ivil Appeal No 1372 of 1980
From the Judgment and Order dated the 195
1980 of the Punjab and Haryana High Court in CWP No 1378 of 1973
GL Sanghi Vivek Gambhir Dhruv Mehta SK Gambhir and Surender Karnail for the Appellants
CM Nayar for the Respondents
The Judgment of the Court was delivered by THOMMEN J
This appeal by special leave arises from the Judgment of the Punjab  Haryana High Court in Civil Writ Petition No 1378 of 1973
The appellants in the writ peti tion challenged the constitutionality of the East Punjab Molasses Control Amendment hereinafter referred to as the Amendment Act 1973 on the ground that the said amendment had not re ceived the previous sanction of the President of India in terms of Article 304b of the Constitution
The High Court dismissed the writ petition holding that the appellants were not shown to have been aggrieved by the impugned amendment
The Amendment Act
1973 amended the provisions of the East Punjab Molasses Control Act
1948 East Punjab Act No 11 of 1948 hereinafter referred to as the Principal Act
as it stood at the relevant time
The Principal Act had been earlier amended in 1950
1964 and 1968
It was subsequently amended in 1976
The appellants have
however
challenged only the Amendment Act 1973 and have significantly not challenged the earlier or subsequent amendments
Rejecting the appellants  contentions
the High Court observed 
We have very carefully gone through the petition and we have asked the learned counsel for the petitioners to point out any averment from the petition
to show that the petitioners were dealing with molasses which were not covered under the definition of molasses given in the unamended Act
but arc covered within the definition of molasses under the Amending Act
No such averment has been made  
The grievance of the petitioners that they have been made subject to the provisions of the Act in view of the Amending Act thus does not stand substantiated from the averments made in the petition 
The appellants admitted before the High Court that apart from the Principal Act as enacted in 1948
being an existing law 
and therefore beyond challenge
none of its provisions could be regarded as an unreasonable restriction on the freedom of trade
commerce and intercourse
The appellants however contended that the impugned provisions inserted in 1973 were null and void for the reason that the restrictions so introduced had not received the previous sanction of the President
Section 2 of the Principal Act was amended in 1973 to define molasses  as well as khandsari unit 
By this amendment a new definition of molasses  was substituted in the place of the original definition See Clause c
Clause f of Section 2 was added to define a khandsari unit 
502 Section 3 of the Principal Act empowered the Controller to direct the owner or occupier of a sugar factory or any other person to furnish returns of the stock of molasses in his possession
This Section was amended in 1973 to bring a khandsari unit or distillery within the statutory ambit
Section 3A had been added in 1964
to empower the Control ler to direct the owner or occupier of a sugar factory or distillery or any other person permitted to store and preserve molasses to construct tanks for the storage of molasses
This Section was amended in 1973 to bring a khand sari unit within its ambit
Section 4 of the Principal Act says that no person shall without a permit issued by the Controller move molasses by road rail river or by any other means or sell or otherwise dispose of molasses to any person other than the Government or a person licensed by the Government in this regard
It also authorises the Controller to direct the owner or occupier of a sugar factory to supply molasses of specified quantity and quality to such persons as the Con troller may direct
This section was amended in 1964 to provide that no person shall store or preserve molasses without the Controller s permit
It was further amended in 1973 to bring a khandsari unit within the ambit of the controller s power to direct supply of molasses
Section 5 of the Principal Act empowers the Government to regulate prices from time to time and prescribes the manner in which molasses has to be graded marketed packed or stored for sale
It was amended in 1976 in certain re spects which are not material
Section 6 provides for the imposition of penalty in the event of contravention of any provision of the Act
The Section was substituted in 1964 for the original Section
It was amended in 1973 in certain respects
Section 7 of the Principal Act refers to liability for breaches by corporation or company
This Section has not undergone any change
Section 8 of the Principal Act provid ed that no court should take cognizance of any offence punishable under the Act except on a report made by the Controller
This section was substituted in 1964 to provide for the exercise of supervision and control by the Control ler over sugar factories through subordinates
It was amend ed in 1973 by including a khandsari unit within its ambit
Section 9 of the Principal Act provided for power of entry and seizure
It was substituted in 1973 by a new section with certain changes which are immaterial
Section 10 of the Principal Act provided for the procedure of seizure
It was substituted by a new section in 1973 but the changes are not material
Section 11 deals with the delegation of pow ers
It has not undergone any change
Section 12 of the Principal Act deals with the power of the Govern 503 ment to exempt any area or person from the provisions of the Act
This Section was amended in 1973 to empower the Govern ment to exempt any kind of molasses from the provisions of the Act
Section 13 of the Principal Act deals with the rule making power of the Government
