w w w . L a w y e r S e r v i c e s . i n



Sanjay Vithal Das Sampat v/s Government of India, Ministry of Commerce & Industry, Central Secretariat, New Delhi, Represented by Its Secretary & Others


Company & Directors' Information:- P G INDUSTRY LIMITED [Active] CIN = L74899DL1993PLC056421

Company & Directors' Information:- INDIA E-COMMERCE LIMITED [Active] CIN = L99999MH1968PLC014091

Company & Directors' Information:- SANJAY CORPORATION LIMITED [Active] CIN = U16009GJ1999PLC035814

Company & Directors' Information:- S H COMMERCE PRIVATE LIMITED [Active] CIN = U51109WB2008PTC121420

Company & Directors' Information:- A. M. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2011PTC168744

Company & Directors' Information:- G S E-COMMERCE PRIVATE LIMITED [Active] CIN = U52100KA2013PTC067567

Company & Directors' Information:- V K COMMERCE PVT LTD [Amalgamated] CIN = U51109WB1984PTC037122

Company & Directors' Information:- P. R. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122333

Company & Directors' Information:- M & P E. COMMERCE PRIVATE LIMITED [Active] CIN = U74300DL1999PTC099198

Company & Directors' Information:- R S COMMERCE PVT LTD [Converted to LLP] CIN = U51909WB1995PTC074372

Company & Directors' Information:- P S COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB1997PTC084487

Company & Directors' Information:- T S R I COMMERCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1999PTC032173

Company & Directors' Information:- AND E-COMMERCE PRIVATE LIMITED [Active] CIN = U74120AP2015PTC096206

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- D B S COMMERCE PRIVATE LIMITED [Active] CIN = U52190MH2009PTC190773

Company & Directors' Information:- A P COMMERCE LIMITED [Strike Off] CIN = U51909WB1981PLC033798

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- K P INDIA COMMERCE PRIVATE LIMITED [Strike Off] CIN = U51909AS2001PTC006701

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- Y S E-COMMERCE PRIVATE LIMITED [Active] CIN = U72200MH2000PTC126344

Company & Directors' Information:- B AND D E-COMMERCE PRIVATE LIMITED [Strike Off] CIN = U74999HP2015PTC000945

Company & Directors' Information:- I P E-COMMERCE PRIVATE LIMITED [Active] CIN = U52399CH2012PTC033585

    WA. No. 191 of 2020

    Decided On, 31 January 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellant: Babu Joseph Kuruvathazha, N. Shamsul Huda, Advocates. For the Respondents: R3 to R6, K. Sandesh Raja, Spl. GP.



Judgment Text


S. Manikumar, C.J.

1. Instant writ appeal is filed against order dated 14.01.2020 passed in W.P.(C) No.36021 of 2019, by which the writ court declined to grant the interim relief sought for in the writ petition.

2. Short facts leading to the appeal are that, petitioner/appellant is the Managing Partner of M/s. Vibhu Essential Oils LLP, which is one of the largest dealers and suppliers of sandalwood and its related products in the country. They had substantial foreign trade in sandalwood also. They used to supply products to different perfumery and cosmetic industries throughout India and operates in Ghaziabad at Uttar Pradesh. However, the sale, possession and transportation of sandalwood and its products are prohibited in Kerala byvirtue of Section 47C of the Forests Amendment Act, 2010 and the Kerala Forest (Restriction on Cutting and Selling of Sandal Trees and Grant of Licence for Possession and Transport of Sandalwood and Sandalwood Oil) Rules, 2012.

3. Appellant has challenged the validity of Section 47C of the Kerala Forest (Amendment) Act, 2010, and the Rules mentioned above before the writ court in W.P.(C) No.21156 of 2018. According to the petitioner, the firm imports sandalwood oil and other products with all the statutory permits/licenses. As per the rules, maximum quantity of sandalwood that canbe possessed by an individual/firm is 1 kg, whereas the maximum quantity of sandalwood oil is 100 ml. While so, Range Forest Officer, Forest Range Office, Marayoor Range, Idukki, respondent No.6, issued an auction notification on16.12.2019 (Exhibit-P7) for sale of 71.953 tones of sandalwood. Challenging the proposal to conduct auction of 71.953 tones of sandalwood, instant writ petition has been filed on the following reliefs:

i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing the operation and all further proceedings pursuant to Exhibit-P7 (invitation of E-Auction Sale of Sandalwood);

ii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 6th respondent to consider and dispose of Exhibit-P9 representation forthwith, at any rate, before holding the tender scheduled as per Exhibit-P7 or any other extended date;

