Full Judgment Text
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PETITIONER:
SRI KRISHNA DAS
Vs.
RESPONDENT:
TOWN AREA COMMITTEE, CHIRGAON
DATE OF JUDGMENT20/03/1990
BENCH:
SAIKIA, K.N. (J)
BENCH:
SAIKIA, K.N. (J)
SAWANT, P.B.
CITATION:
1991 AIR 2096 1990 SCR (2) 13
1990 SCC (3) 645 JT 1990 (2) 68
1990 SCALE (1)550
ACT:
Town Areas Act 1914-Section 38 and Bye Laws of the Town
Area Committee Chirgaon-Weighing dues--Payment of--User of
market committee--Validity of weighing dues--Whether ’tax’
or ’fee’
HEADNOTE:
The appellant is a commission agent, engaged in the
business of sale and purchase of grains, rice, oil-seeds
etc. in Chirgaon, District Jhansi. By a notification issued
under s. 38(1) of the United Provinces Town Areas Act, 1914,
the provisions of Section 298(2)(F)(d) of the U.P. Munici-
palities Act, 1916 were extended to the Town Area of Chirg-
aon, as a result of which, the Panchayat of Chirgaon was
empowered to make bye-laws for the establishment, regulation
’and inspection of market and 1or the proper and cleanly
conduct of business therein. Later by Section 4 of the U.P.
Provinces Town Area (Amendment) Act, the word "Panchayat"
wherever it occurred in the Principal’ Act was substituted
by the word ’Committee’. In pursuance of the powers con-
ferred on him the District Magistrate, Jhansi framed bye-
laws dated 18.11.1934 for the regulation of the market.in
Chirgaon which inter alia provided that weighing dues shall
be charged at different rates on various articles that came
to the Town Area for sale at rates specified therein. Since
the appellant was a dealer in some of these commodities, he
was served with a notice calling upon him to pay Rs.1892/26
as weighing dues for the period from 1.5.1962 to 30.6.1962.
The appellant challenged the notice by means of a writ
petition in the Allahabad High Court. A learned single Judge
of the High Court dismissed the writ petition taking the
view that the demand made by the respondent was purely a
measure of taxation. Special Appeal against the said order
was also dismissed by the High Court. Hence this appeal by
special leave.
The main contentions of the appellant, as urged before
the High Court, as have been repeated before this Court are;
(i) that the bye-laws were invalid; (ii) that the Town Area
Committee had no power to impose such tax; as the Act did
not empower the TAC to levy and collect weighing dues; (iii)
that the weighing dues were discriminatory because of the
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exemptions; (iv) that the weighing dues were not a tax but a
fee which could not be charged without quid pro quo and (v)
that there was
14
double taxation. It was also urged that the imposition of
weighing dues is tantamount to illegal extraction without
the authority of law. The respondent, on the other hand,
supported the judgment of the High Court;
Dismissing the appeal, this Court,
HELD: Under the Indian Constitution the State Govern-
ment’s power to levy a tax is not identical with that of its
power to levy a fee. While the powers to levy taxes is
conferred on the State Legislatures by the various entries
in List 11, in it there is Entry 66 relating to fees, empow-
ring the State Government to levy fees ’in respect of any of
the matters in this List, but not including fees taken in
any Court’. The result is that each State Legislature has
the power, to levy fees, which is co-extensive with its
powers to legislate with respect to substantive matters and
it may levy a fee with reference to the services that would
be rendered by the State under such law. The State may also
delegate such a power to local authority. [21C-D]
A fee is a payment levied by an authority in respect of
services performed by it for the benefit of the payer, while
a tax is payable for the common benefits conferred by the
authority on all tax payers. [21F]
’While there is no quid pro quo between a tax payer and
the authority in case of a tax, there is a necessary co-
relation between fee collected and the service intended to
be rendered. Of course the quid pro quo need not be under-
stood in mathematical equivalence but only in a fair corre-
spondence between the two, a broad co-relationship is all
that is necessary. [21G]
Courts cannot review the wisdom or advisability or
expediency of a tax as the court has no concern with the
policy of legislation, so long they are not inconsistent
with the provisions of the Constitution. It is only where
there is abuse of its powers and transgression of the legis-
lative function in leving a tax, it may be corrected by the
judiciary and not otherwise. [24B]
Taxes may be and often are oppressive, unjust and even
unnecessary but this can constitute no reason for judicial
interference. When taxes are levied on certain articles or
services and not on others it cannot be said to be discrimi-
natory. [24C]
Avinder Singh v. State of Punjab, [1979] 1 SCR 845, referred
to.
