D.N.Sinha, J. - (1.) The petitioners in this case are three in number. They are owners of cattle viz, cows and buffaloes. It is stated in the petition that for nearly 100 years they have been carrying on business in the sale and purchase of cattle and supplying milk in different parts of the city of Calcutta, within the area known as "Saudagarpatty-Cossipur-Chitpur" area. The West Bengal Cattle Licensing Act (West Bengal Act I of 1959) (hereinafter referred to as the "said Act") came into operation on the 20th March, 1959. Under the provisions of Sub-section (2) of Section 1 of the said Act, it was to come into force in such urban areas and with effect from such dates as the State Government may by notification in the Official Gazette, appoint. On 25th June, 1960 a notification was published, in an Extra ordinary issue of the Calcutta Gazette, being Notification No. 3406-Milk, whereby 15th July, 1980 was fixed as the date on which the said Act should come into operation in ward Nos. 3, 4, 5, 62, 63 and 64 referred to in Schedule V of the Calcutta Municipal Act, 1951. This covers the area to which the petitioners carry on their trade and business. An appeal was preferred to the Chief Minister of the State of West Bengal but it has been rejected. It is not clear from the pleadings as to why an appeal was preferred before the Chief Minister, because under the said Act, "Appellate Authority" means an Appellate Authority as appointed by notification for any urban area or part thereof in which the said Act has come into force. There is nothing to show that the Chief Minister has been appointed as the "Appellate Authority." I might also mention that in the petition it has been stated that in the area in which the petitioners 'carry on business, a scheme has been framed under the Calcutta Improvement Act, 1911 and the petitioners were served with notice under section 45 of the said Act, as the entire area known as "Saudagarpatty" is going to be acquired under a General Improvement Scheme No. LXXXVII. It has been stated that the petitioners were about to file their claim for compensation before the appropriate authority and it was in order to present them from doing so that action is sought to be taken under the said Act and the Rules framed thereunder. It is difficult to understand how the petitioners' claim to compensation would be affected. However, at the hearing of this application mo such point was pressed. Mr. Chowdhury appearing on behalf of the petitioners has taken before me a constitutional point and it is as follows : He argues that the said Act and the rules made thereunder impose a restriction on the petitioner' right and/or freedom to carry on their trade and/or business within the territory mentioned above, in violation of the provisions of Article 301 of the Constitution, and is not saved by Article 304 (b) inasmuch as the bill which resulted in the said Act, did not have previous sanction of the President before it was introduced or moved in the State Legislature of West Bengal. Nor is the said Act saved by assent obtained subsequently under Article 255. Before examining the constitutional provisions mentioned above, it will be convenient at this stage to look at the Act and the rules made thereunder. The said Act is stated to be an "Act to regulate the keeping of cattle in urban areas." The preamble states that the enactment was made because at was expedient in the interest of public health and sanitation, to regulate the keeping of cattle in urban areas, and for that purpose to provide for the licensing of cattle. Under section 1 (2) it is to come into force in such urban areas and with effect from such dates as the State Government may, by notification in the Official Gazette, appoint. Section 3 provides that after the expiry of a period of six months from the date on which the Act conies into force in any urban area, no person shall keep any cattle in such area except under a valid license. Under Section 4, there shall be two classes of licenses. In the first class, a license is granted to a householder in respect of cattle kept in his own premises, primarily for the consumption of the milk by himself or by members of his family and for the sale of surplus, if any, not exceeding five seers on any one day. In the second class a license is granted to any person in respect of cattle kept in any premises or place for any purpose save as is the subject-matter of a license of the first class above mentioned. These licenses are respectively called licenses relating to Class A and Class B. Section 5 provides that any person intending to have a license shall apply to the licensing authority in the prescribed manner and the licensing authority may thereafter grant a license under this Act or may, after recording reasons therefor, refuse the application for a license. Section 6 provides that where the Licensing Authority has reason to believe that a person to whom a license has been granted has violated or failed to comply with the conditions of the license or any provisions of the said Act or the rules made thereunder, he may, after affording in the prescribed manner an opportunity to the licensee to show cause, cancel the license or refuse to renew it. Section 7 provides for an appeal to the Appellate Authority, which means an appellate authority appointed by notification for any urban area or part thereof, where the Act has come into force. Section 8 provides that no order made by, and no proceedings had before, a Licensing Authority or an Appellate Authority shall be called in question in any Civil or Criminal Court. Section 9 provides that the State Government may, at any time after the date on which the said Act had come into force in any area, declare, by notification, such area or any part thereof as a prohibited area if it thinks fit so to do in the public interest. No Class B license shall be issued in respect of any premises or place within a prohibited area and any such License already issued or in force in respect of any premises or place in such area shall stand cancelled on the expiry of six months from the date when the area has been declared as a prohibited area. Section 10 empowers the Licensing Authority or any