4. Before the writ court, a statement has been filed by Range Forest Officer, Forest Range Office, Marayoor Range, Idukki, respondent No.6, as here under:

A) Instant writ petition is filed to issue a certiorari or any appropriate writ, order or directions quashing the operation of all further proceedings in pursuance to invitation for e-auction sale of sandalwood vide MR-275/19 dated 16.12.2019 of the Range Forest Officer, Marayoor. The petitioner has also sought for issuance of a writ of mandamus or any other appropriate writ, order or direction commanding the Range Forest Officer, Marayoor to consider and dispose the representation dated 27.12.2019 made by the petitioner before the Range Forest Officer, Marayoor, to cancel or keep in abeyance all further proceedings of the e-tender until the judgment in W.P(C) No. 21156/2018 or the Government of Kerala lift the restrictions imposed in the quantity of sandalwood to be possessed by the individual /prospective buyer, by amending the Kerala Forest Act, 1961 and Kerala Forest (Restriction on Cutting and Selling of Sandalwood Trees and Grant of Licence for Possession and Transport of Sandalwood and Sandalwood Oil) Rules, 2012. The petitioner also sought an interim relief to stay the operation of all -further proceedings in pursuance to the invitation for e—tender dated 16.12.2019 pending final disposal of the W.P(C) No. 21156/2018.

B) The prayer of the petitioner is against the existing laws and procedure laid down in the Acts and Rules. Restriction on cutting and selling of Sandalwood trees and grant of licence for possession and transport of Sandalwood and Sandalwood Oil was introduced to curb the rampant felling smuggling and illegal trade of Sandalwood and Sandalwood oil within and across the State and similar legislative interventions are made in the States of Karnataka, Tamil Nadu etc. as per the directions of the Hon'ble Apex Court in W.P(C) No. 202/1995 by T.N. Godavarman Thirumulpad. The monopoly of sandalwood trade by the Governments of Karnataka, Tamil Nadu and Kerala and its consequences have resulted in severe exploitation, pushing into the vulnerable category of the IUCN Red List. All the apprehensions and allegations raised by the petitioners in the Writ Petition were considered by the Hon'ble Apex Court in W.P(C) No. 202/1995 in the affidavits filed by various parties. In the said case, the Hon'ble Apex Court held that "we are also inclined to give a direction to the Central Government to formulate a policy for conservation of sandalwood, including provision for financial reserves for such conservation and scientific research for sustainable use of biological diversity in sandalwood. Central Government would also formulate rules and regulations under Sections 3 and 5 of Environmental Protection Act, 1986, for effective monitoring, control and regulation of sandalwood industries and factories and that, it should also formulate rules to ensure that no imported sandalwood is sold under the name of Indian sandalwood and adequate labelling to this effect be mandated for products manufactured from or of import of sandalwood. States are directed to immediately close down all unlicensed sandalwood oil factories, if functioning and take effective measures for proper supervision and control of the existing licensed sandalwood oil factories in states.” Thus, in tune with the directions of the Hon'ble Apex Court in this regard, various States have formulated their own policies, rules and laws to deal with the situation.

C) Respondent No.6 has further contended that it is in the above mentioned context that, the provisions in the amended Act and the 2012 Rules to deal with illicit felling, removal and distillation of sandalwood, smuggling of the sandalwood and its products was introduced in the State of Kerala. The legislative intention is to deal with the above situations as directed by the Hon'ble Apex Court and the above amendment and rules in no way are in violation to Articles 301 to 304 of the Constitution of India. As per Article 303, (2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India. As various States have brought about amendments as per the direction of the Hon'ble Apex Court regarding hence the allegation by the writ petitioner that the law was enacted without previous sanction of the President is unsustainable. Thus, it is not just and fair to agitate the legislative competence of the State legislature regarding the disputed Acts and Rules by way of a Writ Petition. Above all, the purpose of legislative intervention is to improve the efficacy of monitoring, control and regulation of sandalwood industries and factories and formulate rules to ensure that no imported sandalwood and oil sold under the name of Indian sandalwood. Reasonable restriction of trade of sandalwood is not arbitrary and against the will of the Constitution.

