ORDER
Sinha, C.J.
1. This order will also govern the decision of Miscellaneous Criminal Case No. 45. of 1951.
2. The applicant in this application, Hiralal, is being prosecuted along with Harishankar and his wife Shrimati Gomti Devi, who are applicants in Miscellaneous Criminal Case No. 45 of. 1951, in the Court of the Judge-Magistrate, Hoshangabad, under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, for contravention of Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948. They made applications to this Court under Article 228 of the Constitution and raised in each of them the following grounds:
1. Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, is 'ultra vires' of the Government of India Act, 1935, and the Constitution of India, as it delegates legislative powers; and
2. The Essential Supplies (Temporary Powers) Act, 1946, has not been validly extended.
In their supplementary applications, they raised the following contentions:
1. The power to make orders given to the Central Government by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, could not be delegated by the Central Government to any officer or authority subordinate to it; and
2. Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, is 'ultra vires' of the Government of India Act, 1935, and the Constitution of India, inasmuch as it legislates on subjects in the State List.
3. Both the applications came up before Hemeon J. who held that substantial questions of law with regard to the interpretation of the Constitution of India as well as the Government of India Act, 1935, are involved in these applications and therefore he referred them under Rule 9(2)(a) of Chapter 1 of the High Court Rules to the Chief Justice, with a recommendation that they be placed before a Bench of two Judges for decision. The applications were accordingly placed before a Bench consisting of Mangalmurti J. and one of us (Mudholkar J.). After hearing the applications on the 3rd September 1951, the Bench withdrew the cases from the Court of the Judge-Magistrate under Article 228 of the Constitution and directed that they be heard on merits. In due course the cases came up for hearing before us.
4. Having heard the learned Counsel, we were of opinion that it was desirable to hear the Attorney-General of India as the 'vires' of a Central Act was challenged before us. Accordingly, we caused a notice to issue to the Attorney-General of India. Shri T.P. Naik, Additional Government Pleader, informs us that the Attorney-General Is not in a position to appear and that he has instructed him to cite three decisions before us. We took it therefore that the Attorney-General did not want to be heard in these cases and so we contented ourselves with hearing Shri G.S. Pathak, Advocate of the Allahabad High Court, for the applicants and Snri T.P. Naik, Additional Government Pleader.
5. At the outset, Shri Naik raised a preliminary objection to the effect that the present applications were barred because applications similar to these wore made by the applicants in the past but were dismissed by this Court. To this objection Snri Pathak replied that those applications were made prior to the Constitution and that the points raised in them were different from those raised before us now. We accept the argument o Shri Pathak and overrule the preliminary objection.
6. It is desirable to mention briefly what the prosecutions are about. The applicants were travelling by train from Bombay in the Lucknow bogie. The Government Railway Police, Bhusawal, suspected that they were illegally transporting cotton cloth from Bombay State to another State and they intimated the Government Railway Police, Itarsi. The applicants were occupying a second class compartment, which was searched by a Sub-Inspector, Government Railway Police, at Itarsi, and he found that they had with them new cotton cloth weighing 6 maunds 2 seers. They had no permit with them to transport the cloth from Bombay to a place outside the Bombay State, Thereupon they were arrested and eventually put up for trial as stated above.
7. In the Court below they raised contentions similar to those raised before us and urged that the Court had no jurisdiction to proceed with the trial. They also simultaneously presented applications to this Court which we are now dealing with.
8. In view of the fact that the applicants had applied to this Court, the Court below did not pass any orders on their applications but merely adjourned the cases. Eventually, proceedings in that Court were stayed by this Court. What we are now to decide is whether the proceedings are good or should be quashed.
9. Shri Pathak re-formulated the points which had already been raised in the applications and we may now set out those points thus:
(i) Whether Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and the Control Order in question are 'ultra vires' the Constitution and the Government of India Act;
(ii) Whether the Essential Supplies (Temporary Powers) Act, 1946, expired on the 31st March 1948 and could not be kept alive by the resolution of the Constituent Assembly passed on the 25th February 1948 and 23rd February 1949;
(iii) Whether the conferral of powers on the Central Government to confer authority on specified persons to make an order under Section 3 is constitutional; and
(iv) Whether without the amendment of Section 1(3) of the Essential Supplies (Temporary Powers) Act, by a legislative enactment, the time mentioned therein could be extended.
10. Shri Pathak stated before us that he did not give up point No. (ii) but that he did not wish to argue it before us, in view of the decision of the Supreme Court in - Joylal Agarwala v. The State : [1952]1SCR127 . He also stated that he did not wish to argue point No. (iv) because we may not be persuaded to dissent from the view taken in - the State v. Hiralal Manilal : AIR1951Bom309 . At the same time he made it clear that he did not give up these points and reserved them to be urged elsewhere, ii and when occasion arose. Accordingly he confined his arguments to the first and third points.
11. Briefly stated, his argument on these points is this. Essential Legislative functions cannot be delegated. These functions consist in laying down the policy and principles and setting out standards and limits within which the delegate must act. An unlimited or arbitrary power without the definement of policy and standard cannot be legally conferred by the legislature on a delegate. Subjective discretion, is not examinable by the Court and therefore conferral of such discretion on any authority or an officer is tantamount to conferral of arbitrary power on such authority or officer. Selection of a delegate or an instrumentality which will carry out the ministerial function is an essential legislative function. Therefore, the power to select a delegate or an instrumentality cannot be delegated. Similarly, a power to repeal is an essential legislative function. Conferral of a power which is so wide in its ambit and scope as to contain a power to repeal is virtually delegation of essential legislative function. Under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Legislature has made the Central Government the judge of the expediency or necessity of making an order. No defined policy and no definite standard or limits have been laid down therein and power of widest amplitude without prescribing limits has been conferred on the Central Government. The instances mentioned in Sub-section (2) of Section 3 are merely illustrations of the matters with regard to which an order can be made and are thus not exhaustive of the power actually conferred on the Central Government by Section 3. Conferment of such unguided power on the Central Government thus amounts to delegation of essential legislative function. Section 4 leaves the choice of the instrumentality or delegate to the Central Government. No standard has been laid down as to how this choice is to be made. Conferral of such power therefore amounts to delegation of essential legislative function. Similarly, Section 6 permits making of orders inconsistent with other enactments. No executive authority can act inconsistently with any law and therefore conferral of a power on an executive authority to make an order which may run counter to any existing law is conferment of an essential legislative power. This, in brief, was the argument advanced before us by the learned Counsel.
