JAYANTILAL OSHAH Vs. CHIEF PRESIDENCY MAGISTRATE CALCUTTA

JUDGEMENT

(1.) This is an application under Article 228 of the Constitution praying for the transfer of a criminal proceeding pending in the Court of 8th Presidency Magistrate, Calcutta, to this Court. The facts are briefly as follows: The petitioner in this application is Jayantilal O' Shah, a resident of 13 Armenian Street in the city of Calcutta. According to the petitioner, he was carrying on business as an order-supplier by remarking gold ornaments and polishing gold and silver ornaments. In 1963 he took out a licence under the Gold Control Rules from the Superintendent, Gold Control, Calcutta who was the licencing authority under the said rules. This was an annual licence and the petitioner did not take out any licence in 1964 onwards, although according to the respondent, he still carries on business in the manufacture of ornaments of gold at premises no.13, Armenian Street. Before I proceed further, it will be necessary to state something more about the said Rules. The Defence of India Act, 1962 (hereinafter referred to as the "said Act") came to be promulgated in 1962 and the preamble of the said Act recites that the President having declared by proclamation under clause (1) of Article 352 of the Constitution that a grave emergency exists whereby the security of India was threatened by external aggression, the said Act was enacted as it was necessary to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. Chapter II of the said Act (secs. 3 to 6) deals with emergency powers. Section 3(1) gives power to the Central Government, by notification in the Official Gazette, to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. Sub-section (2) set out certain specific headings which have been held to be illustrative of the general powers granted under sub-section (1) of Section 3. The relevant heading for our purpose is clauses (33) of sub-section (2) which runs as follows :

(2.) I shall first of all deal with the grounds Mr. Dutt. The delegation of powers has not been specifically provided for in the Constitution but it is a power, the existence of which is widely accepted. The Supreme Court has in a number of decisions laid down the principles that are to be followed and these are by now so well-established that it is too late in the day to advance the argument that the Constitution or the Defence of India Act or the Gold Control Rules are unconstitutional and void because they themselves do not contain any specific provision as to delegation of powers. As was explained by Fazl Ali, J. in (1) Delhi Laws Act Case, AIR (1952) SC p. 332, delegated legislation has become a present day necessity - it is both inevitable and indispensable. The legislation has now to make so many laws that it has no time to devote to all the legislature details, and sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject. It is not always possible to being out a self-contained and complete Act straightway, since it is not possible to foresee all the contingencies and envisage all the legal requirements for which provision is to be made. The legislature must normally discharge its primary function itself and not through others. It cannot abdicate its legislative function and therefore, while entrusting power to an outside agency, it must see that such an agency acts as a subordinate agency and does not become a parallel legislature. The policy and principle must be laid down, but provided this is done and control is retained, the delegation is a valid one. These principles were reiterated in (2) Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 SCA 774. The principles, therefore, to be applied having been very clearly laid down by the Supreme Court, it merely remains for us to apply them to the facts of each case. That the Defence of India Act and the Rules contemplate delegation of power cannot be disputed. The question is whether this application of the power is well within the constitutional limits. In our opinion there is no doubt on the point that the constitutional limits have not been exceeded. Similar question arose in the case of (3) Harishankar Bagla v. State of Madhya Pradesh, (1954) SCA 824, with regard to the Cotton Textile (Control of Movement) Order, 1948 promulgated under the Essential Supplies (Temporary Powers) Act, 1946. Mahajan, C.J., said as follows:

(3.) The result is that we are not satisfied that any ground has been established to our satisfaction to bring the matter within Article 228 of the Constitution and consequently this application is dismissed and the Rule discharged. All interim orders are vacated.