It was amended in 1973 to include khandsari unit or distillery within the scope of that Section
These are the changes made in the Principal Act
The substantial change introduced by the Amendment Act 1973 is in the substituted definition of molasses  so as to include within its meaning mother liquor produced in the final stage of manufacture of sugar or khandsari sugar
The appellants being dealers in khandsari molasses are stated to be aggrieved by the expanded definition of mo lasses 
Molasses  was defined under the unamended Section 2c of the Principal Act as follows 2c Molasses  means the heavy dark coloured residual syrup drained away in the final stage of the manufacture of sugar by vacuum pans or in open pans in sugar factories either from sugarcane or by refining gur when such syrup has a density of not less than 75 degrees brix and a for mentable sugar content expresent as reducing sugars 19 per cent   This definition was substituted by the Amendment Act 1973 as follows 2c molasses  means the mother liquor produced in the final stage of manufacture of sugar or khandsari sugar by vacuum pans or in open pans from sugarcane or gur with or without the aid of power
 The new definition of molasses  under the amendment provi sion specifically refers to khandsari sugar apart from sugar while the unamended section 2c referred only to sugar
Section 2f as introduced by the Amendment Act 1973 defines khandsari unit  as follows 2f khandsari unit  means any premises including the land godowns or out houses appurtenant thereto wherein or in any part of which a manufacturing process con 504 nected with the production of khandsari sugar from sugar cane or gur in open pans is carried on with or without the aid of power
 The occupier of a khandsari unit  is defined as a person who has control over the affairs of a khandsari unit
The definition of sugar factory  has not undergone any change and it reads as follows 2d sugar factory  means any premises including the land godowns or outhouses appurtenant thereto whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process connected with the production of sugar by means of vacuum pans or in open pans is being carried on or is ordinarily so carried on with the aid of power
 The main object of the Amendment Act 1973 is to clarify that the Principal Act applies in equal measure to a khand sari unit as it does to any other sugar factory
The contention is that the provisions of the Amendment Act 1973
though not in themselves unreasonable restric tions nevertheless bring the appellants under greater statutory control and are therefore
invalid for want of previous sanction of the President in terms of the proviso to Article 304b
This challenge
as seen above has been rejected by the High Court for the reason that the appel lants  business has been in equal measure controlled by the Principal Act itself
The appellants being dealers in mo lasses
the new definition of the term molasses which includes khandsari sugar does not subject their business to any greater control
The appellants  counsel
Mr GL Sanghi contends that the provisions of the Amendment Act
1973 impose direct and immediate restrictions upon the appellants  trade
They are a burden on trade and they deter the appellants from trad ing
They directly affect the freedom of trade and commerce
They are not merely regulatory for the purpose of facilitat ing the free flow of trade and commerce
They are restric tions hampering trade
They may be justifiable as reasonable restrictions but being restrictions unsupported by previous sanction of the President they are nevertheless invalid
Mr CM Nayar appearing for the respondents on the other 505 hand
contends that the impugned provisions of the Amendment Act 1973 are regulatory measures enacted to facilitate trade and they do not come within the ban of the proviso to clause b of Article 304
These provisions do not require the previous sanction of the President in terms of the proviso to Article 304b
Counsel on both sides
in support of the respective contentions
refer to the principle stated by this Court in Ariabari Tea Co Ltd vs State of Assam  Ors   The Automobile Transport Rajasthan Ltd vs The State of Rajasthan  Ors 1963 1 SCR 491 and State 0f Bihar  Ors
vs Harihar Prasad Debuka  Ors  and other cases
1967 21 SCR 361 1971 11 SCC 59 19861 SCR 9391989 31 SCC 2111990 31 SCC 87   1970 11 SCR 400 1955 11 SCR 380 SCC 541
It is not and cannot be
disputed that if the impugned provisions are not merely regulatory with a view to facili tating trade
but are in quality and substance restrictive
though reasonable as restrictions can be
and if they in effect constitute a hinderance or impediment to the free flow or movement of trade they are unconstitutional in the absence of previous sanction of the President
The question however is the Principal Act
being an existing law and therefore beyond challenge
do the impugned provisions
introduced in 1973
being additional provisions
enlarge in substance and quality the scope and ambit of the Principal Act
thereby impeding in greater measure the free flow or movement of trade so as to fall within the ban of the provi so to clause b of Article 304 In other words does the Amendment Act1973
restrict the appellants  business to a greater extent or is it merely clarificatory in so far as
at any rate
the appellants are concerned The point then really is
has the amendment made the Act more stringent in so for as the appellants are concerned If the answer is negative
as the High Court has held
the appellants are not aggrieved
and cannot therefore
success fully challenge the Amendment Act
Referring to the principle of contemporanea exposition
Mr Sanghi says that the Act