12. The learned Counsel then referred us to Section 27 of the Indian Railways Act, 1890, and said that under this Section a duty was cast on the railway authority to afford all reasonable facilities for the receiving, forwarding and delivering of traffic upon and from the several railways belonging to or worked by it. There thus arose a corresponding right in every citizen to transport by railway any goods which he wanted to transport. This right was subject only to such restrictions as are set out in the Railways Act itself and to no other. Further, Section 28 of the Act prohibits the railway administration from giving any undue or unreasonable preference to any person or to a particular kind at traffic, or subject any particular person or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Section 41 of the Act gives a remedy to a person to obtain redress for the contravention by the railway administration of Section 28 of the Railways Act. Therefore, it was argued, if any law or order imposed any additional condition or restriction on a citizen in the matter of transport of goods of a particular kind by the railway administration such law was inconsistent with the Railways Act & was thus tantamount to a partial repeal of that Act. The potion Textiles (Control of Movement) Order, 1948, places restrictions on the right of a citizen to obtain transport facilities from the railway administration and is thus said to be a law inconsistent with the provisions of Sections 27, 28 and 41 of the Railways Act. This law was made by the Central Government and not by the Parliament. Since it had the effect of repealing the aforementioned provisions of the Railways Act, at least partially, the Parliament alone could have enacted it in the exercise of its legislative functions and, it was not open to it to confer on an executive authority, such as the Central Government, a power to make that law.
13. It is pointed out that Clause 3 of the impugned Order requires a person wishing to transport by rail any cloth, yarn or apparel to secure either a general permit notified in the Gazette of India by the Textile Commissioner, or a special transport permit issued by the Textile Commissioner. This requirement runs counter to Sections 27 and 28 of the Railways Act. The clause enacts a prohibition against a citizen to transport by railway etc. of any cloth, yarn or apparel and then makes an exception; that exception is in favour of a person who obtains a general or special permit from the Textile Commissioner. It is argued that the clause, in effect, takes away the general right conferred by Sections 27 and 28 of the Railways Act and replaces it by a considerably attenuated right. By so doing, it is said to repeal by implication the provisions of Sections 27, 28 and 41 of the Railways Act.
14. Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, clearly permits the Central Government to make an order which will have the effect of repealing a pre-axisting law. It says that any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. It thus confers a power of the widest amplitude to make an order which may be inconsistent with the pre-existing law and is, as we have said already, nothing short of a power to repeal. No doubt, in Laxmibai v. State of Madhya Pradesh ILR (1951) Nag 563 a Full Bench of this High Court has held, by majority that the delegation of power to the Provincial Government to determine by notification the operation of a statute is not invalid. This decision must now be deemed to have been overruled by the decision of the majority in - In re The Delhi Laws Act, 1912, etc. : [1951]2SCR747 .
15. This is clear from a perusal of the judgments of Kania C.J., Mahajan, Mukherjea and Bose JJ. Kania C.J., Mahajan and Mukherjea JJ. have expressed their opinion that an essential legislative power cannot be delegated. They have also reaffirmed the view taken by each of them in - Jatindra Nath v. Province of Bihar and stated that it is for the Legislature to lay down the policy underlying a rule of conduct and to say how long it shall be in force. As held by them it is not open to the Legislature to delegate either of these things to an executive authority.
16. Mahajan J. has observed at page 921 in - The Delhi Laws Act, 1912 etc. case : [1951]2SCR747 (cit. sup.):
On one point, however, there is uniformity of judicial decisions in the American Courts and even amongst the text-book writers. Delegation of general power to make and repeal laws has uniformly been held as unconstitutional: (vide observations of Dixon J. in - Victoria etc. Co. and Meakes v. Digrian (1931) 46 CLR 73. It was there pointed out that no instance could be cited of a decision of the Supreme Court of America in which Congress had allowed or empowered the executive to make regulations or ordinances which may overreach existing statutes.
17. Mukherjea J. observed at p. 1004 of the Report:
Of course the delegate cannot be allowed to change the policy declared by the legislature and it cannot be given the power to repeal or abrogate any statute.
His Lordship again observed at page 1009:
To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such Acts must be the policy of the Legislature itself.
18. Though the late Chief Justice has not specifically used similar language, a reading of his judgment and his ultimate conclusions leave no doubt that his view was also the same as that expressed by Mahajan and Mukherjea JJ.
19. Bose J. has observed at p. 1121:
But I also consider that delegation of this kind cannot proceed beyond that and that it cannot extend to the repealing or altering in essential particulars of laws which are already in force in the area in question. That is a matter which Parliament alone can handle.
20. The other three learned Judges have held that the power to apply laws after modifying them can validly be delegated by the Parliament to any authority. It would therefore follow from their view that the power to do something which may have the effect of repealing by implication an existing law can be delegated. The view of the majority of the Judges does not countenance such delegation. We are bound by the view expressed by the majority and we therefore hold that Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, is 'ultra vires' the Central Legislature.
21. Shri Naik, however, refers us to the following observations of Patanjali Sastri C.J. in - Kathi Raning Rawat v. The State of Saurashtra : 1952CriLJ805 , and says that the aforementioned case lays down no principle and the opinions expressed by the different Judges cannot afford any guidance to the Courts as to what the law is:
On the second point, the appellant's learned Counsel claimed that the majority view in - In re The Delhi Laws Act, 1912 etc. : [1951]2SCR747 supported his contention. He attempted to make this out by piecing together certain dicta found in the several judgments delivered in that case. While undoubtedly certain definite conclusions were reached by the majority of the Judges who took part in the decision in regard to the constitutionality of certain specified enactments, the reasoning in each case was different and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of other cases.
