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D. Heeralal and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1979CriLJ1454
AppellantD. Heeralal and ors.
RespondentThe State
Excerpt:
.....in these cases, by application of section 6(c) and (e) of the general clauses act, 1897 and section 8(d) and (f) of the a.p. general clauses act, 1891, the landlords have got acquired or accrued right to continue the proceedings despite the coming into force of the amended provision. - it is also submitted, the state can only derive its power to make laws under article 246 of the constitution and not from any other source and therefore section 5 of the act which empowers the state government or its officer to make orders, that is to say to make law is opposed to the federal concept, and consequently the said provision of law as well as the control order made by the state government are unconstitutional and therefore null and void. , concurrent list' enumerates the matters in..........the learned counsel for the petitioners contended that under a federal constitution the state government cannot be authorised by the parliament of india to make law, which again gives power to the state executive to make laws in its turn, as such a law destroys the whole federal concept. it is also submitted, the state can only derive its power to make laws under article 246 of the constitution and not from any other source and therefore section 5 of the act which empowers the state government or its officer to make orders, that is to say to make law is opposed to the federal concept, and consequently the said provision of law as well as the control order made by the state government are unconstitutional and therefore null and void.5. in part xi of the constitution the.....
Judgment:

Jayachandra Reddy, J.

1. In this Criminal Miscellaneous Petition it is contended that Section 5 of the Essential Commodities Act of 1955 and the Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973 are null and void as they are inconstitutional.

2. The facts that gave rise to this petition are as follows :- The three petitioners are the accused in C. C. No. 201 of 1974 on the file of the 11th Metropolitan Magistrate, Secunderabad having been charged with violation of Clause 16 of the Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973, hereinafter referred to as 'the Central Order' and also Section 8 of the Essential Commodities Act, 1955, hereinafter referred to as 'the Act'. The petitioners filed an application before the Metropolitan Magistrate requesting him to state a case for the decision of the High Court that the case involves a question as to the validity of the Act. That application was dismissed. Against that order a revision was filed in this Court. That was also dismissed on the ground that no revision lies against the interlocutory order. Thereafter, the petitioner filed the present criminal miscellaneous petition under Article 228 of the, Constitution of India with a prayer that the High Court may be pleased to withdraw C.C. No. 201 of 1974 on the file of the 11th Metropolitan Magistrate Secunderabad, and determine the substantial question of law as to the validity of the above stated provisions of law.

3. This petition came up for orders before a Division Bench and having regard to the provisions of the new Articles 131-A, 226-A and 228-A of the Constitution the question was referred to the Supreme Court for decision, as the constitutional validity of the Central Act is raised. Later Article 131-A of the Constitution was repealed and the reference was sent back to the High Court and the same has accordingly come up before us for decision.

4. The learned Counsel for the petitioners contended that under a Federal Constitution the State Government cannot be authorised by the Parliament of India to make law, which again gives power to the State Executive to make laws in its turn, as such a law destroys the whole federal concept. It is also submitted, the State can only derive its power to make laws under Article 246 of the Constitution and not from any other source and therefore Section 5 of the Act which empowers the State Government or its officer to make orders, that is to say to make law is opposed to the federal concept, and consequently the said provision of law as well as the control Order made by the State Government are unconstitutional and therefore null and void.

5. In Part XI of the Constitution the relations between the Union and the State are enumerated. Under Article 245(1) the Parliament has power to make laws for the whole or part of the territory of India and the Legislature of the State may make laws for any part or whole of the State. In Schedule VII to the Constitution we find three legislative lists under which there is a distribution of legislative power between the Union and the States which is a normal feature of a Federal Government. List I called 'Union List' enumerates the matters in respeqt of which the Parliament has exclusive power to make laws. List III, viz., 'concurrent list' enumerates the matters in respect of which the Parliament as well as the States have power to make laws. List II which is called the 'State List' contains the matters in respect of which the State has exclusive power to legislate. In the concurrent list, item-1 mentions criminal law. In item 33 the matters specified are 'trade and commerce in and the production, supply and distribution of' various products mentioned therein including food-stuffs, edible oil-seeds, oils. The object of the Essential Commodities Act which is a Central Act is 'to provide, in the interest of general public for the control of the production, supply and distribution of, and trade and commerce in certain commodities'. It can, therefore, be seen that the Act as such is a valid one inasmuch as it was enacted by the Parliament in exercise of the legislative power under Article 246 read with item 33 of List III of the Seventh Schedule to the Constitution of India. Section 3 authorises the Central Government to make such orders necessary for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. Section 5, with which we are concerned is in the following terms:

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 exercisable also by-

(a) such officer or authority sub-ordinate 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.

