- (1.) THESE are two connected writ applications by Firm Makhulal Ayodhya Prasad (No. 9) and Parmanand (No. 14) under Art. 2 6 of the Constitution by which it is prayed that the Bharatpur State Khas Industries Act of 1943 (hereinafter called the Act) and particularly secs. 9 and 18 of that Act and provisions consequential thereto are ultra vires under Art. 13 of the Constitution read with Arts. 14 and 19 (1) (g ). The case of the applicants briefly is that they are citizens of India and are carrying on trade and business in Khas and manufacturing of Khas essential oils and other products thereof in Bhratpur. Sec. 6 of the Act lays down that no person shall carry on business in Khas or manufacture Khas or Khas essential oil unless specially permitted to do so by the Bharatpur Government. Sec. 18 provides penalties for anyone carrying on business in Khas etc. or keeping in his possession any material, still utensils etc. for the purpose of manufacture of Khas essential oil in contravention of the provisions of the Act or rules or order made thereunder. The applicants' grievance is that steps are being taken, on the ground that they are not specially permitted by the State to carry on this business, to prosecute them under sec. 18 of the Act and to seize their property including Khas and apparatus for manufacture of Khas or Khas essential oil etc. The applicants contend that they have a right to carry on business there subject to reasonable restrictions and that sec. 6 does not provide any reasonable restrictions, but is an arbitrary provision practically forbidding the carrying on business of Khas manufacture or extraction of Khas essential oil in that area. It is also pointed out that there is no such provision with respect to other parts of Rajasthan besides what is now the Bharatpur District and, therefore, Art. 14 which provides equality before the law is also violated.
(2.) THE State Government in their reply apparently justified the provisions of secs. 6 and 18 of this Act. THEir stand seems to be that because of the provision of sec. 4 of the Act, the remaining provisions, particularly secs. 6 and 18 are also violated and they are entitled to act upon them. The Act consists of 24 sections. The first three sections are preliminary and need not be referred to Sec. 4, on which great stress is being laid on behalf of the State, is as follows : - "all Khas producing areas, which are at present under the Revenue Department as well as private owned areas should be given over to the Junglat and Sikar Department. " The applicants have not challenged the validity of sec. 4 of the Act, for they are not concerned with it. They have nothing to do with the lands or with the growing of Khas on those lands. They are business-men who are carrying on business of Khas manufacture or manufacture of Khas essential oil and their case is that sec. 6 which in substance prohibits the carrying on of this business is ultra vires of the Constitution now. It may be mentioned that the Act is of 1943 and its validity has to be examined in view of the provisions of Part III of the Constitution. We are therefore not concerned here in this case with the validity of sec. 4. That may be considered if and when somebody interested in land comes before us. What we are concerned with is sec. 6 of the Act which is in these terms: - "no persons shall carry on business in Khas or manufacture Khas or Khas essential oil unless specially permitted to do so by the Bharatpur Government. " This section, as it stands, in substance forbids the carrying on of this business unless a special permit is granted. There are no rules for granting of this special permit and we are told that as a matter of fact, no special permit was ever granted under sec. 6. We cannot treat sec. 6 as a provision providing for licence fee, for there are no rules laying down that anybody can take to this business of Khas manufacture provided anyone pays a certain small amount as licence fee. In these circumstances, we are of opinion that sec. 6 must be taken to be what in substance is namely a prohibition to anybody in Bharatpur what is now in the State of Rajasthan from carrying on business in Khas manufacture or any production of Khas essential oil. There is no such prohibition in other parts of Rajasthan. We have not been able to understand why there should be this prohibition in Bharatpur, nor has the learned Deputy Government Advocate justified the discrimination on any ground whatsoever. Further, we cannot see why the manufacture of Khas or production of Khas essential oil should be prohibited altogether. We can understand rules and regulations for regulating this business in public interest in the same way as there are rules and regulations for other businesses. But we cannot understand why there should be prohibition of this business altogether. It has not been said that this business is against public morality, nor can it be said that this business is against public health. In these circumstances, we fail to see why a provision, which in substance can be used as a complete prohibition of this business in that area, can be justified now. In the circumstances, we are of opinion that sec. 6 of the Act is ultra vires in view of Arts. 13, 14 and 19 (g) of the Constitution. Secs. 5, 7 and 8 are ancillary sections and we do not say anything about them. Then we come to secs. 9 to 17 which deal with powers and duties of officers. We are of opinion that all these sections so far as they deal with any matter connected with sec. 6 will be invalid to that extent. For example, we may refer to sec. 11 which lays down that certain officers may arrest without warrant any person found committing an offence under sec. 18 and may seize or detain any articles or apparatus connected with Khas industry. This section would be clearly illegal in view of our finding that sec. 6 is illegal. Then we come to sec. 18 which provides penalties in connection with the business of the manufacture of Khas and Khas essential oil etc. This section is also, in our opinion, ultra vires in view of our holding sec. 6 as ultra vires of the Constitution. Similarly that part of sec. 20 which deals with enhancement of punishment for those who have been convicted under sec. 18 is ultra vires. Again, sec. 21 that deals with confiscation of property in case of conviction under sec. 18 is ultra vires. We, therefore, allow the application and hold that secs. 6, 11, 18 and 21 in particular are ultra vires of the Constitution. We also hold that other sections so far as they deal with matters covered by sec. 6 or sec. 18 are also ultra vires to that extent. The State of Rajasthan. the Additional District Magistrate, Bharatpur, Superintendent of Police, Bharatpur and D. F. O. Bharatpur are prohibited from taking any action against the applicant under these sections of the Act. As the application has not been seriously opposed, we pass no order as to costs. .;