JUDGMENT:
15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 748 of
1975.
From the Judgment and Order dated 3.12.1971 of the
Allahabad High Court in Special Appeal No. 289 of 1963.
R.K. Maheshwari for the Appellant.
Rachna Gupta, (NP) and Mrs. Rani Chhabra for the Re-
spondent.
The Judgment of the Court was delivered by
K.N. SAIKIA, J. This appeal by special leave is from the
Judgment and order dated 3.12.1971 of the Allahabad High
Court in Special Appeal No. 289 of 1963 dismissing the
appeal and consequently the writ petition.
The appellant is a (Pacca Arahatiya) commission agent
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engaged in the sale and purchase of grains, rice, oil-seeds
and jaggery in the town of Chirgaon, District Jhansi.
On March 4, 1933, the Government of U.P. published a
Notification purported to have been issued under section
38(1) of the United Provinces Town Areas Act 1914 (Act-II of
1914), hereinafter referred to as ’the Town Areas Act’,
which read as under:
"No. 090/XI-158-T. It is hereby notified that the Governor
acting with his Ministers, in exercise of the powers con-
ferred by s. 38(1) of the United Provinces Town Areas Act
1914 (II of 1914) is pleased to extend the provisions of s.
298(2)(F)(d) of the United Provinces Municipalities Act 19
16 to the Town Area of Chirgaon in the Jhansi District in
the modified form set forth below:
Modified section of the United Provinces Munici-
palities Act, 1916 (II of 1916) s. 298(2)(F)(d) "The Pan-
chayat may make bye-laws for the establishment, regulation
and inspection of market and for the proper and cleanly
Conduct of business therein."
Later by section 4 of the United Provinces Town Area
(Amendment) Act, 1934 (U.P. Act II of 1934) the word ’Pan-
chayat’ wherever
16
it occurred in the Principal Act was substituted by the word
’Committee’.
It may be noted that the Town Area Panchayat was super-
seded for a period of one year with effect from 20.10.1933
to 19.10.1934 and was revived thereafter.
The District Magistrate, Jhansi promulgated a set of
bye-laws dated 18.11.1934 for the establishment, regulation
and inspection of the market in the Town Area of Chirgaon
and for the proper and cleanly conduct of business therein.
Under Bye-law (1), sellers and purchasers of the commodities
mentioned thereunder were required to pay weighing dues. It
said:
"1(a) Weighing dues shall be charged at the rate of 1/4/6
per cent (eight-/8/-annas per cent from the sellers and
twelve and a half annas per cent from the purchaser) on the
following articles which comes to the Town Area for sale:
Grains, oil seeds, oil cakes, cotton, vegetables for whole-
sale, Dhania for wholesale and gur etc.
(b) Weighing dues on Ghi shall be charged at the rate of
/2/6/two and half annas per maund half from the seller and
half from the purchaser.
N.B. In recovery of weighing dues fraction of a pie
shall be omitted and more the figure adjusted to the nearest
price.
(c) The purchaser shall be responsible for the full amount
of weighing dues. He shall deduct the seller’s share from
the price.
(d) No weighing dues shall be charged on any article import-
ed by rail nor on rice, salt, gur and sugar imported from
Jhansi and Moth by rail or road.
(e) On refusal to pay the weighing dues it shall be recover-
able as arrears of tax on circumstances and property."
Since the appellant was a dealer in some of these
commodities, was served with a notice dated 27.7.1962 de-
manding Rs. 1892.26 as weighing dues for the period from
1.5.1962 to 30.6.1962.
17
The appellant challenged the aforesaid notice filing a
writ petition on 18.8.1962 in the Allahabad High Court being
Civil Misc. Writ Petition No. 2400 of 1962. A learned Single
Judge by his order dated 29.4.1963, dismissed the same
taking the view that the demand made by the respondent was
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purely a measure of taxation. The appellant filed therefrom
Special Appeal No. 289 of 1963, which was dismissed by the
impugned judgment and order.