It is this section that empowers the Central Government to delegate powers to the State Government or any officer or authority subordinate to the State Government to make orders or issue notifications in respect of the matter provided under Section 3. The Central Government can make such a delegation by notified order giving the necessary directions and specifying the matters and also subject to certain conditions. The impugned Control Order was made by the State Government under the powers delegated to it by the Central Government. If such delegation is valid, then there is no question of federal concept being destroyed and consequently the contention of the learned Counsel has to be rejected.

6. It is well settled that the Legislature is free to legislate to the extent of delegating powers in any manner it thinks fit to give effect to its intention and policy in enacting any law.

7. In re : Article 143, Constitution of India and Delhi Laws Act (1912) AIR 1951 SC 332. Saiyed Fazl Ali, J. observed on the subject of delegated legislation, thus:

This form of legislation has become a present day necessity and it has come to stay... it is both inevitable and indispensable. The legislature has now to make so many laws that it has no time to devote to all the legislative details, and sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject.

The Courts have also held that the re-delegation provided under Section 5 of the Act is within the constitutional and legal competence of the Parliament. In Sudhanshu Bhushan Pal v. State of West Bengal : AIR1963Cal61 , the Calcutta High Court considered the scope of Section 5 of the Act and held thus:

This redelegation is also not unreasonable in the context. This further delegation under Section 5 of the Act is also controlled by a number of factors, viz.,

(1) it has to be notified by an order of the Central Government.

(2) The matters and conditions under which such such-delegation has to be exercised by the Authorities specified in Section 5 are to be observed by the sub-delegate.

Parliament's competence to pass such a law is unquestioned. Parliament can select not only the Central Government as an instrument to make the order but also can authorise the Central Government that such instrument may be inter alia a State Government. Besides, this delegation by the Central Government is not abdication of the responsibility under Section 3(1) of the Act because of the word 'also' in Section 5 of the Essential Commodities Act. In other words even where there is a delegation by the Central Government under Section 5 of the Act that delegation is concurrent with the responsibility which still remains with the Central Government under Section 3 of the Act. Therefore, if the sub-delegate in any way acts beyond or in conflict with the Central Government, the Central Government can certainly withdraw the delegation. That again is good enough control of the sub-delegation under Section 5 of the Essential Commodities Act.

In Maram Ramachandraiah v. State : AIR1969AP414 , while upholding the validity of Section 5 of the Act the Court held that the Andhra Pradesh Sugar Dealers' Licencing Order, 1963 made by the State Government by virtue of the delegation of powers under Section 5 is also a valid one. In State of A.P. v. Potta Sanyasi : [1976]1SCR423 , their Lordships of the Supreme Court considered the scope of delegation of power by the Central Government under Section 5, and held thus:

Delegation under Section 5 is a general delegation and will inure in favour of exercise of power by the State Government with respect to commodities declared essential by the Central Government from time to time under Section 2(a)(xi) even subsequent to the order of delegation.

8. The above discussion shows that the delegation of power as provided under Section 5 has been upheld by the Courts. It, therefore, follows that the contention that the federal concept would be affected, has to be rejected.

9. It is next contended that the Control Order is contrary to Articles 20 and 21 of the Constitution inasmuch as the State Government or an officer is authorised 'to create offences'. We see no force in this submission. The penalties are provided in Section 7 of the Act itself. The State Government made the Control Order by virtue of the powers delegated by the Central Government under Section 5 and the the powers conferred under Section 3 of the Act. The Control Order is meant to ensure the availability of the essential commodities to the consumers which is the main object of the Act. It is Section 7 of the Act that makes any contravention of the control order made under Section 3, punishable. It can thus be seen that the control order is one of the devices, to implement the object of the Act and it does not create an offence by itself. It is the contravention of this order that is made punishable under the Act. These are all the contentions raised and the learned Counsel has not placed any decided cases before us in support of these contentions.

10. For the reasons stated above, we dismiss the Criminal Miscellaneous Petition.


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