officer authorised by him, by an order in writing, or any police officer of and above the rank of a Sub-Inspector, to enter or inspect at any time between sunrise and sunset, any premises or place situate in any area in which the Act has come into force, in order to view any cattle or the arrangements for keeping cattle, in respect of which an application for a License had been made or a license had been issued; or in order to ascertain if any cattle are being kept in violation of the conditions of a license or the provisions of the said Act and the rules made thereunder. Section 11 grants the power of seizure where an offence has been committed under the said Act. Section 12 deals with the penalties. Section 13 gives power to the State Government to make rules for carrying out the purposes of the said Act. Section 14 gives power to the State Government to exempt any institution, authority or person from the operation of the said Act. The said Act was passed by the West Bengal Legislature and the assent of the Governor was obtained, but it is admitted that the Bill was not placed before the President nor his assent obtained at any subsequent time, [n exercise of the power conferred by Section 13 of the said Act, rules have been promulgated, known as the "West Bengal Cattle Licensing Rules, 1960" (hereinafter referred to as the "said Rules"). Rule 3 provides that the nature and type of shed to be provided for keeping cattle under a license shall be as specified in Appendix I. Rule 4 prescribes the form for applications in respect of the issue of licenses under the said Act. Upon receipt of the application and the fee prescribed therefor, the licensing authority is empowered, either to scrutinise the same or hold an inspection of the shed in order to find out whether it conforms to the specifications in Appendix I. Sub-rule (3) of Rule 4 runs as follows: "After such scrutiny, and after such inspection (if any), if the Licensing Authority is of opinion that the shed provided for cattle conforms to the specifications in Appendix I and there is no legal objection to the grant of the license, the Licensing Authority shall direct the applicant in writing to produce the cattle for identification marks being made on their bodies before such officer and on such date or dates and at such place or places as may be specified in the direction and the applicant shall comply with such direction. The Licensing Authority shall thereupon grant the license." Section 10 provides that the Appellate Authority shall give the appellant an opportunity of being heard before it passes any order. The specifications in Appendix I prescribe the nature and type of shed to be provided for cattle. There are different headings of cattle namely. Adult, Young Stock, Calves and Breeding Bulls. Detailed specifications are prescribed for the minimum floor space to be provided for housing each head of cattle, as also for feeding-passage, manger or trough, gutter,-dung channel, calf-pens, bull-pens, calving-box etc., and lays down specifications for the height and roof of the shed, laying down that under no circumstances thatched or bamboo structures are to be used for the construction of any part of the shed. It has further provided that the flooring of the shed shall be either paved or of cement concrete with proper drainage. There are provisions also for light and ventilation. The conditions of the licence lay down that the licensee shall not use, or permit the use of, such sheds for any other purpose than the housing of cattle. In order to understand the background in which the said Act came to be passed, and the evil which it was intended to remedy, it is permissible to look into the statement of objects and reasons, the relevant part whereof runs as follows : "It is estimated that about 40,000 milch animals are kept in Calcutta and suburbs in most unsatisfactory and unhygienic conditions, often in ill constructed cattle sheds popularly known as Khatals, Maintained in insanitary conditions, where flies and germs of different diseases breed freely, the Khatals create serious problems of public health. Because of dearth of space in the city of Calcutta, the Khatals are often located in highly congested areas. There are no arrangements for gutter-drains or for other sanitary measures in such Khatals with the result that stench from these Khatals causes great inconvenience to the people of the area and such Khatals are often the breeding grounds for various diseases like small pox and cholera that rage in epidemic form in Calcutta. The milk of animals kept and milked under such unhygienic conditions is contaminated or is likely to get contaminated with the result that they would have serious effect oa the public health of Calcutta. They, therefore, present a serious public health problem in the city. All these considerations clearly indicate, the necessity of regulating the keeping of cattle in Khatals under hygienic and sanitary conditions. The existing legal measures have not however been found adequate for this purpose. The Calcutta Municipal Act or the Bengal Municipal Act provides for licensing of Khatals, but there is no control over milch animals maintained in unhygienic conditions for domestic milk supply. All such Khatals are not also liceused at all. As a result, whenever milch animals are seized by Corporation from unlicensed premises, they are certified often by influential public men, as animals maintained for domestic milk supply. It is, therefore, no wonder that the Calcutta Corporation's drive for removing milch animals from unlicensed premises has not been successful. Government of West Bengal have, therefore, decided to assume power by legislation to regulate the keeping of cattle in urban areas for:- (i) better regulation of the conditions under which milch cows and buffaloes should be kept in Calcutta as defined iu the Calcutta Municipal Act, 1951, or within any municipality as defined in the Bengal Municipal Act, 1932 or within Chander-nagore as defined in the Chandernagore Municipal Act, 1955, or auy part or parts of such area and (ii) prohibiting the keeping of milch animals without license in Calcutta and its suburbs and also any other urban areas."
