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TMI Blog1978 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ron and Steel (Control) Order, 1956 (hereinafter referred to as 'the Control Order. After the Special Magistrate had framed the charges and secured in the Court of the Special Magistrate, Ambala Cantt for an offence under section 120-B of the Indian Penal Code read with section 7 of the Essential Commodities Act, 1955 (Act No. 10 of 1955) (hereinafter referred to as 'the Act') as also for an offence under section 7 of the Act read with clause 15 (3) of the Control Order. After the Special Magistrate had framed the charges and examined sixteen prosecution witnesses, the appellants made an application before him on February 12, 1970 under section 251A (11) and 288 (1) of the Code of Criminal Procedure, 1898 praying that in view of the submissions made therein, the case against them be not proceeded with and they be acquitted. The trial Magistrate dismissed the application vide his order dated June 4, 1970, relevant portion whereof is extracted below for facility of reference :- "In the light of the above observations, I am prevented from determining the case otherwise than by making an order of acquittal or conviction which I can pass only after recording further e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and who were equally guilty of the offence under section 7 of the Act having been proceeded against, in the Court of the competent jurisdiction, the prosecution of the appellants was violative of Article 14 of the Constitution and that the purchases of the aforesaid B.P. sheets having been openly made and entered in the account books of appellant No. 1, the mens rea which was a necessary ingredient of the offence under section 7 of the Act was totally lacking in the case. In the return filed by it in opposition to the writ petition, the respondent while denying that the Control Order had not been placed before both Houses of Parliament, as required by sub-section (6) of section 3 of the Act or that the issue of the Control Order or the Notification fixing maximum selling prices of various categories of iron and steel including the commodity in question was not based on the formation of the opinion envisaged by sub-section 1 of section 3 of the Act conceded that the notification fixing the maximum selling prices of the categories of iron and steel including the commodity in question had not been placed before both Houses of Parliament but contended that the provisions of sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. This is how the case is before us. At the hearing of the appeal though the learned counsel for the appellants have reiterated all the contentions raised by them in the aforesaid writ petition, the only substantial question of law with which we are concerned at the present stage is whether the aforesaid notification fixing the maximum selling price of the commodity in question is void for not having been laid before both Houses of Parliament. For a proper determination of the aforesaid question, it is necessary to notice a few provisions of the Act which are relevant for the purpose of the appeal. Section 2 is a glossary of the Act. According to clause (a)(vi) of the said section, iron and steel and manufactured products thereof fall within the ambit of the expression "essential commodity". Sub-section (1) of section 3 of the Act confers on the Central Government the general power of making and issuing orders providing for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub- section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. - For the purposes of this section, - (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved as follows :- "The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from constituting it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered." Thus two considerations for regarding a provision as directory are : (1) absence of any provision for the contingency of a particular provision not being complied with or followed and (2) serious general inconvenience and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity of bringing it up for approval - but section 16(3) of the Housing (Financial and Miscellaneous Provisions) Act, 1946 did impose a limit of forty days. An old form (not much used nowadays) provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained. This form was used in section 10(4) of the Road Traffic Act, 1930 (cf. Road Traffic Act, 1960, s.19 (3) . ..The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated. The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all, where the spending, etc. of public money is affected. Sometimes where speedy or secret action is required (e.g. the imposition of import duties), the order is laid with immediate operation but has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament. In these circumstances, we are clearly of the view that the requirement as to laying contained in sub-section (6) of section 3 of the Act falls within the first category i.e. "simple laying" and is directory not mandatory. We are fortified in this view by a catena of decisions, both English and Indian. In Bailey v. Williamson(1) whereby section 9 of the Parks Regulations Act, 1872 passed on June 27, 1872 "to protect the royal parks from injury, and to protect the public in the enjoyment of those royal parks and other royal possessions for the purpose of innocent recreation and exercise" it was provided that any rules made in pursuance of the first schedule to the Act shall be forthwith laid before both Houses of Parliament, if Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session of Parliament; and if any such rules shall be disapproved by either House of Parliament within one month of the laying, such rules, or such parts thereof as shall be disapproved shall not be enforced and Rules for Hyde Park were made and published on September 30, 1872 when Parliament was not sitting and in November 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before each of the Houses of the Provincial Legislature at the session thereof next following as provided by sub-section (5) of section 26 of the Act, this Court rejected the contention and upheld the validity of the said rules. The following observations made in that case by Shah, J. (as he then was) on behalf of the Constitution Bench are apposite:- "The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out of World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 1, 1946 and before the Legislative Council on September 13, 1946. Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance with the condition subsequent. Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non- compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule. In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rules shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otection Force Regulations, 1966 made under section 21 of the Railway Protection Force Act (23 of 1957) was invalid as it was not laid before both Houses of Parliament as required by sub-section (3) of section 21 of the Act, it was held: "What then is the consequence of failure to lay the regulation ?......A correct construction of any particular laying clause depends upon its own terms. If a laying clause defers the coming into force of the rules until they are laid, the rules do not come into force before laying and the requirement of laying is obligatory to make the rule operative. So the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the rules operative, because, in such cases the rules do not come into force until they are approved, whether with or without modification, by Parliament. But in case of a laying clause which requires a negative procedure the coming into force of the rules is not deferred and the rules come into force immediately they are made. The effect of a laying clause of this variety is that the rules continue subject to any modification that Parliament may choose to make when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958 on which the order was published in the Government Gazette or any other date. It would be noticed that while considering the effect of non publication of the aforesaid principles which formed an integral part of the order by which alone the Central Government could regulate the distribution and supply of the essential commodities, it was only incidentally that a mention was made by the Court to the effect that the principles had not been laid before both Houses of Parliament. Likewise the decisions of this Court in Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors [1959] S.C.R. 12and in re: The Kerala Education Bill 1957 (1959 S.C.R. 995: A.I.R. 1958 S.C. 956) are also not helpful to the appellants. The point involved in the present case was not directly in issue in those cases and the observations made therein about laying were merely incidental. From the foregoing discussion, it inevitably follows that the Legislature never intended that non-compliance with the requirement of laying as envisaged by sub-section (6) of section 3 of the Act should render the order void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices ..... X X X X Extracts X X X X X X X X Extracts X X X X
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