The point which arose for decision in that case was somewhat different. We are at present considering the validity of delegation of the power to repeal an Act. On that point the late Chief Justice and the other Judges of the Supreme Court have expressed their opinion quite clearly and, therefore, in our opinion, the observations of his Lordship Patanjali Sastri C.J. cannot be regarded as having reference to this point.
22. Shri Naik, however, contends that there are three reasons why we cannot base our conclusion on the judgments of the late Chief Justice and three of his colleagues in - the Delhi Laws Act 1912 etc. case : [1951]2SCR747 . The first reason is that under Section 2(2) of the India (Central Government and Legislature) Act, 1946, the Central Legislature had power to delegate even essential legislative functions and further that Section 6 of the Indian Independence Act made our Parliament Supreme and therefore its powers till the inauguration of the Constitution of India on the 2fith January 1950, were unlimited. The second reason stated by Shri Naik is that the relevant provisions of the Essential Supplies (Temporary Powers) Act are substantially a reproduction of Rule 81 of the Defence of India Rules. That rule was upheld by the Federal Court and the Privy Council and their decisions are binding on us. The third reason is that in three cases in which the persons convicted of offences under Section 7 of the Essential Supplies (Temporary Powers) Act went up before the Supreme Court the conviction of these persons was upheld and therefore indirectly the Essential Supplies Act Itself was upheld. We need not say anything regarding the argument based on Section 6 of the Indian Independence Act because that Act was passed after the Essential Supplies (Temporary Powers) Act was enacted.
23. As regards the first contention, it would be useful to reproduce the relevant provisions of the India (Central Government and Legislature) Act, 1946:
2(2) Any power of the Indian Legislature to make laws under this Section with respect to any matter shall include power to make laws as respects a Province conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Governor-General in Council or officers and authorities of the Governor-General in Council as respects that matter, notwithstanding that it is one in respect of which the Provincial Legislature also has power to make laws.
A comparison of this provision with that of Section 126A(b) of the Government of India Act, 1935, would show that the two provisions are identical in language as well as content. The British Parliament has dealt with the question of legislative powers in Part V. and if it was intended that in an emergency a different kind of legislative power should be available to the Central Legislature, a suitable provision would have been made in this regard in Chapter V and not in Chapter VI, that is to say, Section 126A would have been enacted in Chapter V, and not in Chapter VI. Therefore, the nature and extent of the power conferred on the Indian Legislature by Sub-section (2) of Section 2 of the India (Central Government and Legislature) Act, 1946, would appear to be coextensive with that conferred by Section 126A(b) of the Government of India Act, 1935. It has never been. held by the Federal or the Supreme Court in the cases which were before them that the power conferred by Section 126A(b) enabled the Central Legislature to delegate essential legislative functions to any authority or officer. Apart from that, the context in which the words 'powers and duties' are used would indicate that what was meant was executive powers and duties and not any other kind of powers or duties. Indeed, if the word 'power' were taken in a literal sense, it would also include judicial power and it cannot be contended that under this provision the Legislature is empowered to delegate even judicial power to any authority (except a Court of Law) or officer.
24. Moreover, while considering the 'vires' of the Essential Supplies (Temporary Powers) Act or any of its provisions we must bear in mind the circumstances under which the Act came to be enacted. It is well known that on the declaration of the second World War the Defence of India Act was passed and Rules were made thereunder. The whole machinery of controls is contained in Rule 81. Under the Defence of India Act and the Rules made thereunder, the Central Government was given power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act. This power could be exercised only because a Proclamation of Emergency had been made by the Governor-General. This Proclamation was revoked by the Government as from the 1st April 1943. As a result of this revocation and by the operation of Sub-section (4) of Section 102 of the Government of India Act, the Defence of India Act and the Rules made thereunder were to cease to have effect on the expiration of six months after the Proclamation ceased to operate. Thus, on the expiration of six months, the whole machinery of controls would have come to an end. It was, however, felt necessary that power should be retained in the Central Government, to enact laws, including those relating to controls on matters included in the Provincial List or not included in any List at all, and so the Parliament stepped in and passed the India (Central Government and Legislature) Act, 1945. Clearly, therefore, the Parliament could not have intended to confer any wider powers on the Central Legislature than those it then possessed under Section 102 of the Government of India Act.
All that it did was to dispense with the Proclamation of Emergency and to remove restrictions in respect to the duration of the law made by it.
25. It is argued that by enacting the India (Central Government and Legislature) Act of 1946, the Parliament conferred its own unlimited power of legislation on the Central Legislature. This Act is an amending Act as it amends the Constitution Act of 1935. As observed in Cooley's Constitutional Limitations, Volume I, page 129.
Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the constitution; and it is to be construed accordingly.
Therefore, we have to read the provisions of this Act as forming part of the Constitution Act, and it would necessarily follow that the power conferred by the provisions of the amending Act cannot be regarded to be of a different nature.
26. It has been pointed out by the late Chief Justice of India and the other learned Judges in the - Delhi Laws Act (1912) etc. : [1951]2SCR747 case that throughout the constitutional history of India the content of the Legislative power has remained unchanged. Some of the learned Judges have also pointed out that even under the Constitution of India the content of the Legislative powers is the same as that under the Government of India Acts of the past. The opinions of the late Chief Justice of India and the other learned Judges are to be found at pages 795-797, 835, 885, 942-945, 971, 1099-1100 and 1116. They made these observations in connection with the argument advanced before them that Article 357(1) of the Constitution was the one and the only Article which enabled the Parliament to delegate essential legislative power to the President and to authorise the President to delegate that power to any other authority and that therefore it must be held that the legislative power enjoyed by the Parliament under Articles 245 and 246 of the Constitution cannot be deemed to include a power to delegate essential legislative function. The late Chief Justice and Mahajan, Mukherjea and Bose JJ. accepted this argument. The provisions of Articles 245 and 246 of the Constitution correspond to Sections 99 and 100 of the Government of India Act of 1935. If, indeed, Sections 99 and 100. on which Articles 245 and 246 were modelled permitted delegation of legislative functions, where was the need to enact Article 357(1) of the Constitution? All these considerations lead to the conclusion that Sections 99 and 100 of the Government of India Act did not confer power to delegate essential legislative functions, and that an enactment of such a law (The India (Central Government and Legislature) Act, 1946) made no difference as to the nature and quality of the powers conferred by those sections.
