizure illegal if ultimately it is found that there was contravention of an order issued under section 3 of the Act
If the facts were not in controversy and if the petitioners were also able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border while in transit in the course of inter State trade and commerce from the Union Territory of Delhi perhaps they would be entitled to the return of the seized wheat or in the alternative 1171 to the payment of price thereof
The State contests the right of the Court to investigate into the facts particularly when the matter is a fact in issue in the aforesaid proceedings before the Additional District Magistrate Civil Supplies Agra
Normally it is not the function of this Court to investigate into facts in proceedings under article 32 of the Constitution when they are controverted with a view to discerning the truth
The matter must in a situation like this be left to the fact finding body
For the establishment of their right to relief under article 32 the petitioners must in our opinion establish the necessary fact before the said Additional District Magistrate in the proceedings under section 6A of the Act
If they fail to get relief in such proceedings their obvious remedy lies in a suit for damages for wrongful seizure
The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government and not for breach of the two Control Orders and therefore were nothing but a colourable exercise of power  is dependent on facts to be found on investigation
Further the question that there being no control price for wheat the wheat should have been sold by public auction is again a question that must be raised before the Additional District Magistrate Civil Supplies Agra in the proceedings pending before him under section 6A of the Act
Turning to the petitions under article 32 of the Constitution by wholesale dealers of foodgrains from the State of Uttar Pradesh learned counsel appearing for these petitioners challenged the impugned teleprinter message dated March 31 1981 and the Notification No P XXIX Food 5 54280 dated April 21 1981 issued by the State Government of Uttar Pradesh by which cl 4 of the Uttar Pradesh Foodgrains Procurement and Regulation of Trade Order 1978 has been amended particularly on three grounds namely 1 the impugned notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals at a time is an unreasonable restriction on the freedom of trade guaranteed under article 191g of the Constitution 2 there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same ie 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary irrational and irrelevant and thus violative of article 14 of the Constitution and 3 the instructions conveyed by the State Government by its teleprinter message dated March 31 1981 placing restrictions 1172 on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State were in breach of their fundamental right under article 191g read with article 301 of the Constitution
The first and second contentions may conveniently be dealt with together
In order to appreciate these contentions it is necessary to state a few facts During the year 1979 80 the country was victim to a very serious drought which affected with Kharif as well as Rabi crops
The Government of India therefore fixed a target of 95 million tonnes of wheat to be purchased in the summer months of 1981 for the national buffer stock
It fixed the procurement price at Rs 130 per quintal as against the support price of Rs 127 per quintal recommended by the Agricultural Price Commission to provide a better incentive to the farmers
The procurement was carried out as a measure of price support without any restriction on movement from one State to another
However some of the States were implementing local laws with regard to ensuring that the private trade adhered to the stock limit restrictions on them and did not try to corner stocks for speculation purposes
The original target fixed for procurement was 95 million tonnes but at the end of June only 65 million tonnes had been purchased leaving a deficit of 3 million tonnes
The result was that the Government of India was thus forced to buy 15 million tonnes of wheat in the world market
The Government s procurement drive was mainly frustrated by wholesale dealers of foodgrains cornering the stocks of wheat by paying a price higher than the procurement price to the farmers
The imperatives of the situation demanded that the speculative tendencies of the trade were curbed by strictly enforcing the stock limits of traders
Under original cl 4 of the Uttar Pradesh Foodgrains Procurement and Regulation of Trade Order 1978 a wholesale dealer commission agent or a retailer could have in stock wheat not more than 750 quintals 750 quintals and 100 quintals respectively at any time
In view of the worsening situation in the national buffer stock and in the light of the experience gained during the past few years the State Government was of the opinion that it was necessary and expedient to re fix the stock limits of such dealers
This was expected to maximise procurement of wheat to meet the requirement of public distribution as well as the buffer stock
1173 It cannot be asserted that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or is of an excessive nature
The fixation of the stock limit of wheat to be possessed by wholesale dealers at any time at 250 quintals is an important step taken by the State Government to obviate hoarding and black marketing in wheat which is in short supply
It is hardly necessary to emphasise the extent and urgency of the evil sought to be remedied thereby
Perhaps fixation of the minimum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals at a time is too low but the restriction so imposed cannot be treated to be arbitrary or of an excessive nature beyond what is required in the national interest
It is a matter of common knowledge that wholesale dealers of foodgrains mainly operate in large cities and towns and have the means and capacity to manipulate the market by withholding stocks of a commodity
