EMPEROR Vs. SHANKARBHAI KASHIBHAI PATEL

JUDGEMENT

(1.) This is an application in revision made by the accused who was convicted of an offence under Section 5(a) of the Essential Services (Maintenance) Ordinance, 1941, under the penal section, which is Section 7.

(2.) The Essential Services (Maintenance) Ordinance was published on December 20, 1941, under Section 72 in the ninth schedule of the Government of India Act of 1935. The Ordinance provides in Section 3 that it shall apply to all employment under the Crown and to any employment or class of employment which the Central Government or a Provincial Government, being of opinion that such employment or class of employment is essential for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies or services necessary to the life of the community, may, by notification in the official Gazette, declare to be an employment or class of employment to which the Ordinance applies. Section 4 enables orders to be made directing employees affected by the Ordinance not to leave a particular area. Section 5(a) provides that any person engaged in any, employment or class of employment to which the Ordinance applies, who disobeys any lawful order given to him in the course of such employment, is guilty of an offence under the Ordinance. Then Section 7 provides penalties, and Sub-section (3) directs that no Court shall take cognizance of any offence under the Ordinance except upon complaint in writing made by a person authorized in that behalf by the Central or a Provincial Government.

(3.) On August 8, 1942, there was added to the Defence of India Rules, passed under Section 2 of the Defence of India Act, 1939 (the validity of which I assume for the purposes of this case) a new Rule 38B, which provides that if in the opinion of the Provincial Government any local authority has used or is likely to use its local fund, or has employed or permitted or is likely to employ or permit, any of its officers, members or servants to act, in furtherance of any activity prejudicial to the defence of British India, the public safety, the maintenance of public order, the efficient prosecution of war, or the maintenance of supplies and services essential to the life of the community, or has passed any resolution approving of or supporting any such activity, or has failed to carry out any orders or directions lawfully made or given to it, the Provincial Government may by order supersede the local authority for such period as may be specified in the order; and then it is provided in Sub-rule (2) that when an order of supersession has been) made, all the powers and duties exercisable by or on behalf of the local authority shall, until the local authority is reconstituted as therein mentioned, be exercised and performed by such person or persons as the Provincial Government may direct. Acting under that rule the Government of Bombay by an order made on August 21, 1942, superseded the Municipality of Ahmedabad. The notification of the order provides that in exercise of the powers conferred by Sub-rule (2) of Rule 38B of the Defence of India Rules, the Government of Bombay is pleased to direct that all the powers and duties which may, by or under any law for the time being in force, be exercised or performed by or on behalf of the Ahmedabad Borough Municipality shall, until the Municipality is reconstituted as therein mentioned, be exercised and performed until further orders by the Collector of Ahmedabad.