- (1.) The three persons who have filed this petition under Art. 32 of the Constitution for enforcement of their fundamental rights conferred by Art. 14, Art. 19(1)(f) and Art. 19(1)(g) thereof are dealers in imported copper and carry on their business at Jagadhri in the State of Punjab. On different dates prior to April 3, 1958, they entered into contracts of purchase of copper with importers at Bombay and Calcutta, Before, however, they could take delivery from the importers the Government of India issued on 2-4-1958, an order called the "Non-ferrous Metal Control Order, 1958" hereafter referred to as "the order" in exercise of its powers under S. 3 of the Essential Commodities Act (Act X of 1955) - referred to hereafter as "the Act". In this order "non-ferrous metal" was defined to mean "imported copper; lead, tin and zinc in any of the forms specified in the Schedule of the order." The Order was from the very beginning made applicable to imported copper. The price was controlled by Cl.3 of the Order which provides in its first sub-clause that "no person shall sell or offer to sell any non-ferrous metal at a price which exceeds the amount represented by an addition of 3 1/2 p. c. to its landed cost," and in its second sub-clause that "no person shall purchase 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-Cl. (i)." Clause 4 is designed to regulate the acquisition of non-ferrous metal by permit only and provides that "no person shall acquire or agree to acquire any non-ferrous metal except under and in accordance with a permit issued in this behalf by the Controller in accordance with such principles as the Central Government may from time to time specify." Clauses 5 and 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., Cl. 7 confers powers on the Controller to enter and search any premises in order to inspect any book or document and to seize any non-ferrous metal in certain circumstances. This Order was published in the Gazette of India on 2-4-1958. No principles specified by the Central Government in accordance with Cl. 4 of the Order were however published either on this date or any other date. Certain principles were however specified by the Central Government in a communication addressed by the Deputy Secretary to the Government of India dated 18-4-1959, to the chief Industrial Adviser to the Government of India, New Delhi. The relevant portion of this communication is in these words: "The following principles shall govern the issue of permits by the Controller : (1) In respect of the scheduled industries under the Control of the Development Wing, the Controller will determine the 6 monthly requirements of actual users based on their production in the year 1956; (2) In the case of small scale industries the Chief Controller of Imports and Exports on the certificate of the State Directors of Industries will inform the Controller of the quantities that the units would be entitled to and thereupon the Controller will make such quantities available to these units from time to time, (3) The Controller shall normally release one month's requirements at a time to the consuming units and the permit shall be valid for a period of two months; but if heavy imports are reported the Controller shall have the discretion to issue stocks in larger quantities."
(2.) The position immediately on the issue of the Order on 2-4-1958, thus was that no person could buy or sell imported copper at a price above the landed cost plus 3 1/2 p. c. thereof and that no person could acquire or agree to acquire such copper except under a permit issued by the Controller. In issuing such permits the Controller was to be governed by such principles as the Central Government would specify. After the principles were specified in the letter of the 18th of April, the Controller could no longer issue any permit to a dealer and could issue permits only to certain manufacturers as indicated in paras. 1 and 2 of the letter.
(3.) In view of the requirement of Cl. 4 of the Order the petitioners applied on April 14, 1958, for permits to enable them to the delivery of the copper in respect of which they had entered into contracts with different parties. Though no formal order appears to have been passed on these applications, it is not disputed that the applications for permits were refused and no permits were issued to these petitioners. The main contention of the petitioners is two-fold. First it is said that Cl. 4 of the Order read with the principles specified in the letter of the 18th April violates the right conferred on them as citizens of India by Art. 19(1)(f) of the Constitution of India to acquire property and also the right conferred by Art. 19(1)(g) to carry on trade, that these violations are not within the saving provisions of Art. 19(5) and 19(6) of the Constitution and therefore are void, Secondly it is said that the fixation of the price at the landed cost plus 31/2 p.c. as the maximum also abridge the rights conferred on them by Arts. 19(1)(f) and 19(1)(g) of the Constitution and that this also is not saved by the provisions in Arts. 19(5) and 19(6) and so are void. A further contention is that the principles specified being discriminatory in nature as between the manufacturers and dealers in copper have resulted in violating the right to equal protection of laws to the petitioners and thus infringe the rights guaranteed by Art. 14 of the Constitution. As regards the principles specified in the letter of the 18th April it was further contended that as they form an integral part of the "Order" by which alone the Central Government can regulate the distribution and supply of essential commodities under S. 3 of the Act it was necessary for them to be notified in the Official Gazette as required by its 5th sub-section and to be laid before both Houses of Parliament as required by its 6th sub-section, and as these requirements were not fulfilled, the principles have no legal force, Alternatively it was contended that if the principles are considered not to form part of the order made by the Central Government the regulation in so far as it was by these principles, was outside the Act as S. 3 empowers the Central Government to provide for regulating or prohibiting the production and supply of essential commodities and trade and commerce in essential commodities by an order only and not otherwise.;