Harishankar Bagla & ANR Vs. The
State of Madhya Pradesh [1954] INSC 64 (14 May 1954)
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 465 1955 SCR 313
CITATOR INFO :
R 1957 SC 478 (11) R 1957 SC 510 (14) RF 1957
SC 896 (12) R 1960 SC 475 (4,9,13,16) RF 1961 SC 4 (4,15) R 1961 SC 705 (17) R
1961 SC1602 (12) F 1961 SC1731 (13) RF 1964 SC 381 (38) R 1965 SC1107 (60) R
1966 SC1788 (10,14) RF 1967 SC 212 (27) RF 1967 SC 669 (21) RF 1968 SC1232
(15,53,82,95) RF 1970 SC 564 (185) RF 1973 SC 106 (147) RF 1973 SC1461
(227,450,566,1847,1848,1998) R 1974 SC 366 (56) E&D 1974 SC 543 (13) R 1974
SC1660 (18) R 1978 SC 851 (39) RF 1978 SC1296 (12) E 1980 SC 350 (4) R 1982
SC1126 (10,11) RF 1983 SC1019 (29,30) F 1987 SC1802 (9) R 1990 SC 560 (13,31)
RF 1991 SC 672 (29)
ACT:
Constitution of India-Art. 19(1)(f) and
(g)-Cotton Textile, (Control of Movement) Order, 1948, cl. 3Promulgated under
s. 3 of Essential Supplies (Temporary Powers) Act, 1946-PermitRequirement of-to
dispose of or transport cotton textiles-Whether violation of Art. 19(1)(f) and
(g)-Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946) ss. 3,
4,6-Whether ultra vires the Legislature on ground of delegation Of legislative
powers-s.
6-Whether repeals or abrogates-pre-existing
laws-Effect of the section -Delegation-Essential power of legislationWhether
can be, delegated-Principles underlying itRequirements of permit by clauses 3
and 4 of the Control Order--Whether in conflict with ss. 27, 28, 41 of the
Railway Act.
HEADNOTE:
Clause 3 of the Cotton Textile (Control of
Movement) Order, 1948, promulgated by the Central Government under section 3 of
the Essential Supplies (Temporary Powers) Act, 1946, does not deprive a citizen
of the right to dispose of or transport cotton tex B tiles purchased by him. It
requires him to take a. permit from the Textile Commissioner to enable him to
transport them. The requirement of a permit in this respect cannot be regarded
as an A unreasonable restriction on the citizen's right under sub-clauses (f)
and (g) of article 19(1) of the Constitution.
The policy underlying the Control Order is to
regulate the transport of cotton textiles in a manner that will ensure an even
distribution of the commodity in the country and make it available at a fair
price to all. The grant or a refusal of a permit is to be governed by the
policy and the discretion given to the Textile Commissioner is to be exercised in
such a way as to effectuate this policy. The conferment of such a discretion
cannot be called invalid and if there is an abuse of power there is ample power
in Courts to undo the mischief.
Messrs. Dwarka Prasad Laxmi Narain v. The
State of Uttar Pradesh (([1954] S.C.R. 803) distinguished.
It was settled by the majority judgment in
the Delhi Laws Act case ([1951]'S.C.R. 747) that the essential powers of
legislation cannot be delegated.
The Legislature must declare the policy of
the law and the legal principles which are to control any -given cases and must
provide a standard to guide the officials or the body in power to execute the
law.
The Legislature has laid down such a
principle in the Act and that principle is the maintenance or increase in
supply of essential commodities and of securing equitable distribution and
availability at given prices.
The preamble and the body of the sections in
the Essential Supplies (Temporary Powers) Act, 1946, sufficiently formulate the
legislative policy and the ambit and the character of the Act is such that the
details of that policy can only be worked out by delegating that power to a
subordinate authority within the framework of that policy.
Therefore section 3 of the Act is not ultra
vires the Legislature on the ground of delegation of legislative power.
