PADAMRAJ JAIN Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Rule 81(4) of the Defence of India Rules read with Section 5 of the Essential Supplies (Temporary Powers) Ordinance, 1946. The petitioner was licensed under the Bihar Paper Dealers Licensing Order, 1945, to sell papers retail at Pakaur. The offence he has been convicted of committing is selling paper retail at Patna on 16 January 1947. The Bihar Paper Dealers Licensing Order of 1945 was published in the Bihar Gazette on 30 May 1945, and republished with an amendment on 19 July 1946. The order was issued by the Provincial Government in exercise of its powers under Rule 81(2) of the Defence of India Rules. Those rules having lapsed on 30 September 1946, the Licensing Order also lapsed on that date.

(2.) The question for consideration, however, is whether subsequent legislation has had the effect of continuing in operation the provisions of the Licensing Order despite the lapsing of the Defence of India rules prior to the date on which the petitioner is alleged to have committed the offence of which he has been convicted. On 1 October 1996, that is to say, on the day following that on which the Defence of India rules had elapsed, the Provincial Government issued the Bihar Essential Articles (Temporary Powers) Ordinance, 1946, Section 8 of this Ordinance empowered the Provincial Government to regulate or prohibit the production, supply, distribution and transport of essential articles and trade or commerce therein. The phrase "essential articles" is defined in Section 2(a) as meaning any of the articles specified in the Schedule attached to the Ordinance and any other articles which might be declared by the Provincial Government by notified order to be an essential article for the purpose of the Ordinance. "Notified order" was defined as meaning an order notified in the official Gazette. Section 5 declared that every Order made by the Provincial Government or the Central Government or any other competent authority under any of the provisions of the Defence of India rules in respect of any of the matters specified in Section 3 which, having been notified in the official Gazette, was in force immediately before the commencement of the Ordinance was to continue in force as if made by the Provincial Government under the provisions of the Ordinance in so far as this could validly have been done by the Provincial Government under the Ordinance. It also declared that any such Order should remain valid until superseded under the provisions of the ordinance, and that all licenses and permits issued under such Order should continue in force. The Schedule to the Ordinance, however, did not specify paper as an essential article. Nor was any notified Order issued with respect to paper within the meaning of Section 2(a) The Schedule, however, did include all articles the prices of which had been fixed under the Hoarding and Profiteering Prevention Ordinance of 1943. This latter Ordinance does empower the fixing the prices of stationery, which includes at least certain kinds of paper. But in fact no Order was issued under this Ordinance fixing the price of such paper. The Bihar Essential Articles (Temporary Powers) Ordinance of 1946, there, fore, did not provide for the continuance of the operation of the Bihar Paper Dealers Licensing Order, 1945. The prosecution, however, rely on an Ordinance issued by the Central Government namely, the Essential Supplies (Temporary Powers) Ordinance, 1946 (XVIII of 1946). This Ordinance defines essential commodity as including paper, and Section 3(1) empowers the Central Government, so far as it appears to be necessary or expedient for maintaining or increasing supplies of any esential commodity, to provide by a notified Order for regulating or prohibiting the production, supply, distribution thereof and trade and commerce therein. Sub-section (2) provides, that without prejudice to the generality of the powers thus conferred by Sub-section (1), an Order made there under may provide for regulating licenses or permits for the use or consumption of any essential commodity which, as I have already stated, includes paper. Section 5 provided as follows, leaving out unessential words: Until other provisions ace made under this Ordinance, any order, whether notified or not, made by whatever authority under Rule 80(b), or Sub-rule (2), or Sub-rule (3) of Rule 81 of the Defence of India rules in respect of any matter specified in Section 3, which was in force immediately before the commencement of this Ordinance, shall, notwithstanding the expiration of the said rules, continue in force so far as consistent with this Ordinance and shall be deemed to be an Order made under Section 8, and all licenses or permits issued under any such Order and in force immediately before such commencement shall likewise continue in force and be deemed to be issued in pursuance of this Order. This Ordinance, which was published in the Gazette o? India (Extraordinary) dated 25 September 1946, and which came into force on 1 October 1946, was itself repealed by Section 17(1) of the Essential Supplies (Temporary Powers) Act, 1946, (Act xxiv of 1946). Sub-section (2) of Section 17, however, provides that any Order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in. force and be deemed to be an order made under this Act and all licenses or permits issued under any inch order and in. force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act. For the removal of doubts Sub-section (3) declares that for the purposes of the said Ordinance, that is to say, Ordinance 18 of 1946 and this Act, and order of the nature referred to in Section 5 of the Ordinance made before the commencement of said Ordinance and not previously rescinded shall be deemed to be and always to have been an order in force immediately before such commencement, notwithstanding that such order or parts of it may not have been in operation either at all or in particular areas. The effect of Section 17(2) of this Act is to continue in force any order, the operation of which had been continued by Ordinance 18 of 1946. The provisions of that Ordinance, therefore, which fall to be considered are Secs.3 and 6. Section 5 continues in force any order made by whatever authority under Sub-rule (2) of Rule 81 in respect of any matter specified in Section 3 and declares that such order shall be deemed to be au order made under Section 3. The question is whether the Bihar Paper Dealers Licensing Order, 1945, is to be deemed to be an order made under Section 8. It is contended on behalf of the petitioner that be only orders intended to be kept in force by Section 5 are orders made by the Central Govern, meat, or its officers, or subordinate authorities, and that as the Provincial Government is not an officer of the Central Government, or one of its subordinate authorities, orders made by it in the exercise of the powers conferred on it by Rule 81(2) of the Defence of India Rules are not orders deemed to be made under Section 3, even though the subject-matter of the Provincial order be one of those mentioned in Section 3. The words "by whatever authority", according to this construction, do not include the Provincial Government. In my opinion, this construction cannot be supported. The words "by whatever authority" are certainly wide enough to include the Provincial Government and must be as construed unless repugnant to the context in which they appear. The words following them, namely, "under Rule 80 (b), or Sub-rule (2), or Sub-rule (3) of Rule 81 of the Defence of India Rules" do not support the contention of the petitioner. That rule and those Sub-rules confer upon the Central Government and the Provincial Government power to make rules, and upon no other authority. The words "by whatever authority" clearly, therefore, contemplated both the authorities referred to in Rule 80(b), or Sub-rule (2), or Sub-rule (3) of Rule 81 of the Defence of India Rules.

(3.) The learned advocate for the, petitioner referred to Sub-section (3) of Rule 3 of Ordinance 18 of 1946 which, he contends, indicates that it was intended to confine Section 5 to matters with which the Central Government was authorised to deal under Section 3(1). Sub-section (3) provides that any order made under Sub- section (1) may confer powers and impose duties upon the Central Government or officers and authorities of the Central Government, notwithstanding that it relates to a matter in respect of which the Provincial Legislature also has power to make laws. This Sub-section does not confer upon officers and authorities of the Central Government the powers which have been conferred upon the Central Government alone by Sub-section (1), but merely provides that certain officers and authorities may be authorised to exercise powers and that certain duties may be imposed upon them notwithstanding that the subject-matter order of the order under Sub- section (1) relates to a matter not exclusively within the legislative competence of the Central Government. This Sub-section cannot be construed as in any way explaining what is meant by the Central Government on which alone the powers conferred by Sub-section (1) of Section 3 are conferred.