The main legal point established in the judgment is that executive orders made under the authority of a statute are subject to judicial scrutiny, and if found to be beyond the scope of the conferred power, they are void and of no effect.

Ramaswami, J.

1. It is essential at the outset to relate the material facts giving rise to this rule.

2. On 14-11-1946, Provincial Government issued a notification Under Sec. 6 (1), Bihar Maintenance of Public Order Ordinance, 1946. By this notification, Government banned all processions, meetings, or assemblies except with the permission of the District Magistrate. The Ordinance was repealed on 15-3-1947, but the notifications issued under it were kept in force by Section l9, Bihar Maintenance of Public Order Act, 1947. The applicants were prosecuted before a Magistrate on the allegation that on 11-12-1948 they had assembled in uniforms to hold R. S. S. parade in the compound of the hospital at Teghra. On 29-12-1948 the learned Magistrate convicted the applicants Under Sec. 6 (4) of the Act and sentenced them to suffer rigorous imprisonment for three months each and to pay a fine of Rs. 500 each. On 5-2-1949 the learned Sessions Judge upheld the conviction but reduced sentence of imprisonment to the period already undergone and the amount of fine to Rs. 300 each.

3. The first argument in Support of the rule is that the notification issued by the Provincial Government is beyond the scope of the powers conferred Under Section 6, Bihar Maintenance of Public Order Ordinance. Learned Advocate referred to the unreported decision, Ramkhelawan Singh V/s. The King (Cr. App. No. 270 of 1948 decided on 8-12-1948) in support of his argument.

4. Sec. 6 of the Ordinance provides :

"6. (1) The Provincial Government may, for the purpose of securing the public safety or the maintenance of public order, by general or special order, prohibit, restrict or impose conditions upon, the holding or of taking part in public processions, meetings or assemblies.

(2) For the purposes of Sub-Section (1) any procession, meeting or assembly, which is open to the public or any class or portion of the public, whether held in a public or a private place and whether admission thereto is restricted by the issue of tickets or otherwise, shall be deemed to be a public procession, meeting or assembly as the case may be.

(3) Any police officer may take such steps, and use such force, as may be reasonably necessary for securing compliance with any order made under this Section

(4) If any person contravenes any order made under this section he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both."

5. The section enables the Provincial Government to prohibit public meetings and in Sub-Section (2) enacts that a public meeting would be deemed to include a meeting which is open to any class or portion of the public whether held in a public or private place and whether admission thereto is restricted by the issue of tickets or otherwise. But the statute does not confer upon the Provincial Government the power to prohibit other meetings, for instance, meetings to which the public or any class of them are not admitted. The Government notification dated 14-11-1946, reads as follows :

"In exercise of the powers conferred by Sub-Section (1) of Sec. 6, Bihar Maintenance of Public Order Ordinance, 1946 (Bihar Ordinance IV [4] of 1946), the Governor of Bihar, in view of the communal situation in the province, is pleased to direct that no meeting or procession shall be held without the sanction of the District Magistrate or Additional District Magistrate, as the case may be."

6. Since this notification prohibits any meeting or procession without the sanction of the District Magistrate or Additional District Magistrate, it is manifest the Provincial Government have acted in excess of the authority conferred upon them Under Sec. 6 (1) of the Ordinance. In my opinion, the notification is ultra vires and the petitioners committed no offence by violating it.

7. It is axiomatic that an executive order made subordinately by the Government by virtue of the authority of a statute is subject to the judicial test whether the order fal