Section 4 of the Act enumerates the classes
of persons to whom the power could be delegated or sub-delegated by the Central
Government and it is not correct to say that the instrumentalities have not
been selected by the Legislature itself. Accordingly section 4 of the Act is
not ultra vires on the ground of excessive delegation of legislative powers.
Shannon v. Lower Maintand Dairy Products
Board ([1938] A.C. 708) applied.
382 The requirements of a permit by clause 3
and the provisions of clause 4 of the Central Order which empower the Textile
Commissioner to direct a carrier to close booking or transport of cloth
apparel, etc., are not in conflict with sections 27, 28 and 41 of the Railways
Act. These clauses merely supplement the relevant provisions of the Railways
Act and do not supersede them.' Section 6 of the Act does not either expressly
or by implication repeal any of the provisions of the preexisting laws ; nor
does it abrogate them. Those laws remain untouched and unaffected so far as the
statute book is concerned. The repeal of a statute means that the repealed
statute must be regarded as if it had never been on the statute book. The
effect of section 6 is not to repeal those laws or abrogate them but simply to
by-pass them where they are inconsistent with the provisions of the Essential
Supplies (Temporary Powers) Act, 1946 or the orders made there under. Even
assuming that the existing law stands repealed by implication, such abrogation
or repeal is by force of the legislative declaration contained in section 6 and
is not by force of the order made by the delegate under -section 3. Accordingly
there is no delegation involved in the provision of section 6 and it cannot be
held unconstitutional on that ground.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 7 of 1953.
Appeal by Special Leave from the Judgment and
Order of the High Court of Judicature at Nagpur dated the 15th.
September, 1952, in Criminal Case No. 45 of
1951 from the Order of the Court of the Magistrate 1st Class, Hoshangabad, in
Criminal Case No. 75 of 1949.
H.J. Umrigar, Rameshwarnath and Rajinder
Narain for the appellants.
T. L. Shevde, Advocate-General of Madhya
Pradesh (T. P. Naik and I. N. Shroff, with him) for the respondent. 1954.
May 14. The Judgment of the Court was
delivered by MEHAR CHAND MAHAJAN C.J.--The facts giving rise to this appeal are
these: The appellant, Harishankar Bagla, and his wife, Smt. Gomti Bagla, were
arrested at Itarsi, by the Railway Police on the 29th November, 1948, for
contravention of section 7 of the Essential Supplies (Temporary Powers) Act,
1946, read with clause (3) of the Cotton Textiles (Control of Movement) 383
Order., 1948, having been found in possession of new cotton cloth " weighing
over six maunds which cloth, it was alleged,was being taken by them from Bombay
to Kanpur without any permit. After various vicissitudes through which the
chalan passed the case was eventually withdrawn by the High Court to itself on
the 3rd of September,'1951, as it involved a decision of constitutional issues.
By its order dated the 15th September, 1952, the High Court upheld the
provisions of sections 3 and 4 of the Essential Supplies (Temporary Powers)
Act, 1946, as constitutional. It also upheld the constitutionality of the
impugned Order. Section 6 of the Act was held to be inconsistent with the
provisions of the Railway Act but it was held that its unconstitutionality did
not affect the prosecution in this case. The High Court directed that the prosecution
should proceed and the records sent back to the trial Court for being dealt
with in accordance with law. Leave to appeal was given both to the appellants
and the respondent and requisite certificates under articles 132 and 134 of the
Constitution were granted. This appeal along with the connected appeal No. 6 of
1953 is before us on the basis of the said certificates.
Mr. Umrigar, who appeared in this and the
connected appeal, urged the following points for our consideration and
decision:
(1) That sections 3 and 4 of the Essential
Supplies (Temporary Powers) Act, 1946, and the provisions of the Cotton Cloth
Control Order contravened the fundamental right of the appellants guaranteed by
article 19(1)(f) and (g) of the Constitution;
(2) That section 3 of the Essential Supplies
(Temporary Powers) Act, 1946, and in particular section 4 were ultra vires, the
Legislature on the ground of excessive delegation of legislative power;
(3) That section 6 having been found ultra
vires, section 3 was inextricably connected with it and that both the sections
should have been declared ultra vires on that ground; and (4) That the impugned
Control Order contravened existing laws, viz., the provisions of section 27,28
and 384 41 of the Indian Railways Act, and was thus void in its entirety.