27. As regards the other contention, Shri Naik referred us to the following decisions and urged that we should accept as correct the view taken in them that the provisions of the Essential Supplies (Temporary Powers) Act are valid: (1) Emperor v. Meer Singh ILR (1941) All 617; (2) - Haveliram Shetty v. Maharaja Saheb of Morvi ILR (1944) Bom 487; (3) - Harkishan Das v. The Crown ILR (1944) Lah 245; (4) State v. Basdeo : AIR1951All44 ; (5) Monomohan v. Gobinda Das 55 C WN 6; (6) Bhagwandas v. Emperor AIR 1946 Nag 263; (7) Keshav Talpade v. Emperor ; (8) Emperor v. Sibnath Banerjee ; and (9) Srinivas Mall v. Emperor AIR 1947 PC 135.
In all these cases, except the two Federal Court cases, the point raised was that the delegation of power made under Section 2(2) of the Defence of India Act was invalid because it amounted to delegation of an essential legislative function. This contention was negatived in these cases. Whatever be the legal position in regard to delegation of power generally we must bear in mind that the majority of the Judges of the Supreme Court have held in - The Delhi Laws Act case : [1951]2SCR747 that delegation of the power to repeal is unconstitutional. In so far as these decisions go against this view they must be deemed to have been overruled. As regards the two Federal Court cases, we may point out that the question of delegation of the power to repeal or of any other legislative function was not at all raised in them and therefore those cases are not apposite. As regards the decision of the Privy Council in - Srinivas Mall v. Emperor, the learned Counsel says that since Rule 81 of the Defence of India Rules was upheld, even though it was found to be a piece of delegated legislation, it is not open to us now to say that any of the provisions of Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, are bad because they delegate an essential legislative function. To support his argument he refers to the Privy Council decision in - Vasudeva Mudaliar v. Srinivasa Pillai 30 Mad 426 (PC) where their Lordships observed:.that the Legislature, when it repeals in substance in a later Act an earlier enactment, that has obtained a settled meaning by judicial construction, intends the words to mean what they meant before.
We may point out that the observations of their Lordships in 'Srinivas's' case do not amount to a pronouncement on the nature of the power conferred by Rule 81 of the Defence of India Rules. Indeed, the question that the rule was a piece of delegated legislation was never argued before their Lordships. What they were considering was whether in a case of the type before them it was necessary for the prosecution to establish 'mens rea'. While holding that it was necessary to establish 'mens rea', their Lordships observed thus:
They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. See the judgment of Wright J. in - Sherras v. De Rutzen (1895) 1 Q.B. 918 Offences which arc within that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation if n person who was morally innocent of blame could be held vicariously liable for a servant's crime and so punishable 'with imprisonment for a term which may extend to three years'.
It would be clear from this that their Lordships used the word 'delegated' just to describe the legislation and did not intend to hold that the Legislature had conferred essential legislative functions on any person or authority. Apart from that the question whether the power to repeal could be delegated did not even indirectly arise before their Lordships.
28. Shri Naik then referred us to a Pull Bench decision in - Ramananda v. The State : AIR1951Cal120 in which validity of Sections 3 and 6 of the Essential Supplies (Temporary Powers) Act, 1946, was challenged on he same grounds as those on which it has been challenged before us. The learned Judges unanimously negatived the contention. Shri Naik says, on the authority of the decision in - Sarupchand Hukumchand v. Commr. of Income-tax, Bombay ILR (1945) Bom 528 at p. 542 that the construction placed on an Act by one High Court should ordinarily be accepted by other High Courts and for this reason we should accept the view taken by that Court. While we agree with respect to the observations of Kania, Acting Chief Justice, in the Bombay case that ordinarily construction placed on the provisions of the Indian Statutes by one High Court should not be departed from by other High Courts, in the present case we find, there is good enough reason for departing from that view, so far as Section 6 is concerned, and that reason is the decision of the Supreme Court itself to which we have already referred.
29. Shri Naik refers us to the - State v. Hiralal Manilal : AIR1951Bom369 ; Ram Chandra v. Hiramba Kumar 55 Cal WN 686; Jagarnath Prasad v. State of Bihar : AIR1952Pat185 and Srilal v. State : AIR1952Pat298 . Though the validity of certain provisions of the Essential Supplies (Temporary Powers) Act, 1946, was considered in those cases, they are distinguishable because the points which were argued before us do not appear to have been raised in those cases. Finally, we were referred to the decision in Mohd. Anzar Husnain v. The State of Bihar : AIR1952Pat220 . In that case the validity of Sections 3, 4 and 6 was challenged before the Patna High Court. The learned Judges upheld all the three sections and said that these provisions are not void on account of an improper delegation of legislative powers to agencies other than the legislative authority itself. The learned Judges also observed that in so far as an order under Section 3 may be inconsistent with any other existing legislation the effect of the order would not be to repeal that legislation but only to save the order itself which will continue to be operative. If by this the learned Judges mean that the power to repeal statute can be delegated by the Legislature their view is not in consonance with the decision in - the Delhi Laws Act case 1951 SCR 747 : AIR 1951 SC 332 pr. 14 which, though decided before this case does not appear to have been noticed by the learned Judges. As regards the other observations, we would say with respect that material inconsistency, as we have here, would necessarily have the effect on an earlier law of repeal by implication.
(29-A) There is one more decision to which our attention was called but not by Shri Naik but by Shri Pathak. That is a hitherto un-reported derision of the Allahabad High Court in - Bhushan Lal v. State. Cri. Revn. No. 711 of 1950 Dt. 14.5.52 (All). The learned Judges have upheld the validity of Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act but have declared section 6 to be 'ultra vires'. They have further held that the invalidity of Section 6 does not affect the validity of Sections 3 and 4.