D) Further contentions have been made that these rules have made a tremendous impact in controlling the sandalwood mafia operated in Kerala, Tamilnadu and Karnataka. If any relaxations as claimed by the petitioner are allowed, it would have an adverse impact on the conservation and regulation prescribed by the Hon'ble Apex Court in T.N. Godavarman Thirumulpad case and will pave way to illicit trade and large scale felling of Sandal trees.

E) Forest department has contended that in 2010, the Kerala Forest Act, 1961 was amended vide Act 8 of 2010 and Chapter VIA was included detailing the provisions relating to sandalwood. This chapter clearly puts restriction on cutting and sale of sandal trees, possession and transport of sandalwood and sandalwood oil and purchase and sale of sandalwood and sandalwood oil, etc. It is also submitted that Section 47F of Kerala Forest (Amendment) Act, 2010 recites "Restriction on purchase, sale etc. of sandalwood and sandalwood oil.

(1) No person shall purchase, receive or acquire sandalwood or sandalwood oil otherwise than from the Government or the authorised officer or public sector undertakings owned by Government or any other agency authorised by Government on this behalf.

(2) No licensee under this Chapter, shall keep in his control, custody or possession or acquire, receive, sell or offer for sale or process or transport sandalwood or sandalwood oil except in accordance with the conditions of licence granted.”

F) It was further contended that there is demand for sandalwood in Kerala, especially for the temples in the State. Their demand is being met by Forest Department by auctioning required quantity of sandalwood. The huge demand pointed out by the petitioner is the demand of sandalwood for the sandal mafia. To control the large scale operations by the sandal mafia in Kerala, a new Forest Division was established at Marayoor and all the private sandalwood distilleries in the State were closed down. The illicit felling and removal of sandal trees from Government and private lands were drastically reduced after this. As Section 47 (F) restricts the purchase of sandalwood and sandalwood products from agencies other than Government, Kerala Forest Department is supplying sandalwood to different Devaswom Boards via e— auction. In addition, Government allotment is there for Guruvayoor Devaswom Board for five tonnes of Sandalwood per year vide G.O(Ms) No.56/93/F&WLD dated 02.08.1993 and G.O(Rt) No. 483/95/Forest dated 19.12.1995. It was stated that the genuine demand from the temples for sandalwood is satisfactorily met by the Kerala Forest Department.

G) It has to be noted that strict rules have been imposed to control the illicit felling, removal and distillation of sandalwood and spread of smuggling of the sandalwood products in the black market. These rules have made a huge impact in controlling the sandalwood mafia in Kerala. The provisions in the amended Act and the 2012 Rules imposed restrictions in possession, transportation, sale and purchase of sandalwood and sandalwood products in Kerala. This has drastically reduced illicit felling and removal of sandal trees from the Government and private lands. If any other person or firm other than Government or agency authorised by the Government is permitted to conduct sale of sandalwood or sandalwood products in tune with the statement of the petitioner illicit felling of sandal trees from the State will increase to a high rate and the sandal mafia will re-establish.

H) Section 47C has been enacted to regulate possession and transport of sandalwood and sandalwood oil in the State. An individual in Kerala is permitted to possess or transport a maximum of one kilogram of sandalwood and one hundred milliliter of sandalwood oil obtained via legal means. This is to prevent illicit possession and transportation of sandalwood and sandalwood oil. Individuals need not possess sandalwood of more than one kilogram for bonafide purpose. It was also stated that vide Section 47(C), religious institutions, artisans, licensed manufacturers and registered practitioners of indigenous medicines or any corporation or society owned or controlled by the Government for their bonafide purposes are permitted to possess or transport sandalwood or sandalwood oil above the specified quantity with the license issued by the Authorised Officer. So the averment of the petitioner that bonafide possessor cannot possess or transport sandalwood in excess of one kilogram is false.