There was need to check such speculative tendencies in the trade
It was therefore felt expedient to re fix the stock limit of wheat for wholesale dealers at 250 quintals at a time as in the case of a commission agent
The underlying idea is that the wholesale dealers should be allowed to continue their trading activities within reasonable limits
The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time in stock a wagon load of wheat
In Krishan Lal Praveen Kumar  Ors etc
vs The State of Rajasthan this Court has interpreted the words at any time  as meaning at any given time 
This means that a wholesale dealer should not have in stock more than 250 quintals at a time
But there is nothing to prevent a wholesale dealer from entering into a series of transactions during the course of the day
This Court in Krishan Lal Parveen Kumar s case supra and Suraj Mal Kailash Chand  Ors
vs Union of India  Anr has upheld the validity of a similar notification dated March 23 1981 issued by the State Government of Rajasthan in exercise of the powers conferred by cl 18 of the Rajasthan Trade Articles Licensing and Control Order 1980 fixing the maximum limit of wheat to be possessed by a dealer at any one time at 200 quintals on the ground that it is a reasonable restriction by the State Government within the meaning of article 196 of the Constitution
In view of these decisions it is difficult to conceive as to how the contention based on article 191g of the Constitution can survive
1174 True it is if the governmental action is arbitrary or there is no rational nexus to the object sought to be achieved it is liable to be struck down as violative of article 14 of the Constitution
The State Government has adopted various measures in the interest of the general public for the control of production supply and distribution of and trade and commerce in essential commodities
To obviate hoarding and blackmarketing in foodstuffs it has promulgated the Order
It introduces a system of checks and balances to achieve the object of the legislation ie to ensure equitable distribution and availability of essential commodities at fair prices
It cannot be said that looking to the prevailing conditions the imposition of such restrictions does not satisfy the test of reasonableness
Nor can it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be achieved and is therefore violative of article 14
On the contrary the limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is a reasonable restriction within the meaning of article 196 of the Constitution
One further point requires to be noticed
The contention that the action taken by the State Government in issuing the impugned teleprinter message amounts to an intrusion  on the fundamental right to carry on trade or business under article 191g or on the freedom of trade commerce and intercourse under article 301 of the Constitution appears to be wholly misconceived
As already stated the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit are not a restriction  on the fundamental right to carry on trade or business guaranteed under article 191g or on the freedom of trade commerce and intercourse under article 301
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer commission agent or a retailer is not transported to a place outside the State or from one district to another
Even if these requirements are considered to be a restriction  on inter State or intra State trade that is across the State or from one part of the State to another the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of article 191g or article 301 of the Constitution
The State Government in its return has stated that there is no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one 1175 district to another within the State subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned
The petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are therefore free to carry on their business within the permissible limits ie they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals at a time
In the result the writ petitions must fail and are dismissed
The stay orders passed by the Court from time to time stand vacated
Formal orders for vacating stay granted in those matters need not be issued
There shall be no order as to costs
SR Petitions dismissed


Summary:
In exercise of the powers vested under the Essential Commodities Act 1951 the State Government of Uttar Pradesh issued two orders namely 1 the Uttar Pradesh Food Grains Dealers Licensing and Restriction on Hoarding Order 1976 and 2 the Uttar Pradesh Food Grains Procurement and Regulation of Trade Order 1978
By its teleprinter message dated March 31 1981 to all the Regional Food Controllers the State Government issued certain further instructions for effective enforcement of the two Orders and in particular regulating the inter district and outside the State movement of wheat by traders on private account
By a Notification No P XXIX Food 5 54280 dated April 211981 clause 4 of the 1978 Order was amended providing that no wholesale dealer commission agent or a retailer shall have in stock wheat more than 250 quintals 250 quintals and 20 quintals respectively at any time since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices
Pursuant to the powers vested in them the Senior Marketing Inspector and the Chief Marketing Inspector Agra intercepted and seized the trucks laden with wheat of the petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh and after bringing them back to the purchase point at Agra unloaded the wheat from the said trucks
While the petitioners moved an application for the release of the seized wheat before the Additional District Magistrate Civil Supplies Agra the Marketing Inspectors not only lodged First Information 1138 Reports but obtained an interim order on May 23 1981 for the sale of the seized wheat as it was subject to speedy and natural decay
The seized wheat had been purchased by the State Government on Government account at the procurement price and the sale proceeds were credited into the treasury
