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PETITIONER:

HARISHANKAR BAGLA AND ANOTHER

Vs.

RESPONDENT:

THE STATE OF MADHYA PRADESH.

DATE OF JUDGMENT:

14/05/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

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. 3-

Promulgated 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 legislation-

Whether can be, delegated-Principles underlying it-

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Requirements.of permit by clauses 3 and 4 of the Control

Order--Whether in conflict with ss. 27, 28, 41 of the

Railway Act.

381

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

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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

thereunder. 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 uncon-

stitutional on that ground.

JUDGMENT:

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,

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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 thereunder may

provide-

(a) for regulating by licences, permits or otherwise the

production or manufacture of any essential com-

modity;.........

(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," "

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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

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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 Commis-

sioner 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

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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 4.

(1) 293 US 388. (3) [1938] A.C. 708.

(2) 295 U.S. 495.

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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 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

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the High Court thought that the conferment of power of the

widest amplitude to make an order inconsistent with the pre-

existing 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 thereunder. 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 unrepealed 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, how-

ever, 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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