KAPILDEO PANDEY Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted of an offence under Rule 81(4), Defence of India Rules, on a charge of contravening Clause 8, Bihar Cotton Cloth and Yarn Dealers Licensing Order of 1944, which was made by the Governor of Bihar in exercise of powers conferred by Rule 81(2), Defence of India Rules. It is alleged that the petitioner sold a dhoti for Rs. 4-8-0, which it is alleged, is 24 per cent, in excess of the controlled price for that particular type of article. The prosecution have not placed on the record evidence of what the controlled price of this type of dhoti is. But we have been referred to a Notification in the Official Gazette shewing the price fixed for the kind of dhoti in question, and other articles, by the Commissioner of Textiles. The dhoti itself bore a stamp showing the price to be Rs. 7-3-0 a pair, which is the price shewn in this Notification. The power to fix the price of cloth is derived from Clause (2) of Rule 81, Defence of India Rules, which empowers either the Central Government or the Provincial Government to do certain things including the control of prices. In exercise of the powers conferred on it, the Central Government issued a Notification No. 36 Tex. (1)-43, dated 17th June, 1943. This Notification contains the Cotton Cloth and Yarn Control Order of 1943 framed by the Central Government in exercise of its powers under Rule 81 (2). The order empowers the Textile Commissioner to fix maximum: prices, both ex-factory and retail, at which all or any classes or specifications of cloth or yarn may be sold. Clause 12 prohibits any manufacturer or retail dealer from selling or offering for sale any cloth or yarn in excess of the maximum ex-factory or retail price, as the case may be, fixed under this Order in respect thereof.

(2.) Clause 23, which was added to the original Order by a Notification of 14th August 1943, provides that no prosecution for the contravention of any of the provisions of the Order shall be instituted without the previous sanction of the Provincial Government. No sanction of the Provincial Government was obtained for the prosecution of the petitioner in. respect of the offence with which he was charged, apparently because the charge was laid, not under the Cotton Cloth and Yarn Control Order of 1943, but under Clause 8, Bihar Cotton Cloth and Yarn Dealers (Licensing and Control) Order of 1944. This Order was made by the Provincial Government in exercise of its powers under Rule 81(2), Defence of India Rules. The object of the Order was to provide for the licensing of cloth dealers and prescribes the procedure to be followed in applying for and issuing such licences, and contains the terms on which licences are to be issued. There is no term in the licence requiring the licensee to sell cloth at or below a particular price. The omission of that provision as a term of the licence is probably due to the fact that the Central Government by its Order had already provided for the fixing of prices and made it an offence to sell in contravention of that Order. The Bihar Order of 1944, however, contains a clause which has nothing to do with the procedure to be followed in applying for a licence, or with the terms on which a licence is to be granted. That is Clause 8, which provides that no licensee shall sell or offer for sale any cloth or yarn at a price in excess of the maximum price fixed for it. This apparently refers to the price fixed by the Textile Commissioner in exercise of his powers under the Cotton Cloth and Yarn Control Order of 1943. Unlike this latter Order, however, the Bihar Licensing Order does not require any sanction for the prosecution of a person in respect of a contravention of its terms. The prosecution in the present case, as I have already stated, is based on a charge framed as in respect of Clause 8, Bihar Licensing Order. It has been contended that in view of the fact that the Central authority had already made a rule, by reason of which a person selling in excess of the maximum price fixed by the Textile Commissioner commits an offence for which he may be prosecuted only after the sanction mentioned in Clause 23 of the Order has been obtained, it was not open to the Provincial Government to create an offence to which the same state of facts would be applicable but which would not require sanction at all. If the selling of cloth at a price in excess of that fixed by the Textile Commissioner be an offence both under the Order of the Central Government and also under the Bihar Government's Order the anomalous position is that a person unlicensed by the Provincial Government to sell cloth is liable to prosecution under the Central Government's Order for selling above the controlled price only after the sanction required by the Order has been obtained, but if a person licensed to sell cloth by the Provincial Government's Licensing Order does so he may be prosecuted under Clause 8 of the latter Order without sanction. This, in my opinion, could not have been the intention of Clause 8, Bihar Licensing Order. In my opinion, the reason why that clause was inserted in the Bihar Licensing Order was to make it clear that the mere issue of licence is not intended to exempt the licensee from the operation of the Central Government's Cotton Cloth and Yarn Order of 1943, that is to say to make it clear that he is bound to keep his prices within the limits fixed by the Textile Commissioner in exercise of the powers conferred on him. That interpretation reconciles the two apparently conflicting Orders, and as it is the duty of the Court to endeavour to give a rational meaning to the rules made by rule-making authorities, this appears to me to be the interpretation which should be adopted in the present case. But it leaves the prosecution in the difficulty that no sanction was obtained for the prosecution of the petitioner, and that necessitates the conviction being set aside. In the result the conviction and sentence are set aside. Meredith, J.

(3.) I agree.