30. What remain to be considered now are the decisions of the Supreme Court in three-cases under the Essential Supplies (Temporary Powers) Act, 1946. Those decisions are - Santosh Kumar v. The State 1951 SCR 303; - Joylal Agarwala v. The State 1952 SCR 127 and - Adamji Umar v. State of Bombay : 1953CriLJ542 .
31. In the first mentioned case, the question raised before their Lordships was one regarding the interpretation of the provisions of the Act and not regarding the constitutionality of any Act. In the second mentioned case, the question related only to Section 1(3) of the Essential Supplies (Temporary Powers) Act, 1946. We are not concerned with that section here. The third and the last mentioned case was. admitted only on the point of sentence and the question of 'constitutionality' was not raised at all.
32. Shri Naik, however, urges that the principle that a case is an authority for what it decides and not what follows from it, does not apply where a law is laid down by the Supreme Court. He further points out that under Article 141 read with Article 144, the law declared by the Supreme Court is binding on us. Therefore he argues that the convictions passed in the three cases having been upheld in the Supreme Court, we must infer that the law has been upheld by their Lordships and it is not open to us to question the law. In support of his proposition he refers to the following cases: Karam Hussain v. Mohammad Khalil ILR (1946) All. 605; - Harkishan v. The Crown ILR (1944) Lah 245 and - Manilal v. Venkatachalapathi AIR 1943 Mad 471. None of these cases go to the length to which the learned Counsel asks us to. There is no doubt that the law as laid down by the Supreme Court is binding on us, but the question is whether in any of these cases the Supreme Court has laid down the law. We have carefully perused these decisions and we are satisfied that in none of them their Lordships purport to lay down the law. We are, therefore, of the view that these decisions of the Supreme Court do not, stand in our way.
33. We are thus of the view that Section 6 of the Essential Supplies (Temporary Powers) Act, 1946, is 'ultra vires' the Government of India Act, 1935. It would follow, therefore, that any law made in the exercise of the power conferred by that section which had the effect of repealing an existing law is bad. The question then is whether the impugned Control Order which is made in the exercise of the powers conferred by Section 3 of the Essential Supplies (Temporary Powers) Act, read with Sections 4 and 6 thereof is a bad law.
34. There is no doubt that where a law takes away the rights conferred by a pre-existing law or substantially interferes with the rights conferred by such law with the result that the two laws cannot completely stand together, the earlier law must be deemed to have been repealed by implication to the extent of the inconsistency: See Craies on Statute Law, 5th Edition, page 345; - Ex Parte. John Caruthers (1807) 9 East 44 : 103 ER 490: Vauxhall Estates, Limited v. Liveroool Corporation (1932) 1 K.B. 733 and - Ellen Street Estates Lt. v. Minister of Health (1934) 1 K B 590.
35. We may refer to the observations in Allen on Law in the Making (page 393) 1946 Edn. based on the statement of law by Lord langdale in - The Dean and Chapter of Ely v. Bliss (1842) 49 ER 700:
Repeal by implication is a matter of construction, and is a very striking instance of 'control' exercised by the Courts over the operation of statute. It is a common law rule that 'leges posteriores priores contrarias abrogant'.
If two inconsistent Acts be passed at different times, the last must be obeyed, and if obedience cannot be observed without derogating from the first, it is the first which must give way. Every Act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied; it cannot otherwise be rationally construed. Every Act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.
36. The question then is whether the impugned Order in fact repeals Sections 27, 28 and 41 of the Railways Act by implication. Chapter V of the Railways Act, 1890, deals with Traffic facilities' and must be regarded as a general law on that subject. The Cotton Textiles (Control of Movement) Order, 1948, deals with transport of particular type of goods and so must be regarded as a special law. This Order places restrictions on the exercise of the general rights contained in Chapter V. It is therefore argued that to the extent that it does so it must be deemed to be repealing the relevant provisions of that Chapter partially. No doubt, 'every Act' as observed by Lord Lang-dale M.R. in - The Dean and Chapter of Ely v. Bliss (1842) 49 ER 700.
must be considered with reference to the state of law when it came into operation. Every Act is made either for the purpose of making a change in the law or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.
37. For the determination of the question whether the impugned Order or any clauses therein has the effect of repealing Sections 27, 28 and 41 of the Railways Act we must consider the relevant clauses of that Order. These clauses run as follows:
3. No person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn on apparel except under and in accordance with-
(i) a general permit notified in the Gazette of India by the Textile Commissioner; or
(ii) a special transport permit issued by the Textile Commissioner.
4. The Textile Commissioner may by order in writing direct any carrier to close the booking and transport of cloth, apparel, hosiery or yarn or any class or description thereof by rail, road, air, sea or inland navigation between such places and for such period as may be specified in the order, and such carrier shall comely with the order.
5. The Textile Commissioner may, by notification published in the Gazette of India, prohibit the transport of cloth, apparel, hosiery or yarn or any class or description thereof from any place within such area as is specified in the notification to any place outside that area by rail, road, air, sea or inland navigation except under such conditions, limitations end restrictions as may be so specified.
6. A carrier may require any person offering any package for transport to make a1 statement in writing declaring its contents, and may refuse to accept for transport any package unless such declaration of its contents is made.
Thus Clause 3 restricts the right of a person to transport cloth, yarn or apparel, Clause 4 enables the Textile Commissioner to make a direction to a carrier with regard to transport of cloth, etc. Clause 5 enables the Textile Commissioner to prohibit transport of cloth etc, from any place within such area as is specie fled to any place outside that area and Clause 6 empowers a carrier to compel a person offering a package for transport to state its contents. We have thus to consider if these provisions can stand side by side with the provisions of Sections 27, 28 and 41 of the Railways Act.
