KESHABDEO Vs. EMPEROR

JUDGEMENT

(1.) On 8 June 1943, Keshabdeo Harlalka was convicted by Mr. J. Ahmad, Additional Chief Presidency Magistrate of Calcutta of an offence under Rule 81 (4) of the Defence of India Rules and seconded to undergo rigorous imprisonment for six months. The offence, the facts of which are not denied, consisted of selling to Messrs. A. Firpo, Ltd. of Calcutta, 200 bags of sugar at the rate of Rs. 25 per maund instead of Rs. 13-8-0 per maund. Rs. 13-8-0 per maund was the price fixed by Mr. M. K. Kirpalani, Chief Controller of Prices, Bengal, under the powers given him by Rule 81 (2) (b) of the Defence of India Rules, the date of the Price Control Order being 15 June 1942. Messrs. A. Firpo, Ltd. who were confectioners, required the sugar and were quoted the rate charged, and after getting in touch with the police agreed to pay the price demanded. The price was paid in the following way. A cheque for Rs. 7425 representing the sum payable at the controlled rate for the sugar and currency notes amounting to Rs. 6325 representing the excess over the controlled price. When the sale was completed and the money handed over, the police who were in waiting arrested Harlalka and he was charged with this offence and convicted as stated. On 21 June 1943, this Court issuetl a Rule on the Chief Presidency Magistrate to show cause why the conviction and sentence complained of should not be set aside. Before us the facts are not disputed, but a point is taken that the f conviction is invalid because the rules made under the Defence of India Act are themselves invalid. The argument which has been put forward is that the rules are made by the Central Government under powers given to them by the Legislature under the Defence of India Act and those powers have been given in such a way that the Legislature has divested itself of its legislative powers and left them to be exercised by the Central Government, and that that handing over of legislative powers is contrary to the Government of India Act, 1935.

(2.) The Central Government after the outbreak of war and the proclamation of an emergency had power to make laws which dealt with not only matters usually dealt with by the Central Legislature but by the Provincial Legislatures. It must be remembered that on the outbreak of the war a Defence of India Ordinance was passed and that later on 29 September 1939 the Defence of India Act (Act 35 of 1939) was passed in supersession of the Ordinance. Section.2, Defence of India Act provides: "(1) The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient 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 and services essential to the life of the community. (2) Without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, or may empower any authority to make orders providing for all or any of the following matters," and amongst them in particular: "(xx) The control of agriculture, trade or industry for the purpose of regulating or increasing the sup-ply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connexion with the conduct of war or for maintaining supplies and services essential to the life of the community." Section 3 provides: "Any Rule made under Section 2 and any Order made under any such rules, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act."

(3.) Under those rules the Central Government, that is to say the Governor-General in Council, made Rule 81 (2) which provides: "The Central Government or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the eommunity, may by Order provide . . . . (b) for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates." As I have said it is under Rule 81 (2) (b) that the Order in question limiting the price of sugar to Rs. 13-8-0 per maund was made. It is not contended that Mr. Kirpalani, Chief Controller of Prices, Bengal, in making that Order had not the due authority for making it as a person or official. It is not contended that the Rule under which the Order was made went beyond the powers given by the Defence of India Act. It is contended that the Legislature in enacting Sub-section (2), Defence of India Act and in giving powers to the Governor-General in Council to make rules dealing with the matters mentioned was abdicating its authority and handing over legislative functions given to it by the Government of India Act to someone else. It is now more than four years since the Act was passed and the rules in question made. Many orders have been made under the rules, but as far as I am aware this is the first occasion on which it has been contended that the Act itself is not binding or valid.