Before the High Court the appellant contended, inter
alia, that the Bye-laws were invalid as the Town Area Com-
mittee, shortly ’the TAC’, did not frame them; that the TAC
had no power to impose such tax; that the U.P. Town Areas
(Amendment) Act 1952 did not empower the TAC to levy and
collect weighing dues; that the weighing dues were discrimi-
natory because of the exemptions; that the weighing’ dues
were not a tax but a fee which could not be charged without
quid pro quo; that there was double taxation; and in the
alternative, that the weighing dues amounted to neither a
fee nor a tax but an illegal extraction without the authori-
ty of law. All the arguments were rejected by the High
Court.
Before us Mr. R.K. Maheshwari, the learned counsel for
the appellant, submits, inter alia, that the Bye-laws were
invalid at the time when those were framed and could not
have been validated by mere adoption by the TAC in 1935;
that the weighing dues were merely in the nature of purchase
tax and were illegal inasmuch as the TAC had no right or
authority to levy the same when it had already been imposed
by the State of Uttar Pradesh under section 128(1)(xiv) of
the U.P. Municipalities Act; that the TAC did not render any
special service to the ’Arhatias’ or farmers who came to the
town to conduct their business, nor did it incur any expend-
iture in this regard; that the charging of weighing dues was
discriminatory inasmuch as there were no weighing charges on
some articles imported from Jhansi or Moth Tehsil by rail
and on rice, salt, jaggery or sugar brought either by road
or by rail; that goods coming from villages situate between
Chirgaon and Jhansi were not required to pay weighing dues
while goods from other places in the State of U.P. were
being subjected to the dues; that similar tax had already
been imposed by the State Legislature under the Provisions
of the U.P. Sales-tax Act under Entries 52 and 54 of List II
and there was double taxation by the TAC; that the goods
arriving by car have been subjected to the weighing dues
while goods arriving by rail from Jhansi and Moth were
exempted; that the levy of weighing dues by the Town Area
Committee Chirgaon is arbitrary and discriminatory and is
grossly violative of Article 14 of the Constitution;
18
that the levy, though called tax is actually a fee and is
collected in the disguise of tax; that double taxation in
the form of sales tax by the State Government and weighing
dues by the TAC is unjustified and it imposes unreasonable
restriction on the rights guaranteed under Article 19(1)(g)
of the Constitution; and that the High Court erred in dis-
missing the appeal and the writ petition.
The learned counsel for the respondent refutes all the
submissions of the appellant and supports the impugned
judgment.
The first question that needs examination is the validi-
ty of the Bye-laws promulgated by the District Magistrate on
18.11.1934 after the Notification published by the Govern-
ment of U.P. issued under section 38(1) of the Town Areas
Act. That section, as it stood at the relevant time, empow-
ered the Provincial Government to extend, by notification in
the Gazette, to all town areas or to any town area or to any
part of a town area any enactment for the time being in
force in any municipality in the United Provinces subject to
such restrictions and modifications, if any, as it thought
fit. By the instant Notification dated March 4, 1933 the
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Provincial Government extended the Provisions of section
298(2)(F)(d) of the United Provinces Municipalities Act,
1916, hereinafter referred to as the Municipalities Act, to
the town area of Chirgaon in the Jhansi District in the
modified form set forth in the Notification itself. The word
’Panchayat’ was substituted by the word ’Committee’ by
section 4 of the United Provinces Town Areas (Amendment)
Act. There could, therefore, be no doubt that the TAC could
make the Bye-laws.
The question then is the nature and extent of the empo-
werment under the above Notification. The empowerment would
naturally be what a Municipality could do under that provi-
sion, namely, section 298(2)(F)(d). Section 298 was includes
in Chapter IX of the Municipalities Act and it dealt with
rules, regulations and bye-laws. There could, therefore, be
no doubt that the TAC was empowered to make bye-laws "for
the establishment, regulation and inspection of market and
for the proper and cleanly conduct of business therein."
