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Kunni Lal and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ101
AppellantKunni Lal and anr.
RespondentRex
Excerpt:
- - 3. the learned sessions judge was of opinion that the revision application of chunni lal bad no force and he rejected it......maintained and the periodical return was not submitted as required by the order of the deputy town rationing officer made under rr. 33 and 84, banaras regulated town cloth rationing order, 1946, which was promulgated by the district magistrate of banaraa.5. rules 33 and 34, banaras regulated towa cloth rationing order, 1946, run as follows:33. the authorized retail distributor shall correctly maintain such registers as deputy town rationing officers (cloth) may order from time to time.34. the authorised retail distributor shall submit to deputy town rationing officer (cloth) a periodical return (s) in manners directed by him from time to time.6. empowered by these rules, the deputy town rationing officer promulgated the following order:under section 83 of the above order i direct.....
Judgment:
ORDER

Agarwala, J.

1. Chunni Lal and Kunni Lal were found guilty of a breach of Rr. 33 and 34, Banasas Regulated Town Cloth Ratitioning Order 1946, read with 8, 7, Central Act, XXIV of 1946, by a learned Magistrate of the first claBS of Banaras and were each sentenced to a fine of Ha. 80 for breach of B. 33 and to a fine of Ea. 15 for breach of B. 34.

2. Against their conviction and sentence of fine they went up in revision to the learned Sessions Judge of Banaras.

3. The learned Sessions Judge was of opinion that the revision application of Chunni Lal bad no force and he rejected it. He has, how-aver, referred the revision application of Kunni Lal.

4. The prosecution case was that Chunni Lal is a licensed retail distributor of cloth in Banaras and Kunni Lal is the salesman in the shop of Chunni Lal. On 2nd August 1946, the shop in question was searched. Chunni Lal was - not present. The search party took away a stock register, Ex. P.l. It was found that the register was not correctly maintained and the periodical return was not submitted as required by the order of the Deputy Town Rationing Officer made under Rr. 33 and 84, Banaras Regulated Town Cloth Rationing Order, 1946, which was promulgated by the District Magistrate of Banaraa.

5. Rules 33 and 34, Banaras Regulated Towa Cloth Rationing Order, 1946, run as follows:

33. The authorized retail distributor shall correctly maintain such registers as Deputy Town Rationing Officers (Cloth) may order from time to time.

34. The authorised retail distributor shall submit to Deputy Town Rationing Officer (Cloth) a periodical return (s) in manners directed by him from time to time.

6. Empowered by these Rules, the Deputy Town Rationing Officer promulgated the following order:

Under Section 83 of the above order I direct that all authorised retail distributors shall maintain the following registers:

(i) Daily Sales Register, indicating the number of Ration cards and the quality and quantity of the Rationed Cloth to be issued to card holders.

(ii) A Stock Register indicating the quantity of cloth in stock at any time. This shall be maintained separately for the separate category as shown in Such. II of the above order.

(iii) An Inspection Register.

All these registers should be used after getting them stamped with my official seal.

Under Section 34 of the above Order I hereby direct all retail distributors to exsubmit to me a monthly return on the 1st day of each month, indicating the quantity of stock at the Beginning of the previous month, quantity Bold during the month and quantity left over at the end of the months.

The above order shall be publicized by sending a copy of the order to:

(1) The Secretaries, Kashi Kaprn Vyapar Manual and Kashi Kapra Soot Yyapar Mandal Banaras.

(2) Editors, 'Aj', 'Sansar' and 'Banmarg', Banaraa.

(3) By fixation of a copy of the order on'the notice board of the Town Rationing Officer Banaras.

7. Prom a perusal of the above orders it is quite clear that no liability is thrown on the shoulders of a salesman, and in the circumstances the conviction of Kunni Lal cannot be maintained.

8. Counsel appearing on behalf of the accused has urged that although the revision application of Chunni Lal has been dismissed by the learned Sessions Judge and although there is no separate application filed by him in this Court, yet, since the whole matter is before me I should take notice of it suo motu and pass a suitable order. His contention is that the conviction is really for a breach of the order of the Deputy Town Rationing Officer; that the Deputy Town Rationing Officer had no power to pass any order unless the District Magistrate had power to delegate his own powers to him; that the District Magistrate had no power of delegation ; and that, therefore, the conviction of Chunni Lal also must be quashed.

9. Ordinarily I would not have entertained this request in the absence of any application in revision by Chunni Lal, but as learned Counsel has raised an important question of law I think I should decide it.

10. Under Section 2 (l), Defence of India Act (Act xxxv of 1939) the Central Government was authorized by notification in the Official Gazette to make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the community. By Sub-section (4) of that section, the Central Government was authorised to delegate its powers or duties under sub-r. (2) to any officer or authority subordinate (a) to the Central Government or (b) to the Provisional Government or any officer or authority subordinate to such Government. By Sub-section (5) Of Section 2 of the Act the

Provincial Government wag empowered to direct that any power or duty which by rule made under Sub-section (1) is conferred or imposed on the Provisional Government, or which being by such rule conferred or imposed on the Central Government, has been directed under Sub-section (4) to be exercised or discharged by the Provisional Government, shall be exercised or discharged by any officer or authority, not being an officer or Authority subordinate to the Central Government.

