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1952 Supreme(Nagpur) 100
HIGH COURT OF NAGPUR
Sinha, Mudholkar
HIRALAL SUTWALA AND OTHERS – Appellant
Versus
STATE – Respondent
Miscellaneous Criminal Cases No. 32, 45 of 1951
Decided on : 15-09-1952
A P Sen, D S Pathak, R S Pathak, T L Sheode, T P Naik, V T Kedar, Advocates
The power to repeal a pre-existing law is an essential legislative function that cannot be delegated.
Headnote:
The Essential Supplies (Temporary Powers) Act, 1946, and the Cotton Textiles (Control of Movement) Order, 1948, were challenged on the grounds that they were ultra vires the Government of India Act, 1935, and the Constitution of India, and that the Essential Supplies (Temporary Powers) Act, 1946, had not been validly extended. The Court held that Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, was ultra vires the Government of India Act, 1935, and that the Cotton Textiles (Control of Movement) Order, 1948, was not ultra vires the Railways Act, 1890.
Fact of the Case:
The applicants were travelling by train from Bombay to Lucknow carrying new cotton cloth weighing 6 maunds 2 seers without a permit. They were arrested and put up for trial under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, for contravention of Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948.
Finding of the Court:
The Court held that Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, was ultra vires the Government of India Act, 1935, because it delegated the power to repeal a pre-existing law, which was an essential legislative function that could not be delegated. The Court also held that the Cotton Textiles (Control of Movement) Order, 1948, was not ultra vires the Railways Act, 1890, because it did not repeal any provisions of the Railways Act by implication and it did not infringe the rights of a citizen specified in Sub-clauses (f) and (g) of Article 19 (1) of the Constitution.
Issues: 1. Whether Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, was ultra vires the Government of India Act, 1935? 2. Whether the Cotton Textiles (Control of Movement) Order, 1948, was ultra vires the Railways Act, 1890?
Ratio Decidendi: 1. Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, was ultra vires the Government of India Act, 1935, because it delegated the power to repeal a pre-existing law, which was an essential legislative function that could not be delegated. 2. The Cotton Textiles (Control of Movement) Order, 1948, was not ultra vires the Railways Act, 1890, because it did not repeal any provisions of the Railways Act by implication and it did not infringe the rights of a citizen specified in Sub-clauses (f) and (g) of Article 19 (1) of the Constitution.
Final Decision: The Court held that Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, was ultra vires the Government of India Act, 1935, and that the Cotton Textiles (Control of Movement) Order, 1948, was not ultra vires the Railways Act, 1890. The Court ordered that the records be sent back to the Court below for being dealt with further according to law.
1. This order will also govern the decision of Miscellaneous Criminal Case No. 45 of 1951.
2. The applicant in this application, Hiralal, is being prosecuted along with Harishankar and his wife Shrimati Gomti Devi, who are applicants in Miscellaneous Criminal Case No. 45 of 1951, in the Court of the Judge-Magistrate, Hoshangabad, under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, for contravention of Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948. They made applications to this Court under Article 228 of the Constitution and raised in each of them the following grounds:
1. Section 3 of the Essential Supplies (Temporary Powers) Act. 1946, is 'ultra vires' of the Government of India Act, 1935, and the Constitution of India, as it delegates legislative powers; and
2. The Essential Supplies (Temporary Powers) Act, 1946, has not been validly extended.
In their supplementary applications, they raisedthe following contentions:
1. The power to make orders given to the Central Government by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 could not be delegated by the Central Government to any officer or authority subordinate to it; and
2. Section 3 of the Essential Supplies (Temporary Powers) Act, 1946. is 'ultra vires' of the Government of India Act, 1935, and the Constitution of India, inasmuch as it legislates on subjects in the State List.
3. Both the applications came up before Hemeon J. who held that substantial questions of law with regard to the interpretation of the Constitution of India as well as the Government of India Act, 1935. are involved in these applications and therefore he referred them under Rule 9 (2) (a) of Chapter 1 of the High Court Rules to the Chief Justice with a recommendation that they be placed before a Bench of two Judges for decision. The applications were accordingly placed before a Bench consisting of Mangalmurti J. and one of us (Mudholkar J.). After hearing the applications on the 3rd September 1951, the Bench withdrew the cases from the Court of the Judge-Magistrate under Article 228 of the Constitution and directed that they be heard on merits. In due course the cases came up for hearing before us.
4. Having heard the learned Counsel, we were of opinion that it was desirable to hear the Attorney-General of India as the 'vires' of a Central Act was challenged before us. Accordingly, we caused a notice to issue to the Attorney-General of India. Shri T. P. Naik, Additional Government Pleader, informs us that the Attorney-General is not, in a position to appear and that he has instructed him to cite three decisions before us. We took it therefore that the Attorney-General did not want to be heard in these cases and so we contented ourselves with hearing Shri G. S. Pathak, Advocate of the Allahabad High Court, for the applicants and Shri T. P. Naik, Additional Government Pleader.
5. At the outset, Shri Naik raised a preliminary objection to the effect that the present applications were barred because applications similar to these were made by the applicants in the past but were dismissed by this Court. To this objection Shri Pathak replied that those applications were made prior to the Constitution and that the points raised in them were different from those raised before us now. We accept the argument of Shri Pathak and overrule the preliminary objection.
6. It is desirable to mention briefly what the prosecutions are about. The applicants were travelling by train from Bombay in the Lucknow bogie. The Government Railway Police, Bhusawal, suspected thai they were illegally transporting cotton cloth from Bombay State to another State and they intimated the Government Railway Police, Itarsi, The applicants were occupying a second class compartment, which was searched by a Sub-Inspector, Government Railway Police, at Itarsi, and he found that they had with them new cotton cloth weighing 6 maunds 2 seers. They had no permit with them to transport the c