The petitioners challenged the teleprinter message dated March 31 1981 and the Notification dated April 21 1981 on the following grounds 1 The Notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals at a time is an unreasonable restriction on the freedom of trader guaranteed under Article 191g of the Constitution 2 there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same ie 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary irrational and irrelevant and thus violative of Article 14 of the Constitution 3 the instructions conveyed by the State Government by its teleprinter message dated March 31 1981 placing restrictions on movement of wheat by traders on private account from the State of UP to various other States and on inter district movement of wheat within the State were violative of their fundamental rights under Article 191g and Article 301 of the Constitution 4 the seizure of the consignments of the wheat while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh was without the authority of law and in violation of Article 300A of the Constitution 5 the restriction must be by law or by an order having the force of law and not by recourse to the executive authority of the State under Article 162 of the Constitution that is by an executive action
The teleprinter message of the State Government dated March 31 1981 on the basis of which the seizures were effected in truth and substance had no legal sanction and cannot be construed to be a notified order within the meaning of sub section 1 read with sub section 5 of section 3 of the Essential Commodities Act it was nothing but an executive direction
No executive action which operates to the prejudice of the citizens can be taken without the authority of law
The seizures effected were not in compliance with the instructions contained in the teleprinter message and not for breach of the two control Orders and therefore it was nothing but a colourable exercise of power
The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government without any legal sanction since the farmers were not willing to sell their wheat at the procurement price and 6 under sub section 2ii of section 6A of the Act there being no control price for wheat the wheat should have been sold by public auction by the Additional District Magistrate while passing an interim order
Dismissing the petitions the Court  HELD 11
The restriction imposed by the State Government on wholesale dealers of wheat is neither arbitrary nor is of an excessive nature beyond what is required in the national interest
To check speculative tendencies of the wholesale traders and others who manipulate the market by withholding stocks of a commodity and to obviate blackmarketing the stock limit of wheat was fixed for wholesale dealers at 250 quintals at a time as in the case of a commission agent the underlying idea being that the wholesale dealers should be allowed to 1139 continue their trading activities within reasonable limits
The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time in stock a wagon load of wheat
The words at any time mean at any given time which means that a wholesale dealer should not have in stock more than 250 quintals at a time
But there is nothing to prevent a wholesale dealer from entering into a series of transaction during the course of the day
1173 A E 12
The State Government had adopted various measures in the interest of the general public for the control of production supply and distribution of and trade and commerce in essential commodities
The Order fixing a stock limit introduces a system of checks and balances to achieve the object of the legislation that is to ensure equitable distribution and availability of essential commodities at fair prices
Looking to the prevailing conditions the imposition of such restrictions satisfies the test of reasonableness
The fixation of such stock limit is not arbitrary or irrational having no nexus to the object sought to be achieved and is therefore intra vires of Article 14
The limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is also a reasonable restriction within the meaning of Article 196 of the Constitution
1174 A D 21
The teleprinter message No PP 1061XXIXFood 5 dated 31st March 1981 was in the nature of executive instruction of the State Government to the Regional Food Controllers of the various regions to be more vigilant and to secure due observance of the control orders
1156 B E F 1163 C 22
The instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit are not a restriction  or an intrusion  on the fundamental right to carry on trade or business guaranteed under Article 191g or on the freedom of trade commerce and intercourse under Article 301
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer commission agent or a retailer is not transported to a place outside the State or from one district to another
Even if these requirements are considered to be a restriction  on inter State or intra State trade that is across the State or from one part of the State to another the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of Article 191g or Article 301 of the Constitution
There being no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one district to another within the State subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned the Petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are therefore free to carry on their business within the permissible limits that is they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals at a time
1174 D H 1175 A B 23
The teleprinter message dated March 31 1981 was a direct sequel to the Centre s directives contained in its earlier teleprinter message and intended or meant to achieve three main objectives namely i to provide price support in wheat to purchasers with a view to sustain maintain and maximise the pro 1140 curement of wheat ii to prevent hoarding and black marketing and iii to provide for equitable distribution and availability of wheat at fair prices