I) Contentions have been made that as per the Exhibit P1 Certificate of Incorporation, M/s Vibhu Essential Oils LLP. was seen incorporated only in the year 2013 and Exhibit P3 Export Import Licence was issued only in the year 19.02.2014. Thus, they claim that on the introduction of the amended rules the long standing customers of the firm were unable to purchase the products of the firm is false and bogus. It was further stated that sale as per Exhibits P4, P5, P6 is done against law and information has already been given to the concerned Forest Officers having jurisdiction over the area to take appropriate legal proceedings against the firms mentioned in the above exhibits. Exhibits P7 and P8 are the invitations send to different firm dealing with sandalwood and participated in previous auctions across the country. It is a regular practice of informing the interested parties. It has to be noted that representation vide Exhibit P8 was neither submitted by the petitioner before the Range Forest Officer, Marayoor. The petitioner is trying to mislead the Hon’ble Court stating that he has submitted the representation.

J) It was further contended that the restrictions on the cutting and sale of sandal trees; prohibition of possession and transport of sandalwood and sandalwood oil; declaration of the stock of sandalwood and sandalwood oil possessed; restrictions on the purchase, sale, etc. of Sandalwood and Sandalwood oil; and penalties and seizure as per the amended Act and Rules is just and fair and contain no illegalities. It is pertinent to note that this Court has not issued any order restraining the operation of the same in W.P(C) No. 21156/2018. It was also stated that the Sandal e-auction conducted by Marayoor Sandal Division is done in compliance of the rules and procedure laid in for the purpose and the petition to stay all further proceedings of the e-auction is without any merits and bonafides.

K) Respondent No.6 further contended that pursuant to Exhibit-P7, e-auction of sandal wood was conducted on 10.01.2020 and various persons have participated in the said e-auction. The e-auction sale of sandal wood has been completed and the sandalwood has been awarded to the successful bidders. Based on the above contentions, 6th respondent has sought for dismissal of the appeal.

5. Being aggrieved by the refusal of writ court to grant interim order, instant writ appeal is filed on the following grounds:

(a) If no interim relief is granted, nothing further survives in the writ petition and, therefore, this is a fit case.

(b) The view of the learned single Judge, in the impugned order, that proviso to Section 47 empowers the appropriate officer to give licence to transport sandalwood, is not a justification for declining an interim order, because such a licence can be granted only to a limited class of people and auction was not confined to such classes alone, and more than 90% of the sandalwood auction was purchased by private business men/firms, who cannot enjoy the privilege conferred under the proviso to Section 47C.

(c) The proposal to give licence to the successful bidders, in the guise of the provision to Section 47C is a method to permit clandestine actions from the part of the authorities and, therefore, vitiated by malafides.

6. Inviting our attention to the statutory provisions, Mr. Kurian George Kannanthanam, learned Senior Counsel appearing for the appellant, made submissions. Submission has also been made by Mr. K. Sandesh Raja, learned Special Government Pleader for Forest, that the appellant has not participated in the auction, which is already over.

7. Heard learned counsel for the parties and perused the material available on record.

8. Kerala Forest Act, 1961 is an act to unify and amend the law relating to protection and management of forests in the State of Kerala. Sections 47B, 47C and 47F of the Kerala Forest Act come under Chapter VIA - Provisions relating to sandalwood, are extracted hereunder:

“47B. Restriction on cutting and sale of sandal trees.- (1) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court, no owner of any land, including a plantation and no person claiming under him or any other person shall, without previous permission in writing of the authorised officer, cut, uproot, remove or sell any sandal tree in the land in his possession or ownership.

(2) The permission under sub-section (1) shall not be refused if the tree is dead or wind fallen or constitutes a danger to life or property or such cutting is to enable the owner of the land in which the tree stands to use the area cleared for the construction of a building for his own use:

Provided that before taking a decision under sub-section (2), a report as to the genuineness of the matter shall be obtained from a committee for each district consisting of three members as may be authorised by the Government in the behalf”.

(3) Where the owner of the sandal tree which is dead or in respect of which permission under sub-section (1) is obtained, makes a request in writing, the authorised officer shall cause to cut, remove and sell such tree in such manner as may be prescribed.”

