Case: Syed Ahmed Aga Etc Vs. State of Mysore &amp; Another

" restriction" as contemplated by Article 304 (b). The learned Additional Solicitor General has contended that such licensing is necessary even for simply maintaining a record of those.Who carry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amending law.23. Learned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales 1955 AC 241, where provisions of the State. Transport (Co-ordination) Act, of the State of new South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of all provisions consequential thereto, in so far as they were sought to be applied to public Motor. Vehicles operating in the course of or for the purposes of inter-State trade, were held to be invalid for a contravention of Section 92 of the Constitution of Commonwealth of Australia. This section, as we know, provides that trade commerce and intercourse, among States whether by means of internal carriage or motor navigation shall be absolutely free". Here, Privy Council discussed a large number of cases which had a bearing on the interpretation of Section 92 of the Australian Constitution, including commonwealth of Australia Bank of New South Wales case, 1950 AC 235 at p. 311 where it was observed (at p. 311):"Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free".The Privy Council after quoting this passage said:"As to the passage in the judgment of the Board in the Bank case upon which counsel for the respondents particularly relied, their Lordships accept without qualification everything that was said by the Board in the Bank case, but they are not aware of any circumstances in the present case giving rise to the situation contemplated in that passage".24.Thus, even if we were to apply the test of regulation to distinguish it from restriction which may be deduced from Hughes case, 1955 AC- 241 (supra), it will be seen that a decision on it depends upon the circumstances to which a legislative measure is meant to apply and its consequences. In the case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade. The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intra - State commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not think that the mere fact that the legality of an enactment is challenged forwith the proviso to Article 304 (b) of the Constitution would take away the character or substance of a petitioners claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legallygoing through these rules, the validity of which was not challenged, we are satisfied that no additional restriction is imposed by the Amending Section 4 (1).Here also we are unable to find any substance in the grievance that there has been any significant increase inis true that even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws. Penalties are really part of the procedure for the enforcement of restrictions. They do not create new offences. They only make violation of whatever restrictions on trade and commerce were there more onerous. We, therefore. doubt very much whether they could really, be looked upon as additional restrictions upon freedom of trade andKhyerbari Tea Cos case (supra), the Court, proceeding on the assumption that the tax was not compensatory upheld its validity, presumably because it was considered reasonable and in public interest as a restriction. No such question of reasonableness of any restriction imposed by the Amending Act before us has been raised by the petitioners. But, if the position of even taxation, from the point of view of "restrictions" contemplated by Article 304 (b) of the Constitution could be doubtful and depended upon its nature and extent and purpose, we think that there could be no doubt that some additional licensing, at nominal fees charged presumably to defray the expenses of carrying out the objects of the Act, could not he held to be anything more than "regulation" in the cases beforecarry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amendingthe case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learnedCounsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade.The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intraState commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.