The directions were obviously meant to subserve the object of the legislation and were in public interest
The State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat there is nothing unusual on the State Government issuing such executive instructions
1156 E F 1160 D E 24
Even assuming that the impugned teleprinter message is not relatable to the control Orders the State Government undoubtedly could in exercise of the executive power of the State introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check post on the border and place restrictions on inter district movement of wheat by traders on private account within the State
1156 E F Ram Jawaya Kapur vs State of Punjab and Naraindas Indurkhya vs State of Madhya Pradesh  Ors   explained and followed
The State Legislature is competent to enact a law on the subject covered by Entry 33 List III regulating trade and commerce in and the production and supply and distribution of foodstuffs
The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 73 List II of the Seventh Schedule to the Constitution as amended by the Constitution Third Amendment Act 1954
The exercise of such concurrent jurisdiction would not deprive the State Legislature of its jurisdiction thereunder
The executive power of the State which is coextensive with the legislative power is subject to the limitation contained in Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union of authorities thereof
1158 F H 1159 A B 32
The State in exercise of its executive powers is charged with the duty and the responsibility of carrying on the general administration of the State
So long as the State Government does not go against the provisions of the constitution of any law the width and amplitude of its executive power cannot be circumscribed
If there is no enactment covering a particular aspect certainly the Government can carry on the administrative directions or instructions until the legislature makes a law in that behalf
Otherwise the administration would come to a standstill
1157 B C 33
The executive power of search and seizure is a necessary concomitant of a welfare State
It tends to promote the well being of the nation
Many questions arising in the field of search and seizure are factual in nature involving varying degrees of difference among the infinitely diverse facts
It is a limitless area where not only every factual variation presents a new constitutional question but it is a peculiar field in which the decisions of courts do not help in clarifying the law
The decisions in the field are of little precedental value because the more the cases that are decided the more issues arise through possible factual variation
1159 B E 1141 41
The quintessence of the Constitution is the rule of the law
The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts
1161 A State of Madhya Pradesh vs Thakur Bharat Singh   Satwant Singh Sawhney vs Dr Ramarathnam Assistant Passport Officer Government of India New Delhi  Ors at 542 Smt
Indira Nehru Gandhi vs Shri Raj Narain at 524 reiterated
The is a law within the meaning of Article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by Article 191g and Article 301 of the Constitution
The object of the Act is to provide in the interest of the general public for the control production supply and distribution of and trade and commerce in certain essential commodities
1161 D E 5
From the point of view either of Entry 54 List II or of Article 301 of the Constitution the State Legislature is competent to set up the check posts and barriers on the State s borders designed and meant to prevent evasion of sales tax and other dues
Just as inter State trade and commerce must pay its way and be subject to taxation persons engaged in inter state trade or commerce are equally subject to all regulatory measures
The check posts or barriers set up by the State Government under section 28 of the UP Sales Tax Act 1948 which is legally accepted as valid and also considered not a restriction or impediment to the freedom of trade commerce and intercourse granted under Article 301 of the Constitution can certainly be utilised as a machinery for due observance of the laws for example for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States
B D 61
The fundamental right to carry on trade or business guaranteed under Article 191g or the freedom of inter State trade commerce and intercourse under Article 301 of the Constitution has its own limitations
The liberty of an individual to do as he pleases is not absolute
It must yield to the common good
Absolute or unrestricted individual rights do not and cannot exist in any modern State
There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all
Whenever such a conflict comes before the Court it is its duty to harmonise the exercise of the competing rights
The Court must balance the individual s rights of freedom of trade under Article 191g and the freedom of inter State trade and commerce under Article 301 as against the national interest
Such a limitation is inherent in the exercise of those rights
1164 E H 62
Under Article 191g of the Constitution a citizen has the right to carry on any occupation trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause 6
1165 A 63
The expression reasonable restriction signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public
The test of reasonableness wherever prescribed should be applied to each individual 1142 statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable in all cases
The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 191 g and the social control permitted by clause 6 of Article 19 it must be held to be wanting in that quality
1165 B D 64
Several steps taken in the instant case like prevention of movement of stock of wheat to various other States movement of wheat from one district to another within the State only after the verification of the transaction and due endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned and also the physical verification at the check post on the State s borders etc were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State