“47C. Prohibition of possession and transport of sandalwood and sandalwood oil.- (1) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree, or order of any court, no person shall,-

(i) possess or transport any quantity of sandalwood in excess of one kilogram; or

(ii) possess or transport any quantity of sandalwood oil in excess of one hundred millilitre;

Provided that the authorised officer may issue licence for the possession or transport of sandalwood in excess of one kilogram to religious institutions, artisans, licensed manufactures and registered practitioners of indigenous medicines or any corporation or society owned or controlled by the Government for their bonafide purposes, on payment of such fees in such manner and subject to such restrictions and conditions as may be prescribed.

Provided further that the authorised officer may issue licence for the possession or transport of sandalwood oil in excess of one hundred millilitre to the licensed manufacturers of cosmetics, drugs and other material in which sandalwood oil is an essential ingredient, for their bonafide purpose; on payment of such fees, in such manner and subject to such restrictions and conditions as may be prescribed;

(2) Notwithstanding anything contained in any law for the time being in force or in judgment, decree or order of any court, no person except the Government or public sector undertakings owned by Government shall disintegrate or attempt to disintegrate sandalwood in mills or by other contrivance, manufacture or distil, or attempt to manufacture or distil oil from sandalwood or re-distil, refine or sell oil extracted from sandalwood.

(3) The authorised officer may cancel or suspend any license granted under sub-section (1), if he is satisfied, after giving an opportunity to the holder thereof being heard, that the licensee has contravened, or failed to comply with any of the provisions this Chapter or the rules made there under or any of the terms and conditions of the license.

(4) Any person aggrieved by the decision of the authorised officer refusing to grant or renew a license or cancelling or suspending such a license under this section may, within such time as, may be prescribed appeal to the Government and the Government may make such order as they may think fit.”

“47F. Restriction on purchase, sale etc. of sandalwood and sandalwood oil.-(1) No person shall purchase, receive or acquire sandalwood or sandalwood oil otherwise than from the Government or the authorised officer or public sector undertakings owned by Government, or any other agency authorised by Government on this behalf.

(2) No licensee under this Chapter, shall keep in his control, custody or possession or acquire, receive, sell or offer for sale or process or transport sandalwood or sandalwood oil except in accordance with the conditions of the license granted.”

7. In exercise of the powers conferred by sub-section (1) of Section 30 read with Sections 47A to 47F and Section 76 of the Kerala Forest Act, 1961, Government of Kerala have framed the Kerala Forest (Restriction on Cutting and Selling of Sandal Trees and Grant of Licence for Possession and Transport of Sandalwood and Sandalwood Oil) Rules, 2012. Rules 6 and 7 of the Rules are extracted hereunder:

“6. Grant of licence for possessing sandalwood or sandalwood oil,- (1) Application for licence for the possession of sandalwood shall be submitted in Form III along with a fee at the rate specified in the Schedule to the Authorised Officer, who shall on receipt of such application, inspect or cause such inspection to verify the genuineness of the contents of the application and if satisfied grant a licence in Form IV appended to these rules, within thirty days from the date of receipt of the application. In case the application is declined, the same shall be intimated to the applicant in writing.

(2) Licence under sub-rule (1) for possession of sandalwood and sandalwood oil in excess of the permitted quantity as provided under sub-section (1) of Section 47C may be issued to those mentioned under the first and second proviso to sub-section (1) of Section 47C on payment of licence fee at the rate specified in the Schedule.”

“7. Grant of licence for transporting sandalwood or sandalwood oil.- (1) Application for licence for the transport of sandalwood shall be submitted in Form III along with a fee at the rate specified in the Schedule to the Authorised Officer, who shall on receipt of such application, inspect or cause such inspection to verify the genuineness of the contents of the application and if he is satisfied, issue a licence in Form IV appende'd to these rules, within thirty days from the date of receipt of the application. In case the application is rejected, the same shall be intimated to the applicant in writing.

(2) Licence under sub-rule (1) for transporting sandalwood and sandalwood oil in excess of permitted quantity as provided under sub-section (1) of Section 47C may be issued to those mentioned under the first and second proviso to sub-section (1) of Section 47C on payment of licence fee at the rates specified in the Schedule.

(3) In the case of licenses issued under this rule, the route of transport shall invariably be noted in the licence with a specific instruction to get the materials checked at the forest check posts or forest offices enroute.

(4) In granting the licence, the Authorised Officer shall have due regard to the following matters, namely:-

(i) capacity of the applicant, to fulfill the purpose for which licence is granted with reference to the factories, equipments, production and suitability of premises for such business.