The respondent challenged the judgment of the
High Court that section 6 of the Act was unconstitutional.
In our judgment, none of the points raised by
Mr. Umrigar have any validity. On the other hand, we are of the opinion that
the High Court was in error in declaring section 6 of the Act unconstitutional.
Sections 3 and 4 of the Essential Supplies
(Temporary Powers) Act, 1946, provide as follows:"3. (1) The Central
Government, so far as it appears to it to be necessary or expedient for
maintaining or increasing supplies of any essential commodity, or for socuring
their equitable distribution and availability at fair prices, may by order
provide for regulating or prohibiting the production, supply and distribution
thereof and trade and commerce therein (2) Without prejudice to the generality
of the powers conferred by sub-section (1), an order made there under may
provide(a) for regulating by licences, permits or otherwise the production or
manufacture of any essential commodity;.........
(d) for regulating by licences, permits or
otherwise the storage, transport, distribution, disposal, acquisition, use or
consumption of any essential commodity;
4. The Central Government may by notified
order direct that the power to make orders under section 3 shall, in relation
to such matters and subject to such conditions, if any, as may be specified in
the direction, be exercisable also by(a) such officer or authority subordinate
to the Central Government, or (b) such State Government or such officer or
authority subordinate to a State Government as may be specified in the
direction." Section 6 runs thus:
"6. Any order made under section 3 shall
have effect notwithstanding anything inconsistent therewith 385 contained in
any enactment other than this Act or any instrument having effect by virtue of
any enactment other than this Act." Under powers conferred by section 3
the Central Government promulgated on 10th September, 1948, Cotton Textiles
(Control of Movement) Order, 1948. Section'2 of this order defines the
expressions "apparel," " carrier," " hosiery,"
" cloth " and " textile commissioner." Section 3 of the
order runs as follows:"3. No person. shall transport or cause to be
transported by rail, road, air, sea or inland navigation any cloth, yarn or
apparel except under and in accordance with(i) a general permit notified in the
Gazette of India by the Textile Commissioner, or (ii) a special transport
permit issued by the Textile Commissioner." Section 8 provides that the
Textile Commissioner may, by notification in the Gazette of India, prescribe
the manner in which any application for a special transport permit under this
Order shall be made. The Central Government has prescribed forms for
application for obtaining permits and the conditions under which permits can be
obtained.
The first question canvassed by Mr. Umrigar
was that the provisions of section 3 of the Control Order infringed the rights
of a citizen guaranteed in subclauses (f) and (g) of article 19(1) of the
Constitution. These sub-clauses recognise the right of a citizen to dispose of
property and to carry on trade or business. The requirement of a permit to
transport by rail cotton textiles to a certain extent operates as a restriction
on the rights of a person who is engaged in the business of purchase and sale
of cotton textiles. Clause (5) of article 19 however permits such restrictions
to be placed provided they are in the public interest. During the period of
emergency it was necessary to impose control on the production, supply and
distribution of commodities essential to the life of the community. It was for
this reason that the Legislature passed the Essential Supplies (Temporary
Powers) Act 50 386 authorising the Central Government to make orders from time
to time controlling the production, supply and distribution of essential
commodities. Clause 3 of the Control Order does not deprive a citizen of the
right to dispose of or transport cotton textiles purchased by him. It requires
him to take a permit from the Textile Commissioner to enable him to transport
them. The requirement of a permit in this regard cannot be regarded as an
unreasonable restriction on the citizen's right under sub-clauses (f) and (g)
of article 19(1). If transport of essential commodities by rail or other means
of conveyance was left uncontrolled it might well have seriously hampered the
supply of these commodities to the public. Act XXIV of 1946 was an emergency
measure and as stated in its preamble, was intended to provide for the continuance
during a limited period of powers to control the production, supply and
distribution of, and trade and commerce in, certain commodities. The number of
commodities held essential are mentioned in section 2 of the Act, and the
requirement of a permit to transport such commodities by road or rail or other
means of transport cannot, in any sense of the term, be said, in a temporary
Act, to be unreasonable restriction on the citizen's rights mentioned in
clauses (f) and (g) of article 19(1). The High Court was therefore right in
negativing the contention raised regarding the invalidity of the Control Order
as abridging the rights of the citizen under article 19(1) of the Constitution.
