J&K HC Holds Licensing Mandate u/r 3 of Brick Kiln (Regulation) Rules, 2017, Not in Violation of Article 19(1)(g) [Read Order]
The Court highlighted that licensing is a reasonable restriction under Article 19(1)(g) of the Constitution.
The High Court of Jammu & Kashmir, in a recent case, has held that the licensing mandate under Rule 3 of the Jammu and Kashmir Brick Kiln (Regulation) Rules, 2017, does not violate the constitutional right to trade under Article 19(1)(g).
The decision came in writ petitions filed by Kehar Singh and other brick traders, who challenged seizure orders issued by the District Magistrates of Kathua and Samba against vehicles transporting bricks imported from outside the Union Territory.
The petitioners argued that the licensing requirement under Rule 3 of the J&K Brick Kiln (Regulation) Rules, 2017 was intended only for kiln owners engaged in manufacturing and not for dealers importing finished bricks.
The petitioners further submitted that they were registered GST payers and their trade was already regulated under the Goods and Services Tax regime.
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They described the seizure orders passed by the Deputy Commissioners as arbitrary and violative of their fundamental right to carry on trade under Article 19(1)(g) of the Constitution.
On the other hand, the respondents argued that the Brick Kiln Act expressly includes dealers within its scope. Section 2(e) defines a dealer as a person engaged in the business of selling bricks, and Section 15 imposes restrictions on both manufacturers and dealers regarding pricing.
The respondents also stressed that licensing requirements under Rule 3 constitute a reasonable restriction under Article 19(6) of the Constitution.
They argued that the Act empowers licensing authorities to inspect, seize, and regulate the brick trade, and that the restrictions imposed were not blanket prohibitions but conditions necessary to ensure lawful trade.
In their view, the petitioners’ reliance on GST registration was misplaced, as taxation and licensing operate in separate spheres and complement rather than contradict each other.
Justice Wasim Sadiq Nargal underscored that Article 19(1)(g) guarantees the right to practice any profession or carry on any occupation, trade, or business, but this right is not absolute.
It was observed that the right to carry on trade or business, though fundamental, is not absolute. Article 19(6) expressly authorises the State to impose reasonable restrictions in the interest of the general public.
It was further observed that the regulation of the brick industry clearly serves public interest. The industry impacts land use, environmental quality, and employment conditions. Licensing ensures that brick kilns operate within permissible environmental norms and that trade in bricks originates only from lawful sources. The licensing condition thus has a direct nexus with legitimate state objectives.
Reliance was placed on the Supreme Court decision in Modern Dental College and Research Centre and others Vs. State of Madhya Pradesh
It was further observed that the brick kiln licensing framework was narrowly tailored, applying only to those engaged in manufacture or trade; it does not prohibit trade but merely regulates it; and the burden imposed in obtaining a licence is minimal compared to the societal benefits of environmental protection and lawful commerce.
In the instant case, the licensing obligation prescribed under Rule 3 of the 2017 Rules applies in equal measure to all dealers engaged in the trade of bricks, irrespective of whether the bricks are manufactured within the Union Territory of Jammu and Kashmir or brought from any other State. The said provision, therefore, does not occasion any preference or discrimination between intra-State and inter-State trade.
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The court observed that the restriction is regulatory in character, uniformly applicable, and thus falls within the ambit of reasonable restrictions permissible under the Constitution, conforming with the spirit and mandate of Article 303. 73.
Thus, it was concluded that the statutory requirement of obtaining a license for dealing in bricks doesn’t infringe the fundamental right to carry on trade or business under Article 19(1)(g) of the Constitution. Accordingly, the restriction imposed by Rule 3 is a constitutionally permissible regulatory measure under Article 19(6).
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