(ii) past record of the applicant as a dealer or manufacturer in the business which he desires to carry on; and

(iii) whether the applicant was involved in or convicted of any offence under any of the forest laws for the time being in force.

(5) Licence shall be granted only if the bonafide possession of sandalwood or sandalwood oil is proved.

(6) Where the Authorised Officer refuses to grant licence, he shall record reasons for the same in writing and communicate the same to the applicant within thirty days of receipt of the application.”

8. Exhibit-P7 e-auction sale of sandalwood published by the 6th respondent as per Invitation dated 16.12.2019 is extracted hereunder:

“MR.275/19 Dated: 16/12/2019

E-AUTION SALE OF SANDALWOOD

INVITATION

The E-auction sale of approximate 71.953 Tones of Sandalwood is proposed to be conducted on 08/01/2020 & 09/01/2020 through MSTC India. We expect kind participation of your esteemed establishment. For more details please log on to www.forest.kerala.gov.in/mstcccommerce.com. It is requested to communicate the same to your sub offices. Contact Nos.

I) Divisional Forest Office, Sandal Division, Marayoor,

Land Phone-04865-252977/252988

Mob – 0944797904

II) Range Forest Office, Marayoor

Land Phone - 04865-252378

Mob – 08547601500

Range Forest Officer

Marayoor”

9. Mr. Kurian George Kannanthanam, learned Senior Counsel for the appellant, submitted that licence for possession or transport of sandalwood in excess of 1 kilogram can be granted only to three persons in the first part of Section 47 of the Act namely, (1) religious institutions, (2) artisans, (3) licensed manufacturers and registered practitioners of indigenous medicines; and two persons, namely, Corporation or Society owned or controlled by the Government for their bonafide purpose. At this juncture, we may only observe that the word “and” used between “licensed manufacturers” and “registered practitioners of indigenous medicines”, could be read as disjunctive, because a licensed manufacturer of sandalwood oil in large quantities or to be precise, in the light of the statutory provisions i.e., a manufacturer, who manufactures more than 100 ml. of sandalwood oil, need not be a practitioner of indigenous medicine. Thus, instead of three persons read separately, there could be four persons, who can be granted licence apart from Corporation or Society owned or controlled by the Government, subject to the provisions empowering grant of licence.

10. It is trite law to state that presumption is in favour of the statute. Reference can be made to a few decisions.

“(i) A Full Bench of the Hon'ble Supreme Court in Ram Krishna Dalmia v. Justice S.R.Tendolkar reported in AIR 1958 SC 538, has carved out the principles as follows:

"(a) …...

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."

(ii) In Mohd. Hanif Quareshi v. The State of Bihar reported in 1958 AIR 731, the Hon'ble Supreme Court observed as follows :-

"The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation."

(iii) In Mahant Moti Das v. S.P.Sahi, the Special Officer In Charge of Hindu Religious Trust & Ors. reported in AIR 1959 SC 942, the Hon'ble Supreme Court, held as follows:

"The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest......"

(iv) In State of Uttar Pradesh v. Kartar Singh reported in AIR 1964 SC 1135, the Constitution Bench of the Hon'ble Supreme Court held that where a party seeks to impeach the validity of a rule on the ground of such rule offending Article 14, the burden is on him to plead and prove infirmity. This Court said :

"......... if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under Section 3 of the Act, that presumption is strong, if not overwhelming........."

(v) In A.C.Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst.Ram Kali reported in AIR 1968 SC 1, the Constitution Bench of the Hon'ble Supreme Court reiterated the legal position thus :

"........The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds."

(vi) In Pathumma and Others v. State of Kerala reported in AIR 1978 SC 771 = 1978 SCR (2) 537, a Constitutional Bench of the Hon'ble Supreme Court held as follows:

"It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weak-or sections of the society and for the improvement of the lot of poor people. The Court will therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same."

(vii) In M.L.Kamra v. Chairman-Cum-Managing Director, New India Assurance Co. Ltd., reported in 1992 AIR 1072 : 1992 SCR (1) 220, the Hon'ble Supreme Court held as follows:

"It is settled law that there is a presumption of constitutionality of the rule. The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, Since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions. Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the constitution."