Mr. Umrigar further argued that the Textile
Commissioner had been given unregulated and arbitrary discretion to refuse or
to grant a permit, and that on grounds similar to those on which in Dwarka
Prasad v. The State of Uttar Pradesh (1), this Court declared void section 4(3)
of the Uttar Pradesh Coal Control Order, section 3 of the Control Order in
question should also be declared void. This argument again is not tenable. In
the first place, the appellants never applied for a permit and made no efforts
to obtain one. If the permit had been applied for and refused arbitrarily they
might then have had a right to attack the law on (1) A.T.R. 1954 S.C. 225 ;
[1954] S.C.R. 80o3.
387 the ground that it vested arbitrary and
unregulated power in the textile commissioner. The appellants were not hurt in
any way by any act of the textile commissioner as they never applied for a
permit. They were transporting essential goods by rail without a permit and the
only way they can get any relief is by attacking the section which obliges them
to take a permit before they can transport by rail essential commodities. It
may also be pointed out that reference to the decision of this Court in Dwarka
Prasad's case(1) is not very opposite and has no bearing on the present case.
Section 4(3) of the Uttar Pradesh Coal
Control Order was declared void on the ground that it committed to the
unrestrained will of a single individual to grant, withhold or cancel licences
in any way he chose and there was nothing in the Order which could ensure a
proper execution of the power or operate as a check upon injustice that might
result from improper execution of the same. Section 4(3) of the Uttar Pradesh
Coal Control Order was in these terms:
" The Licensing Authority may grant,
refuse to grant, renew or refuse to renew a licence and may suspend, cancel,
revoke or modify any licence or any terms thereof granted by him under the
Order for reasons to be recorded. Provided that every power which is under this
Order exercisable by the Licensing Authority shall also be exercisable by the
State Coal Controller, or any person authorized by him in this behalf In the
present Control Order there is no such provision as existed in the Uttar
Pradesh Coal Control Order. Provisions of that Control Order bear no analogy to
the provisions of the present Control Order. The policy underlying the Order is
to regulate the transport of cotton textile in a manner that will ensure an
even distribution of the commodity in the country and make it available at a
fair price to all.
The grant or refusal of a permit is thus to
be governed by this policy and the discretion given to the Textile Commissioner
is to be exercised in such a way as to effectuate this policy. The conferment
of such a discretion (i) A.I.R. 1954 S.C. 225; [1954] S.C.R. 803.
388 cannot be called invalid and if there is
an abuse of the power there is ample power in the Courts to undo the mischief
Presumably, as appears from the different forms published in the Manual, there
are directions and rules laid down by the Central Government for the grant or
refusal of permits.
The next contention of Mr. Umrigar that
section 3 of the Essential Supplies (Temporary Powers) Act, 1946, amounts to
delegation of Legislative power outside the permissible limits is again without
any merit. It was settled by the majority judgment in the Delhi Laws Act case
(1) that essential powers of legislation cannot be delegated. In other words,
the legislature cannot delegate its function of laying down legislative policy
in respect of a measure and its formulation as a rule of conduct. The
Legislature must declare the policy of the law and the legal principles which
are to control any given cases and must provide a standard to guide the
officials or the body in power to execute the law. The essential legislative
function consists in the determination or choice of the legislative policy and
of formally enacting that policy into a binding rule of conduct. In the present
case the legislature has laid down such a principle and that principle is the
maintenance or increase in supply of essential commodities and of securing
equitable distribution and availability at fair prices. The principle is clear
and offers sufficient guidance to the Central Government in exercising its
powers under section 3.