38. We have already given the substance of these provisions. It is clear that they create a right in favour of persons to obtain traffic facilities from the Railway administration and a right not to be discriminated against by the Railway administration. The corresponding obligations thus arise against the Railway administration and not against any one else. The remedy provided by Section 41 for infraction of the rights is against the Railway administration alone and not against the whole world or any authority other than the Railway administration. The impugned Order does not whittle down the rights of a citizen 'against' the Railway administration at all but merely imposes certain restrictions on the citizen himself. Even now if the 'Railway administration' did something in derogation of a citizen's right under Sections 27 and 28 the citizen would be entitled to seek redress under Section 41. There is nothing in the impugned Order which takes away the citizen's right to obtain relief under Section 41 where his complaint is that the Railway administration has deprived him of his rights under Sections 27 and 28. Indeed, the only remedy which the Railway Act provides to a citizen whose rights under Sections 27 and 28 of the Railways Act are infringed is that contained in Section 41. He had no remedy under the general law because the statute which gave him the right did not confer such a remedy. Neither the right against the Railway administration nor the remedy against it having been abrogated or even impaired by the new law it cannot be said that the two laws cannot stand together. In other words, these provisions of the Railways Act do not preclude the Central Government from imposing any restrictions or from interfering with traffic facilities or from practising discrimination.
39. It is argued that the indirect effect of the prohibition enacted and restrictions placed in Clause 3 is to interfere with the exercise by a person of his rights against the Railway administration and that clause is, therefore, in conflict with Sections 27, 28 and 41 of the Railways Act. Before a Court will imply a repeal it must be satisfied that (i) the new law is intended as a substitute for an older one and (ii) that the inconsistency between the two laws is wholly irreconcilable; in other words, that the two laws cannot stand together. For, a Court always leans against implying a repeal and will not imply one unless the intent of the Legislature to effect a repeal is clear. Where as here the new law is not a substitute for the old one and its provisions are not entirely irreconcilable with those of the old law it would not be correct to imply a repeal merely because certain rights conferred by the old law were subjected to certain restrictions. Again, where the new law is admittedly a temporary measure enacted to meet a national emergency the presumption against a repeal by implication will be further strengthened. Further, where the restrictions imposed by the new law cannot exist by themselves and must necessarily fasten, on the old law, no question of repeal at all arises. These restrictions will therefore be deemed to be supplemental to the old law and not in supplantation of that law or of any provisions therein. We are, therefore, of the view that Clause 3 of the impugned Order does not repeal any provisions of the Railways Act by implication.
40. The question then is whether this provision infringes the rights of a citizen specified in Sub-clauses (f) and (g) of Article 19(1) of the Constitution. These sub-clauses recognize the right of a citizen to dispose of property and to carry on a trade or business. The requirement of a permit to transport by rail cotton textiles would, undoubtedly, operate as a restriction on the rights of a person who is engaged in the business of purchase and sale of cotton textiles. Such restrictions can, however, be placed under Clause (5) of Article 19 if it is found necessary so to do in the public interest. As we have pointed out already, the situation created by the termination of hostilities made it necessary to impose certain restrictions for a limited period, that is to say, to impose control over the production, supply and distribution of commodities essential for the life of the community. It was for this reason that the legislature passed the Essential Supplies (Temporary Powers) Act, 1946, and that Act empowered the Central Government to make orders, from time to time, controlling the production, supply and distribution of certain commodities. The impugned Order is one of such orders. Clause 3 thereof does not deprive a citizen of the right to dispose of or transport cotton textiles purchased or produced by him but only requires him to obtain a permit, general or special, from the Textile Commissioner to enable him to transport them. The requirement of a permit in this regard cannot be regarded as an unreasonable restriction on a citizen's rights under Sub-clauses (f) and (g) of Article 19(1).
41. While dealing with this clause it would be desirable to deal with on argument advanced in connection with the 'vires' of Section 3 of the Essential Supplies (Temporary Powers) Act as that argument would also be relevant here. The argument is that where a law confers unguided power on an authority, does not lay down a policy and does not provide for any standard as to how that power is to be exercised, the conferral of such power is unconstitutional. A similar argument was advanced before a Full Bench of this Court in - Sheoshankar v. State Govt. of M.P. ILR (1951) Nag 646 to which one of us was a party, on the strength of the decision in - Yick Wo v. Hopkins (1886) 118 US 356. The question there was whether Section 68(2)(i) of the Prohibition Act was invalid because it conferred wide powers on Government to make rules. The Section runs thus:
(2) In particular and without prejudice to the generality of the foregoing provision, the Provincial Government may make rules-
(i) prescribing the authority by which, the form in which, and the terms and conditions subject to which, any licence or permit shall be granted.
The majority of the Judges held that this provision does not confer 'naked arbitrary power' at all. Though they held that rule 7 made in pursuance of that power was rendered void as it was discriminatory, they stated that a law, though potential in creating inequality of rights, was not itself a discriminatory law and so what was invalidated was not the law but its discriminatory administration. Under Section 68(2) of the Prohibition Act no standards were provided for guiding the Government in the matter of making rules and yet the power to make them was upheld. By parity of reasoning the power entrusted to the Textile Commissioner in the matter of granting permits must also be held to be constitutional. It would appear from the decision; of the Supreme Court in - State of West Bengal v. Anwar Ali Sarkar : 1952CriLJ510 and - Kathi Raning Rawat v. The State of Saurashtra : 1952CriLJ805 , that where the law-making body has indicated the policy and has conferred a discretion on official agencies to effectuate that policy, it has done all that it can and the conferral of such discretion does not amount to-conferral of unguided powers.
42. The impugned Order has to be read in the context of the Act whereunder it was made. Reading it thus the intention becomes apparent that the policy indicated is to regulate the transport of cotton textiles in a manner that would ensure an even distribution of that commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferral of such a discretion is not conferral of unguided power and, if there is an abuse of the power, it is not the law which confers the power which is struck, but the abuse of that law and nothing else.
43. What we have said about Clause 3 would also apply to Clause 4 which empowers the Textile Commissioner to direct a carrier to close the booking or transport of doth, apparel, etc. This clause is not in direct conflict with Sections 27, 28 and 41 of the Railways Act even though it disables a Railway administration from doing that which it is bound to do under the Railways Act. For, the Railways Act does not exclude the placing of a disability on a Railway administration by the Government or any other authority. This clause must therefore be regarded as supplemental to the relevant provisions of the Railways Act and not. as one superseding them. It, is thus valid.
