N.A. Chidambaram Chettiar Firm vs The Govt. of Tamil Nadu

Kailasam, C.J.—This petition is filed under Arts. 132 and 133 of the Constitution of India for the grant of a certificate by this Court that the

case involves a substantial question of law as to the interpretation of the Constitution as provided under Art. 132(1) of the Constitution of India and

that it fulfils the requirements of Art. 133 of the Constitution.

The petitioner filed a Writ Petition for the issue of a Writ of Declaration that the Tamil Nadu Debt Relief Act, 1976 (President''s Act for Tamil

Nadu 31 of 1976) was unconstitutional, illegal and void, and for the issue of a Writ of Mandamus directing the respondents therein to forbear from

enforcing or attempting to enforce the provisions of that Act and the Tamil Nadu Debt Relief Rules 1976. By a judgment delivered by us on 19th

August, 1976, in W. P. No. 2997 of 1976 etc. (batch) we held that there was no substance in any of the contentions raised by the learned counsel

for the petitioner and that the impugned legislation fell within the powers of the State Legislature and could not be attacked on any one of the

grounds. Holding that the petitions were totally devoid of any substance, we dismissed the petitions.

In this petition for grant of leave of appeal to the Supreme Court, learned counsel for the petitioner submits that the requirements of Arts. 132

and 133 of the Constitution are satisfied and that this is a fit case for granting leave to appeal to the Supreme Court.

Mr. Venugopal, learned counsel for the petitioner, submits that neither the Supreme Court nor any other High Court have decided the question

whether the suspension of Article 19 of the Constitution in regard to the right of trade will affect the trader''s right to complain of violation of Part

XIII (Arts. 301 to 304) of the Constitution; nor is there any decision deciding the question as to the legislative competence. Learned counsel also

submitted that the question whether the suspension of the right to trade would suspend commerce and intercourse under Arts. 301 to 304(b) of the

Constitution has not been decided. He further submitted that the question whether the law relating to non-money lending and non-agricultural debts

is within the legislative competence of the State and whether they are severable had also not been finally settled. We have considered the three

points raise by the learned counsel. In disposing of the Writ Petition we have observed that as Emergency had been proclaimed and under the

President''s proclamation the right to enforce fundamental rights had been denied, the petitioners were deprived of their right to question the validity

of the enactment on the ground that it infringed the fundamental rights conferred on the citizen. The two points urged by the learned counsel were

about the competency of the State Legislature to enact the impugned legislation and the petitioner''s unrestricted right to trade, commerce and

intercourse throughout the territory of India under the rights conferred by Arts. 301 to 304 of the Constitution of India. We have considered the

questions in full. We have held that the legislative competency of the State can not be questioned in view of the decision of the Federal Court in

Subrahmanyan v. Muttuswami (AIR 1941 FC 47) and that the contention that the petitioner''s right to trade, commerce and intercourse was

conferred under Article 301 to 304 of the Constitution will not be available to them, as they have no right to enforce the fundamental right to trade

guaranteed under Art. 19 of the Constitution. We have observed that they cannot make any claim as money lender or pawn broker as being

entitled to commerce or intercourse and that in any event, their right to commerce and intercourse will also be subject to the fundamental right to

trade. In arriving at this conclusion we followed the decisions of the Supreme Court in Additional District Magistrate, Jabalpur Vs. Shivakant

Shukla, . As a result we dismissed the Writ Petitions in limine, holding that the impugned legislation fell within the powers of the State Legislature,

that it could not be attacked on the ground of interference with trade and that the petitions were totally devoid of any substance.

Learned counsel submits that the question of legislative competence as well as right to trade is of great importance to the citizens in general and

money lenders and pawn brokers in particular and as such is a substantial question of law. He also submits that a substantial question of the

interpretation of the provisions of the Constitution is involved and that therefore this is a fit case for granting leave to appeal to the Supreme Court.

There can be no doubt that the questions are very important and involve the interpretation of the provisions of the Constitution. But, in our view,

the question do not admit of two opinions, for, there can be no doubt about the competency of the State Legislature to enact the impugned

legislation. As we feel that the question is not fairly open to argument, it will not be a substantial question of law.

In Rimmalapudi Subba Rao Vs. Noony Veeraju and Others, a Full Bench of this Court approved the test laid down in M. C. Patail v. H. G.

Ariff, ILR 13 Rang 744 : AIR 1936 Rang 125, that ""unless it was fairly open to argument that the decision of the High Court on a question of law

could have been otherwise, there would be no substantial question of law."" After a consideration of the cases cited before it, the Full Bench did not

agree with the view expressed in Rajah Mahadeva Royal Y.B. Vs. Rajah Veerabasava Chikka Royal and Another, that, if the words ""substantial

questions were to be understood in their being of substance to the parties, it must be held that the decision in regard to the non-admissibility of the

documents was a substantial question on which would entitle the petitioner to have a certificate. The Full Bench expressed the view that it was not

possible to say from what the learned Judges actually said in that case whether they thought that the contention as to admissibility was arguable,

though they themselves found no merits in it. The Full Bench reiterated the view expressed by a Bench of this Court in R. Ramachandra Rao Vs.

T.G. Narayana Rao, wherein it was held that the Court did not understand the decision in Rajah Mahadeva Royal Y.B. Vs. Rajah Veerabasava

Chikka Royal and Another, to lay down that, whenever a question as to the admissibility of any document was raised in an appeal and that

question was decided in one way, it followed ipso facto that there was a substantial question of law which would justify the grant of a certificate

under S. 110, C.P.C. The Full Bench held, that, when a question of law was fairly arguable and when there was room for difference of opinion on

it, then such a question would be a substantial question of law.

Applying this test, the question involved in this case cannot be said to be fairly arguable. In this view, we are unable to accept the contention of

the learned counsel that a substantial question of law is involved. The petitioner is not entitled to certificate also on the ground that the question

involved has been decided by the Federal Court in AIR 1941 47 (Federal Court) and by the Supreme Court in Additional District Magistrate,

Jabalpur Vs. Shivakant Shukla, .

The result is that the petitioner is not entitled to a certificate either under Art. 132 or under Art. 133 of the Constitution. The petition is

dismissed.

Petition dismissed.