Jharkhand High Court
Shibu Prasad vs The State Of Jharkhand Through The Chief ... on 14 September, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-1327 of 2018
Shibu Prasad, Director of Budha Smriti, Mining Infracon Pvt. Ltd.
having its office and residence at B.N. Sahay Lane, Manpur,
Buniyadganj, District- Gaya (Bihar)
...Petitioner
-V e r s u s-
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Ranchi
2. The Principal Secretary, Department of Mines and Zoology, Government
of Jharkhand, Ranchi
3. The Deputy Commissioner, Chatra
4. The District Mining Officer, Chatra
.... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Ranjan Kumar Singh, Advocate For the Respondents :- Mr. J.F.Toppo, S.C.(L&C) Order No.-07 Dated: 14.09.2018 The present writ petition has been filed for quashing the order contained in memo no. 71 dated 18.01.2018 issued by the Deputy Commissioner, Chatra (respondent no. 3) whereby the transportation of stone (chips) and sand from the District of Chatra to the place outside the State of Jharkhand has been prohibited.
2. The factual background of the case as stated in the writ petition is that the petitioner being the Director of Budha Smriti Mining Infracon Pvt. Ltd. is dealing in the trading of stone dust, stone (chips) and stone and his place of business is at Nagar, Huntarganj, Chatra. The petitioner was granted license by the competent authority for the period from 8.07.2017 to 31.03.2020. However, the respondent no.3 vide memo no. 71 dated 18.01.2018 issued an order prohibiting transportation of stone (chips) and sand from the district of Chatra to the place outside of the State of Jharkhand.
3. The learned counsel for the petitioner submits that putting restriction on transportation of stone (chips) and sand beyond the State of Jharkhand is arbitrary and also in violation of the provisions of Article 301 of the Constitution of India which mandates free trade 2 and commerce throughout the territory of India and as such imposing such restrictions by the respondent no. 3 is unconstitutional. It is further submitted that due to imposition of the said prohibitory condition, the petitioner's trade has been seriously affected and materials are lying dumped. The petitioner being the license holder is entitled for free trade and commerce throughout the territory of India.
4. Per contra, the learned counsel for the respondents submits that after the grant of trading licence, the petitioner had been dispatching the stone chips outside the State and requirement of stone inside the district of Chatra was ignored resulting into slow progress of construction works under various government schemes being executed by different agencies. It is further submitted that the respondent no. 3 is well within its jurisdiction to issue the impugned letter in larger public interest. The petitioner has alternative remedy of preferring appeal before the appellate authority i.e Mines Commissioner and thus the present writ petition is not maintainable.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner's company has been granted license for trading of the stone, stone dust and stone (chips). However, in view of the impugned memo no. 71 dated 18.01.2018, issued by the respondent no.3, he has been restricted from transporting the materials outside the State of Jharkhand. The contention of the petitioner is that in absence of any legislation by the State of Jharkhand under Article 304 (b), the said restriction is violative of Article 14, 19 (1) (g) as well as Article 301 of the Constitution of India because the petitioner has every right to trade and commerce anywhere in India and the same cannot be restricted by any executive instruction. On the contrary, the learned counsel for the respondents has tried to justify the impugned letter by contending that due to transportation of the stone (chips) and sand outside the State of Jharkhand, the local requirement is not appropriately met.
