9911796707
TMI Blog1970 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... y withdrawn by the High Court to itself on the 3rd of September,'1951, as it involved a decision of constitutional issues. By its order dated the 15th September, 1952, the High Court upheld the provisions of sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, as constitutional. It also upheld the constitutionality of the impugned Order. Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act but it was held that its unconstitutionality did not affect the prosecution in this case. The High Court directed that the prosecution should proceed and the records sent back to the trial Court for being dealt with in accordance with law. Leave to appeal was given both to the appellants and the respondent and requisite certificates under articles 132 and 134 of the Constitution were granted. This appeal along with the connected appeal No. 6 of 1953 is before us on the basis of the said certificates. Mr. Umrigar, who appeared in this and the connected appeal, urged the following points for our consideration and decision: (1) That sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, and the provisions of the Cotto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding 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. Under powers conferred by section 3 the Central Government promulgated on 10th September, 1948, Cotton Textiles (Control of Movement) Order, 1948. Section'2 of this order defines the expressions apparel, carrier, hosiery, cloth and textile commissioner. Section 3 of the order runs as follows: 3. No person. shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or 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. Section 8 provides that the Textile Commissioner may, by notification in the Gazette of India, prescribe the manner in which any application for a special transport permit under this Order shall be made. The Central Government has prescribed forms for application for obtaining permits and the conditions under which permits can be obtained. The first question canvassed by Mr. Umr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit, and that on grounds similar to those on which in Dwarka Prasad v. The State of Uttar Pradesh (A.I.R. 1954 S.C. 225 ; [1954] S.C.R. 803.), this Court declared void section 4(3) of the Uttar Pradesh Coal Control Order, section 3 of the Control Order in question should also be declared void. This argument again is not tenable. In the first place, the appellants never applied for a permit and made no efforts to obtain one. If the permit had been applied for and refused arbitrarily they might then have had a right to attack the law on the ground that it vested arbitrary and unregulated power in the textile commissioner. The appellants were not hurt in any way by any act of the textile commissioner as they never applied for a permit. They were transporting essential goods by rail without a permit and the only way they can get any relief is by attacking the section which obliges them to take a permit before they can transport by rail essential commodities. It may also be pointed out that reference to the decision of this Court in Dwarka Prasad's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3. Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russell v. The Queen (7 A.C. 829.), Hodge v. The Queen (9 A.C. II7.), and Shannon v. Lower Mainland Dairy Products Board ([I938] A.C. 708.)and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernor in Council was-given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act, 1936. The attack on the Act was that without constitutional authority it delegated legislative power to the Lt.Governor in Council. This contention was answered by their Lordships in these terms: The third objection is that it is not within the powers of 'the Provincial Legislature to delegate so-called legislative powers to the Lt.-Governor in Council, or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act. The next contention that the provisions of the Textile Control Order operate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the conferment of power of the widest amplitude to make an order inconsistent with the preexisting laws is nothing short of a power to repeal. In our opinion the construction placed on section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of section 6 certainly is not to repeal any one of those laws or abrogate then;. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers)Act, 1946, or the orders made thereunder. In other words, the orders made under section 3 would be operative in regard to the, essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By-passing a certain law does not necessarily amount to repe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