Delegation of the kind mentioned in section 3
was upheld before the Constitution in a number of decisions of their Lordships
of the Privy Council, vide Russell v. The Queen (2), Hodge v. The Queen (3),
and Shannon v. Lower Mainland Dairy Products Board (4)and since the coming into
force of the Constitution delegation of this character has been upheld in a
number of decisions of this Court on principles enunciated by the majority in
the Delhi Laws Act case (1).
As already. pointed out, the preamble and the
body of the sections sufficiently formulate the legislative policy and the
ambit and character of I I) [1951] S.C.R. 747.
(2) 7 A.C. 829.
(3) 9 A.C. II7.
(4) [I938] A.C. 708.
389 the Act is such that the details of that
policy can only be worked out by delegating them to a subordinate authority
within the framework of that policy. Mr. Umrigar could not very seriously press
the question of' the invalidity of section 3 of the Act and it is unnecessary
therefore to consider this question in greater detail.
Section 4 of the Act was attacked on the
ground that it empowers the Central Government to delegate its own power
to-make orders under section 3 to any officer or authority subordinate to it or
the Provincial Government or to any officer or authority subordinate to the
Provincial Government as specified in the direction given by the Central
Government. In other words, the delegate has been authorized to further
delegate its powers in respect of the exercise of the powers of section 3. Mr.
Umrigar contended that it was for the Legislature itself to specify the particular
authorities or officers who could exercise power under section 3 and it was not
open to the Legislature to empower the Central Government to say what officer
or authority could exercise the power. Reference in this connection was made to
two decisions of the Supreme Court of the United States of America-Panama
Refining Co. v. Ryan (1) and Schechter v. United States (2). In both these
cases it was held that so long as the policy is laid down and a standard
established by a statute, no unconstitutional delegation of legislative power
is involved in leaving to selected instrumentalities the making of subordinate
rules within prescribed limits and the determination of facts to which the
policy as declared by the Legislature is to apply.
These decisions in our judgment do not help
the contention of Mr. Umrigar as we think that section 4 enumerates the classes
of persons to whom the power could be delegated or sub-delegated by the Central
Government and it is not correct to say that the instrumentalities have not
been selected by the Legislature itself. The decision of their Lordships of the
Privy Council in Shannon's case (3), completely negatives the contention raised
regarding the invalidity of section
(1) 293 US 388. (3) [1938] A.C. 708.
(2) 295 U.S. 495.
390 In that case the Lt. Governor in Council
was-given power to vest in a marketing board the powers conferred by section
4A(d) of the Natural Products Marketing (British Columbia) Act, 1936. The
attack on the Act was that without constitutional authority it delegated
legislative power to the Lt. Governor in Council. This contention was answered
by their Lordships in these terms: " The third objection is that it is not
within the powers of 'the Provincial Legislature to delegate so-called
legislative powers to the Lt.-Governor in Council, or to give him powers of
further delegation This objection appears to their Lordships subversive of the
rights which the Provincial Legislature enjoys while dealing with matters
falling within the classes of subjects in relation to which the Constitution
has granted legislative powers. Within its appointed sphere the Provincial
Legislature is as supreme as any other Parliament; and it is unnecessary to try
to enumerate the innumerable occasions on which Legislatures, Provincial,
Dominion and Imperial, have entrusted various persons and bodies with similar
powers to those contained in this Act." The next contention that the
provisions of the Textile Control Order operate as an implied repeal of
sections 27, 28 and 41 of the Indian Railways Act and are therefore invalid is
also not well founded. The requirement of a permit by clause (3) and provisions
of clause (4) of the Order which empower the Textile Commissioner to direct a
carrier to close the booking or transport of cloth, apparel, etc., are not in
direct conflict with sections 27, 28 and 41 of the Railways Act. The Railways
Act does not exclude the placing of a disability on a railway administration by
the Government or any other authority. This clause merely supplements the
relevant provisions of the Railways Act and does not supersede them. Similar
observations apply to clause (5) which enables the Textile Commissioner to
place an embargo on the transport of certain textiles from one area to another.
