Tambe, J.

(1) This is a petition under Article 226 of the constitution of India, wherein the vires of the Gold Control Rules, contained in part XIIA of the Defence of India Rules, have been challenged. In the prayer clauses of the petition no doubt, validity of the entire rule were not challenged but only some of the rule were not mentioned. But the arguments advanced before us the were in respect of rules in general. If would not therefore be necessary to consider each rule separately.

(2) The two petitioners before us are dealers in gold. They profess and parties Jain religion. The two petitioners carry onto business in the name and style of ""Messrs. Chandkumar Amichand Co"". The principal business of the petitioner is in bullion. They buy and sell gold incourse of their business. In their petition they say that the business carried on by the them is on a vast scale. Eleven persons are employed by them in the firm and the annual salary to the Rs. 20,000. The firm is also a registered dealer for the purpose of the sale - tax and the petitioners claim that he sales - tax paid by them in S.Y. 2018 amounted to Rs. 2,56, 395,72 nP.

(3) The challenge made by the petitioners is in substance now confined to the two grounds. Firstly, it is contend that the rule made are in excess of the rule making power to the central Government, and secondly that at any rate the rules contravene the fundament rights conferred on the petitioners under Articles 25 and 26 of the constitution of the India. The other contentions which have been raised by the petitioner satiated before us. But Mr. Mehta, learned counsel for the petitioners stated before us that he did d not advance any arguments on those contentions because the matter stood concluded by the recent decision the their Lordship of the supreme court in Makhan Singh Tarsikka v. State of punjab AIR 1964 SC 381. Mr. Mehta, however stated that the petitioners marries these contentions I the supreme court if so advised.

(4) To appreciate the contentions raised before us it is would be necessary to refer to the incidents relating to the promulgation of these impugned rules., it is common knowledge that the on 8th September 1962 Chines troops crossed the Indian Border. By 20th October 1962, the aggression by China on the India Borders the was a on large scale. On 26th October 1962, the president offend, in execs of the powers conferred on him by Article 352 of the constitution, declared Thai a grave emergency exists, where byte security of India is threatened by external aggression. By reason of this proclamation the provisions of the Article 358 of the constitution immediately came into play. That the article provides that while a proclamation of the emergency is in operation nothing in Article 19 shall restrict the power of the state as defined in part III to make any law or to take any excessive action who is a the state would but for the provisions contained in that part be competent to make or to take but any law so made shall to the extent of the incompetence, cease to have effect to the as soon as the proclamation ceases to operate, except as respect things done or omitted to be done before the law so ceases to have effect. The declaration oft emergency further under Artless. That the 359 empowered further under Article 359 empower the presidents ""to declare that he right to move any court for the enforcement of such the rights conferred by part III as may be mentioned in the order and all proceedings pending in any court for the which the shall informants of the right mentioned shall remain suspended for the period during which the proclamation of the is force or of such shorter period a may be specified I note orders"" it is a necessary to notice two other Articles, and they are Article 250 and 353 (b). Art 250 provides:

""250 (1) Notwithstanding anythings in this Chapter Parliament shall, while a proclamation of Emergency is in operation, have power to make law for the whole or any