11. The Central Government promulgated Rules which are known as the Defence of India Rules. Rule 81, sub-r. (2) empowers the Central Government or the Provincial Government to make orders

for regulating or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever.

12. By Notification nov6468/c.x..C.d., published in the U. P. Gazette, Extraordinary, dated 22nd December 1941, in exercise of the powers conferred by Sub-section (5) of Section 2, Defence of India Act, 1939, (xxxv [85] of 1939), the Governor of the United Provinces was pleased to direct -

that the powers specified in the first two columns of the Schedule annexed hereto, which have either been conferred on the Provincial Government by the rules made under that Act or which, being by such rules conferred on the Central Government are by virtue of directions issued by the Central Government under Sub-section (4) of Section 2 of that Act to be exercised by the Provincial Government, shall he exercised within their local jurisdictions by the officers specified in column 3 of the schedule subject to the conditions specified in column 4 of that schedule.

The schedule mentioned in the notification authorised all District Magistrates and the Sub. Divisional Officers of Kumaun, Roorkee, Lalit-pur, Mahoba, Karwi and Chakrata to issue orders under E. 81, Defence of India Rules or .Concerning the general control or industry and also concerning certain other matters. It was under the power conferred by this notification that the District Magistrate promulgated the Banaras Regulated Town Cloth Rationing Order of 1946.

13. As the Defence of India Act expired on the termination of the war on 30th September 1946, the rules and orders passed under the authority of that Act continued to have their effect by reason of the Essential Supplies (Temporary Powers) Ordinance, 1946, (No XVIII of 1946). This Ordinance was re-enacted with certain modifications in the shape of Central Act No. XXIV of 1946 and by virtue of Section 17 of that Act

any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act.

14. Now it will be clear from a perusal of the above provisions of law that no authority has been conferred on District Magistrates to delegate any part of their powers to any sab. ordinate official.

15. If Rules 33 and 34 of the District Magistrate's order stood by themselves the accused could not have been punished at all because those rules could not be contravened in the absence of orders passed by the Deputy Town Rationing Officer. The order of the Deputy Town Rationing Officer is therefore the order (in this case) which has been contravened.

16. The learned Sessions Judge Bays that this is not a case of delegation of power by the District Magistrate, but that it is a case in which the District Magistrate has merely relegated certain ministerial functions to be performed by a subordinate official.

17. The general rule relating to delegation of powers is expressed in the maxim delegates non protest delegare. But there are two exceptions to this rule: one is that a power which is merely ministerial and involves no personal discretion can be delegated-(Halsbury's Laws of England, Hailsham Edn., Vol. XXV, p. 526), and the other is that a power may be delegated to another person where from the conduct of the parties, the usage of trade or the nature of the particular business which is to be done by the done of the power, it may reasonably be presumed that the parties originally intended that such authority should exist-De Bussche v. Alt, (1878) 8 Ch. D. 286 (810) : 47 Ii. J. Ch. 381).

18. These principles, however, can have no application to the delegation of legislative powers. Where a Legislature empowers the executive to make bye-laws or rules to apply to particular cases or localities laws enacted by it, it is that particular executive authority which is indicated by the Legislature or by such person to whom the Legislature gives the power of nomination that can act under the power be delegated and no other official can so act. The executive official to whom the power to act has been given by the Legislature or by the nominee of the Legislature cannot himself delegate any portion of his powers to any other official unless he is expressly authorised to do so. There can be no implication of the power of delegation in such a case. The Legislature is expected to be precise and complete in the expression of its intentions and when it says that it delegates a power to a particular individual it excludes the possibility of further delegation of that power by the person so empowered.

19. Again, it cannot be said that the delegation in this case was merely of ministerial powers and not of the exercise of personal discretion. What has been delegated involves a personal discretion to be exercised on the part of the Deputy Town Rationing Officer. It is the Deputy Town Rationing Officer who has to decide what would be the proper form in which the stock registers should be kept and for what .period the returns should be submitted.

20. Furthermore, it will be observed that the question how the order of the Deputy Town Rationing Officer is to be notified to the persons concerned as required by Rule 119 of the Defence of India Rules has also apparently been left to the Deputy Town Rationing Officer. All these questions involve personal discretion.

21. In my opinion the District Magistrate had no power to delegate to the Deputy Town Rationing Officer any part of his own authority conferred upon him by the notification of the Provincial Government dated 22nd December 1941. Rules 33 and 84 of the Benaras Regulated Town Cloth Rationing Order, 1946, and the orders passed by the Deputy Town Rationing Officer are there. fore ultra vires and no conviction can be based upon any contravention thereof. I therefore accept the reference and, in the exercise of my revisional powers, set aside the conviction of Ghunni Lai and Chunni Lai and remit the fine, The fine, if paid, shall be refunded.


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