There is nothing in the provisions of the order which in any way overrides or
supersedes the provisions of the different sections of the Railways Act
referred to above.
391 The last contention of Mr. Umrigar that
section 6 having been declared invalid, section 3 is inextricably mixed with it
and should also have been declared invalid is also not valid, because apart
from the grounds given by the High Court for holding that the two sections were
not so interconnected that the invalidity of one would make the other invalid,
the High Court was in error in holding that section 6 was unconstitutional.
Section 6 of the Act cited above declare, that an order made under section 3
shall have effect notwithstanding anything inconsistent therewith contained in
any enactment other than this Act or any instrument having effect by virtue of
any enactment other than this Act. In other words it declares that if there is
any repugnancy in an order made under section 3 with the provisions of any
other enactment, then notwithstanding that inconsistency the provisions of the
Order will prevail in preference to the provisions of other laws which are thus
inconsistent with the provisions of the Order. In the view of the High Court
the power to do something which may have the effect of repealing, by
implication, an existing law could not be delegated in view of the majority
decision of this Court in Re: Delhi Laws Act (1), where it was held that to
repeal or abrogate an existing law is the exercise of an essential legislative
power. The learned Judges of the High Court thought that the conferment of
power of the widest amplitude to make an order inconsistent with the preexisting
laws is nothing short of a power to repeal. In our opinion the construction
placed on section 6 by the High Court is not right. Section 6 does not either
expressly or by implication repeal any of the provisions of pre-existing laws;
neither does it abrogate them. Those laws remain untouched and unaffected so
far as the statute book is concerned. The repeal of a statute means as if the
repealed statute was never on the statute book. It is wiped out from the
statute book. The effect of section 6 certainly is not to repeal any one of
those laws or abrogate then;. Its object is simply to by-pass them where they
are inconsistent with the provisions of the Essential Supplies (Temporary
Powers) (I) [1951) S.C.R, 747.
392 Act, 1946, or the orders made there under.
In other words, the orders made under section 3 would be operative in regard to
the, essential commodity covered by the Textile Control Order wherever there is
repugnancy in this Order with the existing laws and to that extent the existing
laws with regard to those commodities will not operate. By-passing a certain
law does not necessarily amount to repeal or abrogation of that law. That law
remains un repealed but during the continuance of the order made under section
3 it does not operate in that field for the time being. The ambit of its
operation is thus limited without there being any repeal of any one of its
provisions. Conceding, however, for the sake of argument that to the extent of
a repugnancy between an order made under section 3 and the provisions of an
existing law, to the extent of the repugnancy, the existing law stands repealed
by implication, it seems to us that the repeal is not by any Act of the
delegate, but the repeal is by the legislative Act of the Parliament itself. By
enacting section 6 Parliament itself has declared that an order made under
section 3 shall; have effect notwithstanding any inconsistency in this order
with any enactment other than this Act. This is not a declaration made by the
delegate but the Legislature itself has declared its will that way in section
6. The abrogation or the implied repeal is by force of the legislative
declaration contained in section 6 and is not by force of the order made by the
delegate under section 3. The power of the delegate is only to make an order
under section 3. Once the delegate has made that order its power is exhausted.
Section 6 then steps in wherein the
Parliament has declared that as soon as such an order comes into being that
will have effect notwithstanding any inconsistency therewith contained in any
enactment other than this Act. Parliament being supreme, it certainly could
make a law abrogating or repealing by implication provisions of any
pre-existing law and no exception could be taken on the ground of excessive
delegation to the Act of the Parliament itself. There is no delegation involved
in the provisions of section 6 at all and that section could not be held to be
unconstitutional on that ground, 393 The result therefore is that in our
opinion the provisions of sections 3, 4 and 6 of the Essential Supplies
(Temporary Powers) Act, 1946, are constitutional and. the impugned order is
also constitutional. Accordingly' this appeal is dismissed, and the trial Court
is directed to proceed expeditiously with the case in accordance with law.
Appeal dismissed.
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