The Bye-laws dated 18.11.1934 were promulgated by the
District Magistrate. The contention that the District Magis-
trate had no power to promulgate the Bye-laws was rightly
rejected by the learned courts below holding that the Dis-
trict Magistrate was at that time functioning as TAC as it
then remained suspended and those were ratified on 9.1.1935
by the TAC after it was revived.
19
Section 298(2)(F)(d) as modified in the Notification did
not ex facie authorise the imposition of any tax. The Munic-
ipalities Act, Chapter V, (Sections 128 to 165) dealt with
municipal taxation, imposition and alteration of taxes.
Chapter VII of that Act which included section 298(2)(F)(d)
did not deal with taxation. section 298(2)(F)(d) dealt with
markets, slaughter houses, sale of food etc. Clause (d)
thereunder did not ex facie envisage imposition of any tax.
The Town Areas Act, Chapter III (Sections 14 to 25) dealt
with taxation and town fund. Under section 14, subject to
any general rules or special orders of the Provincial Gov-
ernment in that behalf, the taxes which a TAC could impose
had been stated. It did not mention weighing dues as such.
The Bye-laws envisaged by section 298((2)(F)(d), there-
fore, could not ex facie be said to have empowered the TAC
to impose a tax on the subject matter of that clause. It was
contended before the High Court that the U.P. Town Areas
(Amendment) Act, 1952 (U.P. Act 5 of 1953) cured the defects
in the bye-laws, if any, inasmuch as section 12 of that
Amending Act added clause (g) to section 14(1) of the Town
Areas Act in the following terms:
"Any other tax being one of the taxes mentioned in subsec-
tion (1) of section 128 of the U.P. Municipalities Act, 19
16."
Section 128(1) of the Municipalities Act did not mention
weighing dues as such. But Clause (xiv) of that section
provided:
"Any other tax which the State Legislature has power to
impose in the State under the Constitution."
At the relevant time, after the amendment of section
14(1)(g) of the Town Areas Act, the TAC was thus empowered
to levy any other tax, being one of the taxes mentioned in
sub-section (1) of section 128 of the U.P. Municipalities
Act, 1916.
The High Court on the basis of the above provision
concluded that the TAC became empowered to levy all those
taxes which the State Government could levy under sub-sec-
tion (1) of section 128 of the Municipalities Act; and the
TAC could impose any tax which the State legislature could
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impose under the Constitution. Further, it was concluded
that Entry 52 of list II empowered the State Government to
impose tax on the entry of goods into local area for con-
sumption, use
20
or sale therein and Entry 54 of list II empowered the State
Government to impose a tax on the sale or purchase of goods
and hence the TAC could impose tax on the entry of goods as
well as on the sale or purchase of goods in view of the
Entries 52 and 54 of list II. Referring to the Bye-law No.
1, the High Court concluded that this imposition was upon
the entry of the mentioned articles into Town area for sale
and it was clearly covered by entry 52 of list II of the 7th
schedule and hence it could not be said that the TAC did not
possess the requisite power to levy this tax. In other
words, the weighing dues were construed as entry tax and
sale or purchase of goods tax combined.
The High Court also held that the defect, if any, in
this regard was cured by section 13 of the U.P. Town Areas
(Amendment) Act, 1952 as section 13 of that Act provided:
"Notwithstanding anything contained in the principal Act,
(1) where any tax of the nature described in clause (g) of
Sub-section (1) of Section 14 of the Principal Act & by
whatever name or description called has been imposed, levied
or assessed by any Town Area Committee prior to the com-
mencement of this Act, the same shall be and is hereby
declared to be good and valid in law as if this Act had been
in force on all material dates and the tax had been imposed,
levied and assessed under and in accordance with the appro-
priate provision in that behalf."
(Emphasis supplied by us)
The High Court concluded, and we think rightly, that the
imposition of this tax (weighing dues) had been validated
retrospectively, as if the Amending Act had been in force
even in 1934, when the bye-laws were framed. The validity of
the provision having not been challenged, it cannot be held
that the imposition of this tax was without authority of law
if it could be brought within any of the taxation entries of
List II of the Seventh Schedule of the Constitution. Howev-
er, if the weighing dues did not amount to a tax but a fee,
then the question would be whether the TAC could levy such a
fee. In fact one of the submissions of the appellant is that
it was a fee and not a tax as claimed by the respondent.
