Executive instructions cannot be used to impose restrictions on fundamental rights or freedom of trade and commerce. Any such restrictions must be imposed by law.

R. C. PATNAIK, J.

( 1 ) IN these writ applications under Art. 226 of the Constitution of India, the petitioners assail the action of the State Government and its officials refusing to grant T. T. Permit for export of fire-wood and Charcoal from the State to places outside it.

( 2 ) THE petitioners carry on business in Charcoal and fire-wood. They purchase the same either from State agencies or private parties and sell the same either inside the State or transport the same for sale outside. Their applications for grant of Timber Transit Permit for transport of Charcoal or fire-wood, as the case may be, outside the State were either rejected vide Annexure-3 dt. 31-8-86 in O. J. C. No. 2515/85 or not processed as in the other two writ applications on the ground that a ban had been imposed on the export of Charcoal and fire-wood to places outside. Such actions of the State Government and its officials despite the decision of this Court in O. J. C. No. I078/81 (S. K. Shariff v. State of Orissa) decided on 27-7-1981, according to the petitioners, were liable to be deprecated. The right of the petitioners to carry on business was a fundamental right guaranteed under Art. 19 (1) (g) of the Constitution. Besides, the ban offended Art. 301 of the Constitution.

( 3 ) IN the return submitted by the opposite parties, the short and simple plea is that ban had been imposed "by the executive instructions issued from time to time by the State Government and Chief Conservator of Forests, Orissa, on export of firewood to outside the State" and that was the reason and basis for refusal to grant Timber Transit Permit. Reference has been made in the return to the minutes of the proceedings of the High level committee presided over by the Minister, Forests and to Government instructions, detailed enumeration whereof is unnecessary.

( 4 ) SHORN of unnecessary details, the short question is, in absence of law, could the State Government in exercise of executive powers impose the bar or restriction on transport of Charcoal or firewood from the State to places outside ?

( 5 ) ART. 19 (1) (G) of the Constitution guarantees the right of the citizen to carry on any occupation, trade or business. The said right is however subject to any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right as provided in Art. 19 (6 ). Art. 301 in Part XIII declares that trade, commerce and intercourse throughout the territory of India shall be free. That, however, is subject to the other provisions contained in the said part and so far as is relevant for our purpose, to Art. 304 (b) which authorises the legislature of a State to make law imposing such reasonable restriction on the freedom of trade, commerce or intercourse with or within the State as being required in public interest.

( 6 ) IT is, therefore, the categorical imperative that the right guaranteed under Art. 19 (1) (g) or that declared by Art. 301 cannot be prejudicially curtailed or infringed except by law. Law in the context of Art. 19 means statutory law or statutory rules or regulations and in the context of Art. 301, statutory law. Imposition of ban or restriction affecting the right guaranteed by Art. 19 (1) (g) or 301 by executive instructions is ultra vires.

( 7 ) SUCH a controversy should not have arisen after the decision of this Court in S. K. Shariff v. State of Orissa O. J. C. No. 1078 of 1981 decided on 27-7-1981 where similar action of some instrumentalities of the State was struck down as ultra vires. To prop up our conclusion aforesaid, we refer to a few authorities. In Sri Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249, by an executive instruction the Managing Committee of a school was sought to be divested of its right to hold the properties of the school as trustee on the strength of certain provisions in the Bihar Education Code. The Supreme Court referring to Art. 13 of the Constitution observed that the Managing Committee co