CIVIL

Section 297(1) (a) of Govt. of India Act 1935

S. 297(1) (a), Govt. of India Act, 1935, and it is contended that the prohibitions contained in the impugned Act in regard to the use, consumption, purchase, transport, possession and sale of intoxicating liquor will necessarily amount to prohibiting and restricting inter-provincial commerce, and inasmuch as they tend to stop and restrict entry into or export from the Province of Bombay of goods of a particular Class or description, the Act contravenes S. 297(1) (a). This section runs as follows:

“No Provincial Legislature or Govt. shall

(a) by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that list relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the Province of goods of any Class or description.. . .. “

It should be noticed that this provision refers to “trade and commerce within the Province”, which is the Subject of entry 27 of List II and to “production, supply and distribution of commodities” which is the Subject of entry 29 of List II. The provision virtually means that import into or export from a Province of goods of any Class or description cannot be prohibited or restricted on the ground that it will affect. trade and commerce within the Province or the production, supply and distribution of commodities. If therefore by any law framed by a Provincial Legislature relating to or based on the Subjects of entry 27 or entry 29 of List II, the entry into or export from the Province of any goods is prohibited, or restricted, such a law will be invalid. But, here, we are concerned not with a law which purports to be made and was trade by virtue of entry 27 or entry 29 of List II, but a law which is Claimed to have been made by virtue of entry 31 of that List and certain other entries therein. S. 297 (1) (a) therefore has no application to the present case. This was Clearly pointed out in the case of ‘Bhola Prasad v. Emperor’, 1942 F C R 17. In that case, the Bihar Excise (Amendment) Act, 1940, which amended the Bihar and Orissa Excise Act, 1915, was challenged as contravening S. 297 (1) (a), but it was held to be a valid Act on grounds already stated, as will appear from the following observations of Gwyer C J.,:

“The second point raised on behalf of the appellant was that S. 19 (4) of the Act of 1915, as amended by the Act of 1940, is invalid because repugnant to S. 297 (1) (a) of the Constitution Act. We confess that we have difficulty in appreciating this argument. S. 297 (1) (a) enacts that . . . . It is plain beyond Words that this provision only refers to legislation with respect to entry No. 27 and entry No. 29 in the Provincial Legislative List; it has no application to legislation with respect do anything in entry No. 31. A Provincial Legislature, if it desires to pass a law prohibiting export from, or import into, the Province, must therefore seek for legislative authority to do so in entries other than entry No. 27 or entry No. 29. If it can point to legislative powers for the purpose derived from any other entry in the Provincial Legislative List, then its legislation cannot be challenged under S. 297(1) (a). There is no Sub-stance at all in the appellant’s arguments on this point.”


Ref: AIR 1951 SC 318 : (1951) SCR 682 : (1951) CriLJ SC 1361

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