H.A. Hajee Ismail and ors. Vs. the State of Karnataka and ors. - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. article 57: [n. kumar, j] applicability of held, to apply article 57 of the limitation act, the suit must one for a declaration that an adoption is invalid. it is only when the prayer in the suit is for a declaration that an adoption is invalid, in such a case article 57 would apply. further, article 57 pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way inheritance. the suit for partition cannot be treated as one for setting aside the adoption merely because one of the dependant set up a claim so as to attract the article of limitation act. therefore, article 57 is not attracted and the suit is not barred by time. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 7, explanation: [n. kumar, j] capacity of a male hindu to take in adoption consent of the wife held, consent of the wife is a condition precedent for a valid adoption. if a wife is living, the adoptive father shall not adopt a child except with the consent of his wife. explanation to section 7 makes it clear that if the person has more than one wife living at the time adoption, the consent of all the wives is necessary. hindu adoptions and maintenance act,1956[c.a.no.78/1956] -- section 10 clause (iv): [n.kumar, j] persons capable of being taken in adoption applicability of custom or usage in the matter of adoption held, a person who has completed the age of 15 years is not capable of being taken in adoption. but clause (iv) of section 10 of the act provides, if there is a custom or usage applicable to the parties which permits persons who have completed the age of 15 years being taken in adoption, then adoption of a person who has completed the age of 15 years is permissible section 16: [n. kumar, j] presumption regarding registered document relating to adoption courts below, refusing to draw the presumption conditions to be fulfilled regarding factum of adoption held, firstly, the registered document evidencing adoption should be produced before the court, secondly, it should be shown that the said document is signed by the person giving the child in adoption, and thirdly, it should be shown that it is signed by the person taking the child in adoption. on facts, held, in the in stance case, the original registered adoption deed is produced. it bears the signature of the person taking the child adoption. but admittedly, it does not bear the signature of the person giving the child in adoption. once the original adoption deed produced did not bear the signature of the person giving in adoption, then the presumption under section16 of the act is not attracted. that is precisely what the courts below have held. indian evidence act,1872[c.a.no.1/1872] section 90: [n. kumar, j] thirty years old documents presumption admissibility of ancient documents without proof rule of necessity and convenience held, it is extremely difficult and sometimes impossible to prove the hand writing or signature or execution of ancient documents after the lapse of many years . the words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. it is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. further, though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. hence, no presumption under section 90 of the evidence act, could be raised to the effect that the adoption recorded in the deed is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. - 'essential commodity' was defined under section 2(a), as inclusive of various articles, like cattle fodder, coal, component parts and accessories of automobiles, cotton and woollen textiles, etc.order1. in these petitions under article 226 of the constitution, the sole question for decision is, whether the karnataka automobile tyres and tubes (control) order, 1971, is ultra vires and void as contended for the petitioners.2. the said order was made by the state government in exercise of the powers conferred by section 3 of the essential commodities act, 1955 (central act 10 of 1955) (hereinafter called 'the act'), read with s. o. no. 1844, dated the 18th of june, 1966 issued by the government of india. it was made on 13th december, 1971, and published in the karnataka gazette dated 14th of december, 1971. it extends to the whole of the state of karnataka. it provides, among others, for regulating the sale of tyres and tubes of all varieties, issuing of licence and prosecution for contravening the conditions of the licence.3. the petitioners are dealers in tyres and tubes. their common contention is that the state government have had no power validly delegated by the central government under section 5 of the act, to provide for the matters in relation to the automobile tyres and tubes.4. in order to examine the contention, it is necessary to have a close look at the relevant provisions of the act. the act was intended to provide in the interest of the general public, power to control production, supply and distribution of, and trade and commerce in certain commodities. 'essential commodity' was defined under section 2(a), as inclusive of various articles, like cattle fodder, coal, component parts and accessories of automobiles, cotton and woollen textiles, etc. by section 2(a)(xi) authority was conferred upon the central government to declare by notification, any other commodity as an essential commodity for the purposes of the act; that is, in addition to the commodities already defined under the act. by section 3(1), authority was conferred upon the central government so far as it appeared to be necessary or expedient for maintaining or increasing supplies of any essential commodity or securing their equitable distribution and availability at fair prices, to provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce. it may be relevant to state that these powers are in the nature of delegated legislative powers. section 4 provides that an order made under section 3 may confer powers and impose duties upon the central government or the state government or their officers or authorities and may contain directions as to the exercise of any such cowers or the discharge of any such duties. section 5 provides for delegation of powers, it reads:'5. delegation of powers:-- the central government may, by notified order direct that 'the power to make orders or issue notifications under section 3' shall, in relation to such matters and subject to such conditions, if any, as may be specified, in the direction, be exercised also by (a) such officer or authority subordinate to the central government, or(b) such state government or such officer or authority subordinate to a state government, as may be specified in the direction.' on 18th june, 1966, the central government acting under section 5, made an order which reads as follows:'government of india,ministry of commerce.

Judgment:
ORDER

1. In these petitions under Article 226 of the Constitution, the sole question for decision is, whether the Karnataka Automobile Tyres and Tubes (Control) Order, 1971, is ultra vires and void as contended for the petitioners.

2. The said order was made by the State Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) (hereinafter called 'the Act'), read with S. O. No. 1844, dated the 18th of June, 1966 issued by the Government of India. It was made on 13th December, 1971, and published in the Karnataka Gazette dated 14th of December, 1971. It extends to the whole of the State of Karnataka. It provides, among others, for regulating the sale of tyres and tubes of all varieties, issuing of licence and prosecution for contravening the conditions of the licence.

3. The petitioners are dealers in tyres and tubes. Their common contention is that the State Government have had no power validly delegated by the Central Government under Section 5 of the Act, to provide for the matters in relation to the automobile tyres and tubes.

4. In order to examine the contention, it is necessary to have a close look at the relevant provisions of the Act. The Act was intended to provide in the interest of the general public, power to control production, supply and distribution of, and trade and commerce in certain commodities. 'Essential commodity' was defined under Section 2(a), as inclusive of various articles, like cattle fodder, coal, component parts and accessories of automobiles, cotton and woollen textiles, etc. By Section 2(a)(xi) authority was conferred upon the Central Government to declare by notification, any other commodity as an essential commodity for the purposes of the Act; that is, in addition to the commodities already defined under the Act. By Section 3(1), authority was conferred upon the Central Government so far as it appeared to be necessary or expedient for maintaining or increasing supplies of any essential commodity or securing their equitable distribution and availability at fair prices, to provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce. It may be relevant to state that these powers are in the nature of delegated legislative powers. Section 4 provides that an order made under Section 3 may confer powers and impose duties upon the Central Government or the State Government or their officers or authorities and may contain directions as to the exercise of any such cowers or the discharge of any such duties. Section 5 provides for delegation of powers, It reads:

'5. Delegation of Powers:-- The Central Government may, by notified order direct that 'the power to make orders or issue notifications under Section 3' shall, in relation to such matters and subject to such conditions, if any, as may be specified, in the direction, be exercised also by

(a) such officer or authority subordinate to the Central Government, or

(b) such State Government or such Officer or authority subordinate to a State Government, as may be specified in the direction.'

On 18th June, 1966, the Central Government acting under Section 5, made an Order which reads as follows:

'GOVERNMENT OF INDIA,MINISTRY OF COMMERCE.