44. Clause 5 enabling the Textile Commissioner, as it does, to place an embargo on the transport of certain textiles from one area to another places restrictions on the citizen as well as the Railway administration and like Clauses 3 and 4 it is also supplemental to the provisions of the Railways Act and not in supersession of any of them. It is also valid.
45. Clause 6 which enables the Railway administration to require a person to declare the contents of a package which he intends to transport is also supplemental to the provisions of the Railways Act and is not inconsistent with that Act. Its validity is therefore beyond question.
46. So, in our view, the impugned Order does not operate as an implied repeal of Sections 27, 28 and 41 of the Railways Act and it is therefore constitutional.
47. The argument then is that Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, itself is invalid because it confers essential legislative power on the Central Government, It is further said that Section 3 confers unguided power on the Central Government to make laws on a variety of subjects without laying down a policy or a standard and is therefore not constitutional.
48. We would proceed to consider the provisions of this Section. Sub-section (1) thereof runs thus:
3(1) The Central Government, so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
This is a general provision. Without prejudice thereto, Sub-section (2) empowers the Central Government to make orders on a variety of subjects including regulation
for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity (vide Section 3(2)(d)).
Sub-section (3) enables the Central Government to confer or impose duties upon the Central Government or officers and authorities even in respect of matters within the legislative competence of the Provincial Legislature. Sub-section (4) enables the Central Government so far as it appears it to be necessary for maintaining or increasing the production and supply of an essential commodity' to exercise control over an undertaking engaged in the production and supply of a specified commodity.
49. The Essential Supplies (Temporary Powers) Act, 1946, as the opening words of the preamble show, was enacted with the object of continuing during a limited period the powers to control the production, supply and distribution of, and trade and commerce in, certain commodities, that is to say, the Legislature had in clear terms formulated a policy of establishing control over the production, supply and distribution of certain commodities. Those commodities are also specified in the preamble. By Sub-section (1) of Section 3. the Legislature has empowered the Central Government to regulate or prohibit production, supply and distribution of essential commodities as denned in Section 2 of the Act and has also conferred a discretion on the Central Government by enacting that it has to exercise those powers in
so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices.
The Legislature itself could have made detailed provisions in this regard but it thought it fit to confer a power on the Central Govt. to under; take the task quite obviously because it was too vast a subject and too complicated for being dealt with by the Legislature. Indeed, had the Legislature thought of itself enacting rules and regulations which have been made under the Essential Supplies (Temporary Powers) Act by the Central Government, it would have taken several years for the law to be enacted and the object which the Legislature had in view, that is, the object of checking the rise in prices and securing the equitable distribution of essential commodities, would have been defeated. When the proper Legislature enacts a law and exercises its jurisdiction as to place, persons, laws and powers, but leaves it to the discretion of an outside agency, in whom it places confidence, to fill in details and to apply the law, the Legislature is regarded as having fulfilled its legislative function as to all matters dealt with in the law. Such legislation has been upheld by the Privy Council in - Empress v. Burah 4 Cal 172 (PC) and a long line of other cases which Went up before it thereafter.
50. The decisions of the Privy Council and also some decisions of the Federal Court were considered by their Lordships of the Supreme Court in - the Delhi Laws Act case : [1951]2SCR747 to which we have already referred. In that case though their Lordships differed on certain matters as would appear from what follows that they were agreed that it was open to the Legislature to leave it to an outside agency to work out every detail and to carry the law into operation and effect. In other words, their Lordships held that delegation of a power to make rules and regulations is permissible.
51. According to the majority of the Judges the limits on the powers of the Legislature were three: (i) the Legislature cannot act beyond the ambit of its powers the extent of which must be gathered from the document which brings it into being; (ii) it cannot create a new Legislature for the purpose of legislating generally, and (iii) it cannot abdicate its legislative function. According to them, abdication does not consist in merely creating a parallel or independent Legislature. Thus, where for instance a Legislature has conferred a power on some other authority to repeal an existing law it will be deemed to have abdicated its legislative function to that extent. Where there is no abdication of its legislative function, then howsoever extensive may be the delegation of power to an outside agency to Rive effect to the policy of the Legislature, the law will be deemed to be a valid law.
52. Amongst the Judges of the Supreme Court. Pntanjali Sastri J. (Now C.J.) took the view that the Indian Legislature is as competent to make a law, both qualitatively and quantitatively, as the British Parliament, provided it acts within the circumscribed limits of its legislative competence. Further according to him. delegation of legislative authority is different from the creation of a new legislative power and that therefore there was no limitation on the powers of the Legislature to delegate legislative functions to an outside agency. The view of Das J. identical with that of Patanjali Sastri J. Fazl Ali J. took more or less the same view as Patanjali Sastri, but observed that the Legislature could not cross the line beyond which delegation of powers amounts to abdication and self-effacement. It? would follow from their opinions that it was not necessary for the Legislature to lay down any standard for the guidance of an outside agency which was to give effect to the law.
53. According to Kania C.J., Mahajan and Mukherjea JJ. it was necessary for the Legislature to lay down such a standard. Kania C.J. observed that essential powers of legislation cannot be delegated. His Lordship explained what these essentials were. These are the determination of the legislative policy and its formulation as a rule of conduct.
54. Mahajan J. approved the law summarised by Crawford in his book on Construction of Statutes at pages 25, 26 in the following words:
So far, however, as the delegation of any power to an executive official or administration board is concerned, the legislature must declare the policy of the law and the legal principles which are to control in given cases and must provide a standard to guide the official or the board empowered to execute the law. This standard must not be too in-definite or general. It may be laid down in broad general terms. It is sufficient if the legislature lays down an intelligible principle k to guide the executive or administrative official.
55. Mukherjea J. has observed thus:
The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the frame work of that policy.
56. Bose J. was content to say that the Indian Parliament can legislate along the lines of - Queen v. Burah 4 Cal 172 PC (cit. sup.) but that delegation cannot proceed beyond that recognised in this decision.