(viii) In Peoples Union for Civil Liberties v. Union of India (2004) 2 SCC 476, the Hon'ble Supreme Court held that a statute carries with it a presumption of constitutionality and such a presumption extends also to a law which has been enacted for imposing reasonable restrictions in the fundamental right. It is further held that a further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily.

(ix) In Karnataka Bank Limited v. State of Andhra Pradesh (2008) 2 SCC 254, the Hon'ble Apex Court held as follows:

"19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; “to doubt the constitutionality of a law is to resolve it in favour of its validity. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N.Balsara [AIR 1951 SC 318])”

(x) In Government of Andhra Pradesh & Ors. v Smt.P.Laxmi Devi reported in (2008) 4 SCC 720, the Hon'ble Supreme Court has considered few decisions, on the presumption in favour of the constitutionality, as follows:

"58. The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. This view was adopted by the Constitution Bench of this Court in Charanjit Lal Chowdhury v. Union of India and others [AIR 1951 SC 41 (para 10)], which observed:

"Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and while examining it, two principles have to be borne in mind:

(1) that a law may be constitutional even through it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(2) that it is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton vs. Texas Power and L. Company, (248 U.S. 152 and 157), in which the relevant passage runs as follows:

“It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by expression and that its discriminations are based upon adequate grounds."

This view has been consistently followed thereafter.

59. Thus in M/s. B.R. Enterprises v. State of U.P. and others AIR 1999 SC 1867 this Court observed :

"Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment, vide Charanjit Lal Chaowdhury v. Union of India, 1950 SCR 869: AIR 1951 SC 41); State of Bombay v. F.N.Bulsara, 1951 SCR 682: (AIR 1951 SC 318), Mahant Moti Das v. S.P.Sahi (AIR 1959 SC 942)".

The following passage in Seervai, Constitutional Law of India (3rd Edn.) page 119 found approval in Delhi Transport Corporation v. D.T.C.Mazdoor Congress, 1991 (Supp) 1 SCC 600 : (AIR 1991 SC 101). The Court held: "Seervai in his book Constitutional Law of India (3rd Edn) has stated at page 119 that:

"the courts are guided by the following rules in discharging their solemn duty to declare laws passed by a legislature unconstitutional:

1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; 'to doubt the constitutionality of a law is to resolve it in favour of its validity'.

2) A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution"

(emphasis supplied

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) 60. Similarly, in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Another, [AIR 2001 SC 724] (vide para 9) a Constitution Bench of this Court observed : "There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will Shell Company of Australia v. Federal Commissioner of Taxation, 1931 AC 275 (Privy Council). The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the Court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction". (emphasis supplied) 61. In State of Bihar and others v. Bihar Distillery Ltd., AIR 1997 SC 1511 (vide para 18) a Constitution Bench of the Hon'ble Supreme Court observed: "The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less in-exactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void." 62. The same view has been taken by the Constitution Bench of this Court in Hamdard Dawakhana and another v. Union of India, AIR 1960 SC 554 (vide para 9) which observed: "Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people, that the laws it enacts are directed to problems which are made manifest by experience, and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. Charanjit Lal v. Union of India, 1950 SCR 869: (AIR 1951 SC 41); State of Bombay v. F.N.Baulsara, 1951 SCR 682 at p.708; (AIR 1951 SC 318 at p. 326); AIR 1959 SC 942." (xi) In Namit Sharma v. Union Of India reported in (2013) 1 SCC 745, the Hon'ble Supreme Court, held as follows: "46. To examine constitutionality of a statute in its correct perspective, we have to bear in mind certain fundamental principles as afore-recorded. There is presumption of constitutionality in favour of legislation. The Legislature has the power to carve out a classification which is based upon intelligible differentia and has rational nexus to the object of the Act. The burden to prove that the enacted law offends any of the Articles under Part III of the Constitution is on the one who questions the constitutionality and shows that despite such presumption in favour of the legislation, it is unfair, unjust and unreasonable." In the light of the abovesaid discussion and decisions, we are not inclined to reverse the interim order dated 14.01.2020 in W.P.(C) No.36021 of 2019, except to state that confirmation of the auction would be subject to the outcome of the writ petition. Writ appeal is dismissed. No costs.
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