Case: Dava Son Of Bhimji Gohil Vs. Joint Chief Controller Of Imports &amp; Exports

mine-owners like the appellant. The livelihood of a person cannot be made to depend upon the passing moods of an officer of a State corporation, however well-intentioned he may be in the discharge of his duties. The scheme of channelling of exports through an agency or agencies could certainly be dovetailed with that of equitable apportionment of quotas amongst persons producing or doing business in manganese ore without any detriment to the object of promoting export trade Any scheme of can- alization of exports through specialized agencies must be governed by definite rules whereunder provision is made giving stability and guarantee of fair treatment in ordinary times as well as in times of emergency. For instance appropriate rules could be framed fixing quotas for each mine-owner the expected total quantity of export, having regard to the quality and the quantity of manganese produced. It may also be necessary to appoint an expert body under the said rules not only to advise the State in fixing the quota but also for fixing reasonable prices, having regard to the relevant circumstances. Perhaps, many other methods may be evolved to achieve the said result. It is for the Government and the experts to do so. But what I emphasize is that, matters shall not be kept, , in a vague uncertainty in the minds of, persons affected by the said scheme, but the Government should evolve definite principles by making rules, of course providing for emergencies and change of circumstances. I should not be understood to have tied down the hands of the Central Government by the said observations, for it is left to it to make appropriate rules in the light of the said observations.At this stage, another contention of learned counsel for the appellant may be noticed. He argues that, unless a law is made by the State for carrying on the business by a corporation, owned or controlled by the State, to the exclusion, complete or partial of citizens, a virtual monopoly brought about by administrative action under the colour of a power to canalize the trade in a particular commodity through specified channels must necessarily be an unreasonable res- triotion on the right of a citizen to carry on his business in that commodity. In support of this contention reliance is placed upon Art. 19(6) of the Constitution, as amended by the Constitution (First Amendment) Act, 1951, the material part of which reads: "Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - (i)................................................ (ii) the carrying on by the State, or by a corporation, owned or controlled by the State, of any trade, business industry or service.- whether to the exclusion, complete or partial, of citizens or otherwise."16. The amended article does not propric vigore confer any power on the State to create monopolies by administrative action. But, it is only says that if a valid law is made conferring a power on the State to carry on trade or business to the exclusion, complete or partial, of citizens, such a law will not infringe the fundamental right guaranteed under Art. 19 (1)(g) of the Constitution. It does not also say, as learned counsel for the appellant argues, that unless such a law is made, every interference by the State with the trade of a citizen in exercise of a power under some other law would necessarily be an unreasonable restriction: such an interference will not have the protection of the amended provision of the Constitution, but must be judged by the standard provided by the first part of Art. 19(6); it would be valid, if it was a reasonable restriction on the exercise of the petitioners fundamental right made in the interest of the general public. The decision of this Court in Saghir Ahmad v. The State U. P. ((1955) 1 S.C.R. 707, 727.) does not really help the appellant. there, this Court was considering the question whether the U. P. Road Transport Act (11 of 1951) violated the fundamental rights of private citizens guaranteed under Art. 19 (1)(g) of the Constitution, and was protected by cl. (6) of Art. 19. The question fell to be considered on the basis of the article, , as it stood before it was amended by the Constitution (First Amendment) Act, 1951. This Court held that it did offend the fundamental right. In that context, this Court made the following observations: It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case, the amendment of the Constitution, which come later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed." I do not see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, no question of infringing the fundamental right would arise. There is no force in this argument. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner.But, in view of the fact that the period for which licence was asked had run out, the application in respect thereof has become infructuous and, therefore has to be dismissed.

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

Explanation:
0[ds]In that sense we have no hesitation in holding that the State Trading, Corporation might be a "special" agency or a channel for the purpose of enabling the country to maintain and foster the continuity of its trade in the commodity by ensuring exports in adequate quantity and of proper quality. In this state of circumstances the elimination of the class to which the appellant belongs, viz., newcomers who had no previous experience of the export trade during the basic year or earlier was the result of enforcing a permitted method of control and a type of restriction which it was legally competent to be imposed under 6 (h). In the case of other commodities, "newcomers" have been granted a quota. That however naturally depended upon the nature of the trade, the nature of the export market and other factors which it is the province of government to take into account. Having stated this legal position, we would hasten to add that it was not the view of the Government that the export trade in manganese ore was such into that that newcomers could never be permitted trade is clear from the several, policy-statements themselves in which, from time to, time, they conveyed an assurance that the allotment of quotas to the "newcomers" was under consideration. In the case of a commodity like manganese ore for which there is not much of an internal market the denial of a right to any group or we shall add, to any individual to export would in effect affect him adversely forcing him to sell to others who have been given such a facility. Persons like the app- ellant were being fed on hopes of some relief to them and it was a case not merely of hope deferrer making the heart sick, but of dashed hopes that led the appellant to approach. the Court for relief. Though we consider that the appellant has no legal right to the relief that he sought, his grievance is genuine and it would be for the Government to consider how beat the interest of this class should be protected and it is made worth their while to win the ore so as to expand, foster and augment the export trade in this valuable commodity.Reverting to the legal points raised in the appeal, it appears cleat to us that on the premises (1) that s. 3 of the Import & Export Control Act, 1947 is a valid piece of legislation, (2) that cl. 6 (h) of the Export Control Order is within the rulemaking power of the Central Government and is constitutional, there is no escape from the conclusion that no legally enforceable right of the appellant has been violated for which he could seek redress; under Art. 226 of thethis view it is unnecessary to consider whether the appellant having prayed primarily for the issue of a writ of mandamus to direct the licensing authorities to consider his application for an export licence for the half year current at the date of the petition , without reference to the terms of the impugned notifications and policy statement" and that half year having long ago gone by, he could be granted any relief by the High Court on his petition or by this Court on his appeal. It is possible that in such circumstances a person situated like the appellant might be entitled to a declaration as regards the validity of the restrictions imposed which continue to be in force even beyond the half year or year to which the licence relates. It is however unnecessary to pronounce upon this question which does not really arise for consideration in view of the conclusion that we have reached that the restrictions and control to which the trade has been subjected are legal and justified by the Act and the Rules framed there under.