(2.) I now come to the provisions of the Constitution. Part XIII of the Constitution deals with "trade, commerce and intercourse within the territory of India". Article 301 provides that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 confers right upon Parliament to make laws imposing restrictions on the freedom of trade, commerce or intercourse between one State and another or within one part of the territory of India or within any part of the terriloiy of India as may be required in the public interest. Article 303 prohibits any preference or discrimination between one State and another. Article 304 (b) provides that notwithstanding anything contained in Article 301 or Article 303, the Legislature of a State may by law impose such reasonable restrictions on the freedom of trade, commerce and intercourse with or within that State as may be required in the public interest. provided that no Bill or amendment for the purposes of Clause (b), shall be introduced or moved in the Legislature of a State without the previous sanction of the President. Article 255 (c) which appears in Part XI of the Constitution provides that no Act of Parliament or of a Legislature of a State and no provision in any such Act shall be invalid by reason only that some recommendation or previous sanction required by the Constitution was not given, if assent to that Act was given by the President. It is not disputed that if the assent of the President is required in respect of the said Act, it could be obtained even now.
(3.) The argument of Mr. Chowdhury is briefly as follows : He argues that his clients the petitioners, carry on trade and commerce within the area known as "Saudagarpatty" in Calcutta :in the purchase and sale of cattle as also in the sale of mitk. According to him the said Act and the Rules made thereunder have restricted the petitioners' freedom of trade, commerce and intercourse guaranteed under Article 201 of the Constitution. He points out that it may well be argued that the restrictions are reasonable restrictions, but in that case under Article 304 (b) such reasonable restrictions could be imposed by the State Legislature, provided that before introducing the Bill in the State Legislature the previous sanction of the President had been obtained. He points out that such assent could be obtained even now under Article 255 (c), but no such previous sanction was obtained to the Bill nor subsequent assent of the President has been obtained. Hence, the Act and the rules framed thereunder are in violation of the constitutional guarantee embodied in Article 301 and as such are void, and are not saved by Article 255 (c). Both sides have drawn my attention to two decisions of the Supreme Court which will now have to be considered. The first case to be considered is Atiabari Tea Co. Ltd. v. State of Assam. The facts in that case were as follows : The appellants were growers of tea in West Bengal or in Assam and carried their tea to the market in Calcutta from where it was sold for consumption in the country or exported for sale out of the country. The bulk of tea produced and manufactured was carried out of Assam either for internal consumption in India or for export abroad. Besides the tea carried by rail, a large quantity of tea was carried by road or by inland waterways from Assam to Bengal and in some cases from one part of West Bengal to another part of the same State through inland waterways, only a few miles of which passed through the territory of Assam. The Assam Legislature passed an Act known as the "Assam Taxation (on Goods earned by Roads or Inland waterways) Act (Assam Act XIII of 1954) which came into force on 1st June, 1954. The purpose of the Act was to levy taxes on certain goods carried by road or inland waterways in the State of Assam. The appellants challenged the validity of the Act, urging that it violated the provisions of Article 301 of the Constitution. It was held by the majority judgment delivered by Gajendragadkar J., (as he then was) that the Act violated the provisions of Article 301 and since it did not comply with the provisions of Article 304 (b) it was ultra vires and void. By a dissenting judgment, Sinha C.J. (as he then wag) held that the Act did not contravene Article 301, because the Act was a taxation statute simpliciter and freedom conferred by Article 301 did not mean freedom from taxation laws simpliciter but only from the erection of trade barriers, tariff walls and imposts which had a deleterious effect on the free flow of trade, commerce and intercourse. The impugned Act had been passed by the Assam Legislature in order to provide for the levy of a tax on certain goods carried by road or inland waterways in the State of Assam. The principal ground on which the vires of the Act was challenged was that it had violated the provisions of Article 301 of the Constitution, and since it did not comply with the provisions of Article 304 (b) namely, that the assent of the President had not been obtain-ed, it was ultra vires and void. On behalf of the respondents it was argued that taxing laws stand by themselves and are governed by the provisions contained in Part XII of the Constitution and no provision of Part XIII can be extended to them. Alternatively, that the provisions of Part XIII should be applied only to such legislative entries in the 7th Schedule which deal with trade, commerce and intercourse, Gajendragadkar J., (as he then was) recalled the political and constitutional background in which Part XIII of the Constitution was enacted. He re-called that during the British rule, part of India was governed by Indian princes, some of whom purported to exercise legislative powers of imposing taxes in respect of trade, commerce, etc., so that in effect customs barriers were erected at several places in India. It was principally to combat this state of affairs that section 297 of the Government of India Act, 1935 and Part XIII of the Constitution were enacted. The learned Judge said as follows : "The main object of Article 301 obviously was to allow free How of the system of trade, commerce and intercourse throughout the territory of India...free movement and exchange of goods throughout the territory of India is essential for the economy of the nation and for sustaining and improving living standards of the country.";