A fee is paid for performing a function. A fee is not
ordinarily considered to be a tax. If the fee is merely to
compensate an authority for services performed or as compen-
sation for the services rendered, it
21
can hardly be called a tax. However, if the object of the
fee is to provide general revenue of the authority rather
than to compensate it, and the amount of the fee has no
relation to the value of the services, the fee will amount
to a tax. In the words of Cooley, "A charge fixed by statute
for the service to be performed by an officer, where the.
charge has no relation to the value of the services per-
formed and where the amount collected eventually finds its
way into the treasury of the branch of the Government whose
officer or officers collect the charge is not a fee but a
tax."
Under the Indian Constitution the State Government’s
power to levy a tax is not identical with that of its power
to levy a fee. While the powers to levy taxes is conferred
on the State Legislatures by the various entries in list II,
in it there is Entry 66 relating to fees, empowering the
State Government to levy fees "in respect of any of the
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matters in this List, but not including fees taken in any
Court." The result is that each State Legislature has the
power, to levy fees, which is co-extensive with its powers
to legislate with respect to substantive matters and it may
levy a fee with reference to the services that would be
rendered by the State under such law. The State may also
delegate such a power to a local authority. When a levy or
an imposition is questioned, the Court has to inquire into
its real nature inasmuch as though an imposition is labelled
as a fee, in reality it may not be a fee but a tax, and vice
versa. The question to be determined is whether the power to
levy the tax or fee is conferred on that authority and if it
falls beyond, to declare it ultra rites.
We have seen that a fee is a payment levied by an au-
thority in respect of services performed by it for the
benefit of the payer, while a tax is payable for the common
benefits conferred by the authority on all tax payers. A fee
is a payment made for some special benefit enjoyed by the
payer and the payment is proportional to such benefit. Money
raised by fee is appropriated for the performance of the
service and does not merge in the general revenue. Where,
however, the service is indistinguishable from the public
services and forms part of the latter it is necessary to
inquire what is the primary object of the levy and the
essential purpose which it is intended to achieve. While
there is no quid pro quo between a tax payer and the author-
ity in case of a tax, there is a necessary co-relation
between fee collected and the service intended to be ren-
dered. Of course the quid pro quo need not be understood in
mathematical equivalence but only in a fair correspondence
between the two. A broad co-relationship is all that is
necessary.
22
Where it appears that under the guise of levying a fee
the authority is attempting to impose a tax, the Court has
to scrutinise the scheme to find out whether there is a real
co-relation between the services and the levy whether it is
so co-extensive as to be a pretence of a fee but in reality
a tax, and whether a substantial portion of the fee collect-
ed is spent in rendering the service.
In the instant case replying to paragraph 9 of the writ
petition in paragraph 6 to 9 of the Counter Affidavit in the
High Court the TAC stated that it used to realise the amount
of weighing dues as tax and not as a fee and that no ques-
tion of quid pro quo was involved in the matter. Most of the
carts of the cultivators who brought their produce were
parked in the cart-park which was on the land of the TAC
’and it maintained sanitary staff in order to keep the place
clean as bullocks and carts made the place dirty. Arrange-
ment for lighting the patromax lamps and for keeping the
place clean was made by the TAC. To ensure correct weighment
and to prevent cheating and defrauding bakshis and peons of
TAC were deputed to supervise the daily weighing of the
goods and the TAC maintained standard weights and measures
in case of any dispute which were to be settled. The weights
of persons were also checked and verified by the TAC and its
seal was affixed to those weights in order to prevent cheat-
ing. In paragraph 12 it was stated that TAC employed about
40 sweepers out of which about half were especially deputed
for keeping the places where the sale transactions took
place clean. One bakshi, one jamadar and one peon were also
deputed to supervise the selling in order to see that the
bye-laws in respect of weighment were carried out and that
there was no cheating. Thus, the TAC justified the charging
of weighing dues, but conceded that the same was a tax as
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there was no quid pro quo.
The respondent having thus conceded that there was no
quid pro quo, we have to hold, as also was rightly held by
the High Court, that the weighing dues constituted a tax and
not a fee.