The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation and hence the steps taken were reasonable and in the interests of the general public
If therefore the seizure can be justified on the basis of any valid law it cannot be held to be illegal
1165 D H 71
Article 301 imposes a limitation on all legislative power in order to secure that trade commerce and intercourse throughout the territory of India shall be free
Although Article 301 guarantees that trade commerce intercourse throughout the country shall be free the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public
1165 A 1166 A C 72
The word free  in Article 301 does not mean freedom from laws or from regulations
Article 301 guarantees freedom of trade commerce and intercourse throughout the country from any State barriers
The whole object was to bring about the economic unity of the country under a federal structure so that the people may feel that they are members of one nation
One of the means to achieve this object is to guarantee to every citizen in addition to the freedom of movement and residence throughout the country which is achieved by Article 191d and e is the freedom of movement or passage of commodities from one part of the country to another
This freedom of trade commerce and intercourse throughout the country without any State barriers is not confined to inter State trade but also including intra State trade as well
In other words subject to the provisions of Part XIII no restrictions can be imposed upon the flow of trade commerce and intercourse not only between the State and another but between any two points within the territory of India whether any State border has to be crossed or not
1166 D H 73
The regulatory measure or measures imposing compensatory taxes do not come within the purview of the restrictions contemplated by Article 301
The regulatory measures should however be such as do not impede the freedom of trade commerce and intercourse
1166 H 1167 A 81
In view of the provisions of clause 3 of the 1976 Order read with clauses 4  6 of the 1978 Order the validly seized excess stock of wheat lying with such dealer that is a wholesale dealer commission agent or a retailer in truth and substance became their unlicensed stock
Here if really the Delhi traders had purchased the excess stock of wheat from wholesale dealers com 1143 mission agents or retailers in the State of Uttar Pradesh as is alleged it is possible to contend that there was a contravention of the provisions of clause 4 of the 1978 Order
The question whether the seizure was for any contravention of any order issued under section 3 of the Act has to be determined by the Additional District Magistrates Civil Supplies Agra on the evidence adduced by the parties before him
The facts being controverted the petitioners have no right to relief under Article 32 of the Constitution
1168 D H 1169 A B 82
Supreme Court can neither act on documents which are yet to be proved nor can they pronounce upon the genuineness of the transactions covered by them or record any finding on the basis of the documents when the facts are in dispute
1169 E 83
Normally it is not the function of Supreme Court to investigate into facts in proceedings under Article 32 of the Constitution when they are controverted with a view to discerning the truth
The matter must in a situation like this be left to the fact finding body
For the establishment of their right to relief under Article 32 the petitioners must establish the necessary facts before the said Additional District Magistrate in the proceedings under section 6A of the 
If they fail to get relief in such proceedings their obvious remedy lies in a suit for damages for wrongful seizure
1171 A C 91
The State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution deprive a person of his property
Such power can be exercised only by authority of law and not by a mere executive fiat or order
Article 162 being subject to other provisions of the Constitution is necessarily subject to Article 300A 1169 F G Wazir Chand vs The State of Himachal Pradesh   Bishan Das and Others vs The State of Punjab and Others   referred to
The word law  in the context of Article 300A must mean an Act of Parliament or of a State Legislature a rule or a statutory order having the force of law that is positive or State made law
1169 G H 93
The effect of the Constitution Fourth Amendment Act 1955 is that there can be no deprivation  unless there is extinction of the right to property
Here no doubt the wheat had to be sold as it was subject to speedy and natural decay but the petitioners are entitled to the sale proceeds if ultimately it is found by the Additional District Magistrate Civil Supplies Agra that there was no contravention by them of an order issued under section 3 of the Act
It is true that the seizure was with intent to confiscate under section 6A of the Act but that would not make the seizure illegal if ultimately it is found that there was contravention of an order issued under section 3 of the Act
If the facts were not in controversy and if the petitioners were able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border while in transit in the course of inter State trade and commerce from the Union Territory of Delhi perhaps they would be entitled to the return of the seized wheat or in the alternative to the payment of price thereof
1170 D H 1171 A 1144 94
The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government and not for breach of the two Control Orders and therefore were nothing but a colourable exercise of power  is dependent on facts to be found on investigation
Further the question that there being no control price for wheat the wheat should have been sold by public auction is again a question that must be raised before the Additional District Magistrate Civil Supplies Agra in the proceedings pending before him under section 6A of the Act
1171 C D