6. I have perused the judgment of the learned Single Judge of this Court dated 27.02.2013 rendered in the case of Panchanand Choudhary Vs. The State of Jharkhand & Ors. (W.P.(C) No. 3 170 of 2012). The issue involved in the said writ petition was that in the year 2011, the Deputy Commissioner, Godda by an executive order, imposed similar condition for allotment of sand ghats in the district of Godda which was challenged by one of the settlees namely Panchanand Choudhary. The learned Single Judge while deciding the said case observed as under:
"I have heard learned counsel for the parties at length and having gone through the relevant materials on record and judgments relied upon by the parties. On the face of it, the notice dated 14.06.2011 completely prohibiting transportation of sand beyond the District of Godda is arbitrary and also in violation of the Constitutional Provisions guaranteed under Part-III and under Article 301 of the Constitution of India as it prohibits free trade, commerce and intercourse within the territory of India. Petitioner is entitled to challenge if any of the provisions of the NIT which are in the teeth of the Constitutional Provision or fundamental rights under Part III of the Constitution as the fundamental rights are enshrined for the benefit of an individual and are enacted in public interest or on grounds of public policy. The aforesaid legal position has also been held by Hon'ble Supreme Court as reported in the case of Basheshar Nath Vs Commissioner of Income Tax Delhi & Rajasthan & Anr. (supra.). In that view of the matter such prohibitory conditions imposed by the respondents are not acceptable and the conditions imposing totally prohibition on the lifting and loading of sand from Godda to another place is wholly unsustainable in law."
7. The learned Division Bench of this Court, vide order dated 18th June, 2013 also dismissed L.P.A No.132 of 2013 preferred by the respondent- State of Jharkhand against the order passed in W.P.(C) No.170 of 2012. The relevant part of the said order is quoted hereinunder:
"The learned Single Judge has considered various judgments of the Hon'ble Supreme Court and thereafter reached to the conclusion that part of the condition which prohibits free trade, commerce and intercourse within the territory of India is violative of Article 301 of the Constitution of India. So far as other conditions are concerned, the learned Single Judge directed the State authorities to look into the same by ensuring reasonable balance in the use of machinery and that of manual labourer in excavation of sand so as to protect the interest of the local labourer. This finding given by the learned Single Judge has not been challenged by either of the parties.
Be that as it may, regarding the issue which has been challenged by the appellant-State, we are of the considered opinion that learned Single Judge had considered all aspects of the matter in detail and we are in full agreement with the view expressed by the 4 learned Single Judge. We do not find any merit in the L.P.A."
8. Article 301 of the Constitution of India provides that subject to the other provisions of Part XIII, the trade, commerce and intercourse throughout the territory of India shall be free. Further, Article 304 provides for the restrictions that can be imposed by the legislature of a State on trade, commerce and intercourse among States. Clause (b) of Article 304 provides that notwithstanding anything in Article 301 or Article 303, the legislature of a State may by law, impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest. However, 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. It is, thus, clear that before imposing any restriction on the trade, commerce and intercourse on the ground of public interest, there must be a law framed by the State legislature, which is to be introduced or moved after the previous sanction of the President of India.
9. In the case of State of Bihar and Ors. Vs. Harihar Prasad Debuka, reported in (1989) 2 SCC 192, the Hon'ble Supreme Court of India has held as under:
"16. In Indian Cement v. State of A. P., AIR 1988 SC 567 it was held that the restriction provided for in Art. 301 can within the ambit be limited by law made by the Parliament and the State legislature and that no power is vested in the executive authority to act in any manner which affects or hinders the essence and thesis contained in the scheme of Part XIII of the Constitution which is against creation of economic barriers and/or pockets which would stand against the free flow of trade, commerce and intercourse."
10. It is not the case of the respondents that any law has been framed by the legislature of Jharkhand after following the procedure prescribed under Article 304 of the Constitution of India so as to restrict the transportation of stone (chips) and sand for the district of Chatra only, rather it appears that the impugned letter has been issued on the basis of the direction of the Deputy Commissioner, Chatra in exercise of its executive power. It is well-settled that where a statute requires doing a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performances are necessarily forbidden.
511. In view of the aforesaid discussions, I am of the considered view that the impugned condition imposing restriction on transportation and sale of sand as well as stone (chips) only within the District of Chatra vide memo no. 71 dated 18.01.2018 issued by the respondent no. 3 is illegal and without jurisdiction and as such the same is hereby quashed.
12. The writ petition is accordingly allowed.
(Rajesh Shankar, J.) Ritesh/N. A.F.R