Judgment:
N. Pandey, J.
1. This petition under Articles 226 and 227 of the Constitution is for an appropriate writ, quashing the Gazette notification, contained in Bihar Gazette Extraordinary dated 11-10-1982 (Annexure-2), whereby, the State Government in exercise of its power conferred upon it under Sections 9(1)(a) and 74(b) of the Indian Stamp Act, hereinafter called as 'the Act', prescribed that functions of 'deed writing' and 'trade of stamp vending' cannot be performed by the same person.
2. The petitioners, who are stamp vendors at the District Collectorate, Patna, have alleged that restriction imposed by the impugned notification is arbitrary and unreasonable, affecting their right of profession and trade, guaranteed under Article 19(1)(g) of the Constitution, Before examining the crucial question whether State Government had competence to issue the impugned notification, restricting the mode and conduct of sale of stamp, in the manner enumerated therein, and whether such a restriction is unreasonable to the right conferred by Sub-clause (g), it will be advisable to notice some of the relevant provisions of Sections 9 and 74 of the Act and Article 19(1)(g) and 19(6) of the Constitution hereunder:
Section 9, Power to reduce, remit or compound duties.-- (1) The Government may by rule or order published in the Official Gazette,--
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(2) In this section, the expression 'the Government' means-
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(b) save as aforesaid, the State Government.
Section 74. Power to make rules relating to sale of stamps.-- The State Government may make rules for regulating-
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(b) the persons by whom alone such sale is to be conducted, and
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Article 19. Protection of certain rights regarding freedom of speech, etc.-- (1) All citizens shall have the right-
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(g) to practise any profession, or to carry on any occupation, trade or business.
But as per Clause (6) of Article 19, nothing in Sub-clause (g) will prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
3-4. Mr. Tarakant Jha, Senior Counsel appearing on behalf of the petitioners contended that the restriction imposed by the Government in terms of the impugned notification is arbitrary and unreasonable. If such a restriction is allowed to remain, right of the petitioners to carry on trade and business of deed writing and stamp vending would be frustrated. Therefore, such restriction has to be declared unreasonable, affecting constitutional mandate, as provided under Article 19(1)(g) of the Constitution.
5. Mr. Jha further contended that no material has been shown on behalf of the Government to justify the issuance of the impugned notification, restricting the right of the petitioners to carry on their occupation and trade of stamp vending and deed writing. He contended that by means of a subordinate legislation the State cannot defeat a right, conferred on a citizen under the parent Act.
6. From a bare reference to the provisions of Section 9 read with Section 74 of the Act, it would appear that the State Government has full competence to make Rules to regulate supply and sale of stamp or stamp papers by prescribing mode and procedure, conducted by persons through whom sale is to be conducted.
7. This is not in dispute that petitioners were already granted stamp vendors licence at the relevant time. There is no grievance that by virtue of the impugned notification, petitioners have been restrained from carrying on their trade and business of stamp vending. Only restriction imposed by the impugned notification, is that 'trade and business of stamp vending' and 'deed writing' cannot be, carried out by the same person. Article 19(6) prescribes that nothing in Sub-clause (g) shall prevent the State from making any law imposing, in the interests of general public, reasonable restrictions on the exercise of the right, conferred by the said sub-clause. One of the tests is that limitation imposed on a person in enjoyment of the right should not be arbitrary or excessive, beyond what is required in public interest. Reference in this regard can be made to a decision of the Apex Court in the case of R. S. Makashi v. I. M. Menon, AIR 1982 SC 101 and Municipal Corporation, Ahmedabad v. Jan Mohammad, AIR 1986 SC 1205.
8. It is well known whenever a Court is called upon to examine a complaint that restriction imposed on the freedom to carry on trade is unreasonable, one of the relevant factors to be considered is whether such a restriction was in public interest. A bare reference to the impugned notification would reveal that Government having noticed large scale of irregularities, fraud and malpractices in the trade and business of stamp vending, imposed such a restriction in public interest. It is wrong to submit that impugned notification is arbitrary and unreasonable.
9. In the case of Mithilesh Garg v. Union of India, AIR 1992 SC 443, the Apex Court while examining the scope of Article 19(6) of the Constitution to impose restriction upon the right of a citizen as provided under Sub-clause (g) of Article 19, held that a policy likely to help in the elimination of corruption and favouritism in the process of granting permits, cannot be said unreasonable.
In support of the aforesaid views, a reference can also be made to the case of Sukumar Mukherjee v. State of Bengal, AIR 1993 SC 2335. In this case the validity of West Bengal State Health Service Act, 1990 was challenged. One of the grounds was that prohibition on private practice of the doctors of the West Bengal Medical Education Service imposes an unreasonable restriction on the fundamental right to practice, guaranteed by Article 19(1)(g) of the Constitution. The Apex Court while rejecting the contention, held that Article 19(1)(g) does not give a citizen a right to carry on any profession irrespective of the fact that he had accepted restriction on such a right. It is not always necessary for the State to invoke provisions of Clause (6) to impose restriction on the exercise of the right in the interest of general public. In other words, the restriction which is in the general public interest, cannot be held unreasonable to the right of a citizen, conferred under Sub-clause (g).
Similar view was expressed by the Apex Court in the case of Systopic Laboratories (Pvt.) Ltd. v. Prem Gupta, AIR 1994 SC 205. In the instant case, a notification under Drags and Cosmetics Act, imposing complete prohibition on manufacture and sale of the fixed dose combination of a particular medicine was under challenge. It was discovered that doses of concerned medicine, when administered for longer period, were reported to cause more harm than good to the patients. The Court held that manufacture of such a medicine was not found in the public interest. Therefore, a restriction to impose ban on manufacture and sale of such a medicine was not unreasonable.
10. Therefore, having regard to the facts, noticed above. I hold and conclude that impugned notification was in the public interest and, therefore, not unreasonable. I also hold that the State Government had full competence in its power conferred upon ii under the provisions of the Indian Stamp Act. Accordingly, I find no merit in this case, therefore, the same is hereby dismissed. But in the circumstances of the case, there shall be no order as to costs.
A.K. Ganguly, J.
11. I agree.