Narendra Kumar and Others V The Union of India and Others 1960 AIR 430, 1960 SCR (2) 375

BACKGROUND

The petition was filed under Article 32 of the Indian Constitution for the enforcement of Fundamental rights conferred by Articles 14, Article 19(1)(f), and 19(1)(g). There were petitioners who had filed the petition, who used to deal with ‘imported copper’ and carried on their business at ‘Jagadhri’ in the State of Punjab. They had entered into contracts on different dates, for the purpose of purchasing copper. But before they could take delivery, the Government of India in the exercise of its power under the Essential Commodities Act, 1955, issued “Non-Ferrous Metal Order”. This order was made applicable to the imported copper.It was contended by the petitioners that it violates Article 19(1)(f) and 19(1)(g). It was also contended that, it violates Article 14 of the Indian Constitution.

FACTS

The petitioners entered into contract of purchase of copper with the importers at Bombay and Calcutta, but before they could take delivery from the importers, the Government of India, in the exercise of its powers under Section 3 of the Essential Commodities Act, 1955, issued, the Non-ferrous Metal Control Order, 1958 on April 2, 1958.

The prices were controlled by Clause 3 of the said Order which provided that “no person shall sell or purchase any non-ferrous metal at a price which exceeded the amount represented by an additional of 31.2% to its landed cost”, and in the 2nd sub-clause that “no person shall purchase or offer to purchase from any person non-ferrous metal at a price higher than at which it is permissible for that other person to sell to him under sub-clause. While under Clause 4 “no person shall acquire any non-ferrous metal except under and following a permit issued in this behalf by the controller following such principles as the Central Government may from time specify”.  

Clauses 5 and Clause 6 of the order made it obligatory on the importers to notify quantities of non-ferrous metal imported and to maintain certain books of account, while the last clause i.e. clause 7 confers powers on the Controller to enter and search any premises to inspect any book or document and to seize any non-ferrous metal in certain circumstances.

However, neither such principles were published in the Gazette nor laid before the Parliament. Certain principles governing the issue of permitted by the Controller were specified by the Deputy Secretary to the Government of India dated April 18, 1958,  to the  Chief Industrial Adviser, under which the Controller could issue permits only to certain manufacturers and not to any dealer.

On April 14, 1958, the petitioners applied for permits to enable them to take delivery of the copper in respect of which they had entered into contracts, but the applications to grant permission were refused.

Thereafter, the petitioners filed a petition under Article 32 of the Indian Constitution challenging the validity of Article 14, Article 19(1)(f), and Article 19(1)(g) of the Indian Constitution.

ISSUES

• Whether The Non-Ferrous Metal Order, 1958 violates the Fundamental Rights under Article 14?
• Whether The Non-Ferrous Metal Order, 1958 violates the Fundamental Rights under Article 19(1)(f)?
• Whether The Non-Ferrous Metal Order, 1958 violates the Fundamental Rights under Article 19(1)(g)?
• Whether the clause 4 Non-Ferrous Metal Order, 1958 valid?
• Whether the Non-Ferrous Metal Control Order issued by the Government void?

ARGUMENTS

• PETITIONER
• The Non-ferrous Metal Control Order, 1958 violated their fundamental rights under Article 14, Article 19(1)(f) and Article 19(1)(g) of the Indian Constitution. 
• Respondent
• The Order was valid and that the prohibition of the exercise of a fundamental right must be distinguished from the restriction on the exercise of a fundamental right. 
• The clause 4 of the Order was valid with or without the principles specified by the Central Government.

JUDGMENT

It was also urged by the petitioners that those principles were discriminatory as between the manufacturers and dealers and so violate Article 14 of the Constitution. The Court observed that the difference which distinguishes dealers and manufacturers have a reasonable connection with the object of the legislation. And hence, the Court held that there is no substance in the contention made by the petitioners that the principles violate Article14.

The clause 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read must also be held for the same reason to be a reasonable restriction.

The word “restriction” in Articles 19(f) and Article 19(g) of the Constitution also includes cases of prohibition. Where a restriction reaches the stage of total restraint of rights special care should taken by the Court to see that, the test of reasonableness is satisfied with facts and circumstances under which the order was made.

REFERENCE

• https://indiankanoon.org
• https://main.sci.gov
• http://www.airinfotech.in/

This Article is written by Sakshi A Mirgal of B.C.Thakur college of Law, New Panvel (University of Mumbai), Intern at Legal Vidhiya.

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