as it stood before the amend ment
was not understood to apply to khandsari unit
and consequently to the business of the appellants
and it became applicable only as a result of the amendment
We do not agree that this submission is right
The High 506 Court has on the basis of the pleadings and other evidence and with reference to the relevant provisions categorically held that the Act as it originally stood was applicable to the trade of the appellants and the amendment in effect did not make any difference to them
The High Court has found that the appellants were not aggrieved solely by reason of the amendment and the provisions as they stood prior to the amendment applied to them in equal measure
This apart the amendment in our view was merely clarificatory and it was always well understood in trade that khandsari sugar was also sugar and that any reference to sugar in the absence of specific exclusion or qualification was capable of equal application to sugar of all kinds including khandsari
Even if it is true that persons who dealt with the statute under stood its provisions in a restricted sense such mistaken construction of the statute did not bind the Court so as to prevent it from giving it its true construction
see the observation of Lord Blackburn in The Trustees of the Clyde Navigation vs Laird  Sons 8 AC 658 670 as quoted in National  Grindlays Bank Ltd vs The Municipal Corporation of Greater Bombay  We are of the view that the reasoning of the High Court was correct
The Principal Act being an existing law  within the meaning of Article 36610 read with Article 305 of the Constitution and the provisions of the Amendment Act 1973 which are impugned in this appeal being clarifica tory the previous sanction of the President was not re quired
See the principle stated in Syed Ahmad Aga vs State of Mysore We do not however ex press any view as to whether the impugned Act is regulatory or restrictive for that question for the present purpose is in our opinion academic
The appeal is dismissed with costs throughout
PSS Appeal dismissed


Summary:
Gangamoni Mondal the respondent in one of the appeals purchased on 2911963 the suit property
About three years and five months after her purchase the prede cessor in interest of the appellants made an application for pre emption under section 26 F of the Bengal Tenancy Act 1885 on the ground that he was a co sharer of the holding which comprised the land purchased by the respondent
The holding was previously a Raiyati Mokarari interest which had vested in the State under the provisions of the West Bengal Estates Acquisition Act 1953
the defence of the respondent was that though the predecessor in interest of the appel lant and her vendor were the joint holders of the property in question the right of pre emption available to the co sharer had ceased with the coming into force of the Estates Acquisition Act of 1953
The pre emption application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge
In revision the Full Bench of the High Court negatived the contention of the applicant and dis missed the pre emption application
Dismissing the appeals and SLPs this Court HELD 1 The Full Bench has rightly come to the conclu sion that the right of pre emption could not survive under the West Bengal Estates Acquisition Act 1953
348B 2 Section 26 F of the Tenancy Act 1885 conferred on a cosharer tenant of an occupancy holding a right to compel another co 528 sharer tenant to sell his share in the holding to him instead of to a stranger
The term co sharer envisages that the holding must be under the ownership of more than one person
The holding must be an occupancy holding that is it must be the holding of raiyats having occupancy rights
So long as a division of the holding does not take place in accordance with section 88 of the Tenancy Act the holding remains a joint holding and each co sharer will be entitled to preemption in case of transfer of a share or portion of the holding by a co sharer to a stranger
340E F 3 By virtue of the notifications issued by the State Government under section 4 of the 1953 Act from time to time the interests of raiyats and under raiyats vested in the State with effect from April 14 1956
341C 4 The effect of 1953 Act was to vest the rights of intermediaries an expression subsequently extended to cover raiyats and under raiyats in the State Government
Each raiyat became a direct tenant under the State and the land retained by a raiyat of a holding became the subject matter of a separate tenancy
It was therefore no longer possible to call them co sharers entitled to pre emption case of a transfer to a stranger
341D 345E 5 By a notification dated 285
1954 the Government of West Bengal framed rules called the West Bengal Estates Acquisition Rules 1954
The original rule 4 merely provided that in the case of agricultural land retained by the inter mediary he shall hold it on the same terms and conditions as an occupancy raiyat under the Tenancy Act leaving it undefined as to whether these terms and conditions would also include the right of pre emption available under the Tenancy Act
The amendment of 1962 specifically included the right of pre emption available under section 26 F but the reference to section 26 F was omitted by the amendment of 1964
This definition however did not mean that the right of pre emption was taken away
343F 344E F 347F 6 There is no statutory provision that brings non agricultural tenants within the scope of the vesting provi sions
The High Court was right in making the distinction and upholding the right of pre emption in the case of non agricultural tenancies
349A B Shibasankar vs Prabartak Sanghs Sastidas Mullick vs JLRO Parrachpore Circle and Ors  referred to