We do not find any merit in the appellant’s submission
that there was double taxation in this case. The expression
"double taxation" is often used in different senses, namely,
in its strict legal sense of direct double taxation and in
its popular sense of indirect double taxation. Double taxa-
tion in the strict legal sense means taxing the same proper-
ty or subject matter twice, for the same purpose, for the
same period and in the same territory. To constitute double
taxation, the two or more taxes must have been (1) levied on
the same property or subject matter, (2) by the same Govern-
ment or authority, (3) during
23
the same taxing period, and (4) for the same purpose. "There
is no double taxation, strictly speaking" says Cooley,
"where (a) the taxes are imposed by different States, (b)
one of the impositions is not a tax, (c) one tax is against
property and the other is not a property tax, or (d) the
double taxation is indirect rather than direct."
In the instant case there cannot be said to be double
taxation as there is no such taxation imposed by the TAC for
the same period on the same goods at the same time and for
the same purpose.
Where more than one legislative authority, such as the
State Legislature and a local or municipal body possess the
power to levy a tax, there is nothing in the Constitution to
prevent the same person or property being subject to both
the State and municipal taxation or the same legislature
exercising its power twice for different purposes. In Avind-
er Singh v. State of Punjab, [1979] 1 SCR 845, the State of
Punjab in April, 1977 required the various municipal bodies
in the State to impose tax on the sale of India made foreign
liquor @ Rs. 1 per bottle w.e.f. 20.5.1977. The municipal
authorities having failed to take action pursuant to the
directive the State of Punjab directly issued a Notification
under section 90(5) of the Punjab Municipal Corporation Act,
1976 and similar provision of the Municipal Act 1911. The
petitioner challenged the Constitutional validity of the
said statutes and the levy on the, inter alia ground of
double taxation. Krishna Iyer, J. speaking for the Court
held: "There is nothing in Article 265 of the Constitution
from which one can spin out the Constitutional vice called
double taxation. (Bad’ economics may be good law and vice
versa). Dealing with a somewhat similar argument, the Bombay
High Court gave short shrift to it in Western India Theatres
(AIR 1954 Bom. 261). Some undeserving contentions die hard,
rather survive after death. The only epitaph we may inscribe
is: Rest in peace and don’t be re-born. If on the same sub-
ject matter the legislature chooses to levy tax twice over
there is no inherent invalidity in the fiscal adventure save
where other prohibitions exist." We do not find materials in
this case to allow the contention to be re-born. The submis-
sion is accordingly rejected.
The contention that the tax is discriminatory in view of
the exemptions granted to some of the products and to those
that enter the TAC by rail or motor transport is equally
untenable. It is for the legislature or the taxing authority
to determine the question of need, the policy and to select
the goods or services for taxation. The courts cannot review
these decisions. In paragraph 16 of the counter affidavit
24
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the TAC tried to explain the reason of not taxing salt,
sugar and rice stating that they were not local produce but
were imported from distant places and that the tax was
levied only on the local produce which came from the neigh-
bouring places. Courts cannot review the wisdom or advisa-
bility or expediency of a tax as the court has no concern
with the policy of legislation, so long they are not incon-
sistent with the provisions of the Constitution. It is only
where there is abuse of its powers and transgression of the
legislative function in levying a tax, it may be corrected
by the judiciary and not otherwise. Taxes may be and often
are oppressive, unjust, and even unnecessary but this can
constitute no reason for judicial interference. When taxes
are levied on certain articles or services and not on others
it cannot be said to be discriminatory. Cooley observes:
"Every tax must discriminate; and only the authority that
imposes it can determine how and in what directions." The
TAC having decided to impose weighing dues on the goods
mentioned in the Bye-Laws it is not for the court to ques-
tion it on the ground that some similar commodities or
commodities arriving by rail or road were not subjected to
the tax.
The tax having not been found to have been discriminato-
ry or otherwise illegal we do not find any force in the
submission that it imposed any unreasonable restriction on
the appellants’ rights guaranteed under Article 19(1)(g) of
the Constitution of India.
In the result, we find no merit in this appeal and it is
accordingly dismissed. Considering the facts and circum-
stances of the case we, however, make no order as to costs.
Interim orders, if any, stand vacated.
Y. Lal Appeal dismissed.
25