57. Thus only two of the learned Judges have discussed what is meant by laying down a policy or standard. It is clear from their judgments that if the Legislature lays down an intelligible principle to guide the outside agency that will be sufficient. In the present case, the Legislature has laid down such a principle and that principle is
so far as it appears to it (Central Government) necessary or expedient for maintaining 1 or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices.
The principle is clear and ran afford sufficient guidance to the Central Government in the matter of exorcisms; its powers under Section 3. Delegation of the kind of power made under Section 3 is similar to that which was upheld by their Lordships of the Privy Council in - Russell v. The Queen (1882) 7 AC 829 - Hodge v. The Queen (1884) 9 AC 117 and Shannon v. Lower Mainland Dairy Products Board 1938 AC 708. In our view, therefore, the delegation of power made by Section 3 is not unconstitutional.
58. Then comes Section 4 of the Act which empowers the Central Government to delegate its own power to make orders under Section 3 to any officer or authority subordinate to it or to the Provincial Government or to an officer or authority subordinate to a Provincial Government as may be specified in the direction made by the Central Government, According to Shri Pathak, it was for the Legislature itself to specify with particularity, the authority or officer who could exercise power under Section 3 and that it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise that power. In support of this argument he relied on - Panama Refining Company v. Ryan (1935) 293 US 388 and - Schechter v. United States (1935) 295 US 495. In both these cases, it was held that so long as a policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Shri Pathak laid emphasis on the words 'selected instrumentalities' and said that according to these two decisions the instrumentalities are to be selected by the legislature itself and are not to be left to be selected by its delegate. In our opinion, Section 4 enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and that it is not correct to say that the 'instrumentalities' have not to be selected by the Legislature itself. Apart from that, the delegation of the kind of power permitted by Section 4 has been upheld by their Lordships of the Privy Council in - Shannon's case' 1938 AC 708 (cit. sup.) and several other decisions. The argument, therefore, is without substance.
59 According to Shri Pathak, Section 3 has to be read with Section 6 and if Section 6 is declared to be 'ultra vires', then Section 3 will also have to be held to be 'ultra vires'. In our opinion, the two sections are really independent of one another. Indeed, had Section 6 not been enacted at all the law would not have been rendered ineffective inasmuch as the Central Government could have made orders under Section 3. By enacting Section 6 all that the Legislature did was to widen the powers conferred on the Central Government under Section 3. We have already held that the power conferred by Section 6 on the Central Government could not be so conferred by the Legislature. The position therefore is the same as if Section 6 had not been enacted.
60. Where a provision of an Act is declared to be 'ultra vires' the test for determining whether I ho rest of it should be regarded as surviving or not is laid down by their Lordships of the Privy Council in - Attorney-General for Alberta v. Attorney-General for Canada 1947 AC 503 where they observed:
The real question is whether what remains is inextricably bound up with the part declared invalid that what remains cannot independently survive or as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is 'ultra vires' at all.
Following an earlier decision of the Privy Council the Federal Court has also taken the same view in - Subramanyan v. Muttuswami . Applying this test we are satisfied that the provisions of Section 6 are not so inextricably bound up with the rest of the Act so as to render Section 3 invalid.
61. It was then argued by Shri Pathak that Section 6 must be read not only along with Section 3 but as part of Section 3 and read in that light the Legislature intended to confer on the Central Government a power in which orders both consistent and inconsistent with the existing laws could be made. The conferral of such wide power was said to be unconstitutional. In support of this argument reliance was placed on - Chintaman Rao v. The State of Madhya Pradesh : [1950]1SCR759 . In this case, the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act (LXIV of 1948) was challenged as unconstitutional on the ground that Section 4(2) thereof contravened the provisions of Article 19(1)(g) of the Constitution. That Section reads thus:
No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of 'bidis' and no manufacturer shall during the said season employ any person for the manufacture of 'bidis'.
Their Lordships held the provision to be 'ultra vires' as it placed a drastic restriction on the Citizen's right under Article 19(1)(g) of the Constitution. Their Lordships' went on to observe:
The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. 'So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void'.
Emphasis is placed by the learned Counsel on the words underlined (here into ' ') by us.
62. The object of the statute was to provide measures for the supply of adequate labour for agricultural purposes in 'bidi' manufacturing area of the State and according to their Lordships this object could well have been achieved by legislation restraining the employment of agricultural labour in the manufacture of 'bidis' during the agricultural season. Their Lordships also observed:
Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business. Such legislation though it would limit the field for recruiting persons for the manufacture of 'bidis' and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufacture and might well have been within the ambit of Clause (6). The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object.
Then their Lordships observed:
Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of 'bidis' from employing any person in his business, no matter wherever that person play be residing. In other words, a manufacturer of 'bidis' residing in this area cannot import labour from neighbouring places in the district or province or from outside the province.
Thus, according to their Lordships, the prohibition which is enacted by Sub-section (2) was of so wide character that it affected every person in a 'bidi' manufacturing area, no matter whether he was an agricultural labourer or not. The provision did not make any distinction whatsoever between an agricultural labourer and others and therefore there was no scope for splitting it up or for giving it a limited operation, that is to say, either it operated as a whole or did not operate at all.
63. Such is not the position in the present case. Here, the two provisions, Sections 3 and 6, are distinct. The power conferred by Section 3 can be exercised, as we have already pointed out, even without Section 6. Such power must necessarily be deemed to be a power to make laws consistent with other existing laws. It could be regarded as a wide power only if Section 3 is read with Section 6. Since, in our view, the two provisions are distinct the argument based on the decision of their Lordships of the Supreme Court must fail.
64. Thus, in our view, the provisions of Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, are constitutional and the impugned Order is also constitutional. No doubt we have held Section 6 to be invalid but as the impugned Order is not inconsistent with the provisions of the Railways Act, as was contended for by the learned Counsel, its validity is not affected thereby. In this view the prosecutions must proceed. The records be now sent back to the Court below for being dealt with further according to law.